Harding v. State

• Decision Date: 04 February 1948
• Docket Number: No. 23920.,23920.
• Citation: 208 S.W.2d 892
• Parties: HARDING v. STATE.
• Court: Texas Court of Criminal Appeals

208 S.W.2d 892

HARDING v. STATE.

No. 23920.

Court of Criminal Appeals of Texas.

February 4, 1948.

Rehearing Denied March 17, 1948.

Appeal from Criminal District Court, Tarrant County; Willis M. McGregor, Judge.

W. J. Harding was convicted of assault to murder, and he appeals.

Judgment affirmed.

Hardin, Bransford & Hardin, of Fort Worth, for appellant.

Alfred M. Clyde, Cr. Dist. Atty., and W. E. Myres, Asst. Cr. Dist. Atty., both of Fort Worth, and Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of an assault to murder and given a penalty of eight years in the penitentiary.

On January 23, 1947, Corporal Daniel Sanner was in the city of Fort Worth, and about 11:00 P.M., he was in front of the Seibold Hotel looking for a bus. There was a cab setting nearby. He approached the driver thereof and asked to be taken out to his base. The driver told him that as soon as he got through with the man with whom he appeared to be arguing, he would take the corporal to his destination. The person with whom the driver was arguing told Sanner to "mind his own business." Sanner then turned to the cab driver and again asked to be taken home. About that time he felt a knife being driven in his back. The knife penetrated his lung and he lost consciousness. He later woke up in a hospital. It took twenty-three stitches to close the wound after a delicate operation. Sanner had never seen appellant before. He thought that appellant was drunk and knew of no reason why he should cut him.

The physician who waited on Corporal Sanner testified that the knife wound entered in front of the body below the ninth rib, and there was a portion of the greater omentum protruding through the wound which collapsed the left lung; that it would have caused his early death had he not rescinded (removed) a rib, sutured the damaged spleen and also the laceration of the diaphragm, re-expanded the lung and closed the cavity.

It appears from the testimony of the cab driver, who was a State's witness, that appellant was drunk; that they were arguing about the amount of money owed him by appellant; that the injured party happened to walk between the two parties thus arguing at the time, when appellant cut at the cab driver with his knife and struck the soldier.

Bills of Exception Nos. 1 and 2 relate to the insufficiency of the evidence and are overruled.

Bill No. 3 relates to the witness Sanner being allowed to testify that he had been overseas for a year and a day. The bill shows no reason for the objection except that appellant objected thereto after the answer was given that the witness had been overseas. Appellant offered in evidence his honorable discharge from the U. S. Army and his service therein of nine months. We do not see any error shown in such bill.

Bill No. 4 relates to an objection to the injured party testifying that he thought appellant was drunk at the time of the assault. We think the bill shows the witness to be sufficiently qualified to express his opinion in such a matter.

Bills Nos. 5 and 6 show that while on the witness stand in his own behalf, appellant testified that he was sentenced to the penitentiary in 1939 for robbery by assault under a five-year penalty; that he was released therefrom in 1940, and had not been convicted thereafter of any offense. In order to forestall the introduction of such proof prior to his taking the witness stand, appellant filed a motion requesting that the trial court instruct the State's attorney to refrain from asking appellant about such conviction since he had not been thereafter convicted of any offense. This the trial court properly refused to do. It was shown upon a retirement of the jury that appellant had been convicted of felony theft in 1927 in the Federal Court and given a five-year suspended sentence. We think this conviction was admissible relative to the credibility of the witness. It also appears from said bill that although this matter was gone into in the absence of the jury, the court's qualification to ...