Harris v. State

• Decision Date: 09 March 1927
• Docket Number: (No. 10365.)
• Citation: 293 S.W. 822
• Parties: HARRIS v. STATE.
• Court: Texas Court of Criminal Appeals

293 S.W. 822

HARRIS v. STATE.

(No. 10365.)

Court of Criminal Appeals of Texas.

March 9, 1927.

Rehearing Denied April 27, 1927.

Appeal from District Court, Coleman County; J. O. Woodward, Judge.

Lee Harris was convicted of aggravated assault and battery, and he appeals. Affirmed.

Dibrell & Snodgrass, of Coleman, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Conviction is for aggravated assault and battery; the punishment being nine months' imprisonment in jail.

Appellant sought a continuance on account of the absence of the witness Nichols. It is conceded by the state that proper diligence is shown to secure the attendance of this witness, but insists that, if the witness had been present, he would not have been permitted to testify to the things set out in the application for continuance, because they are conclusions only and not statements of any fact. We are inclined to believe this criticism of the application is well founded. Nowhere in the application is it averred that Nichols would have testified that he was present and saw the difficulty. It is not stated that witness would have testified to any fact from which the jury might have drawn conclusions, but only that witness himself proposed to testify to conclusions.

Appellant devotes several pages of his brief to discussion of the refusal of a requested special charge, which was designed to advise the jury of his rights where there was more than one assailant. This charge is only marked "Refused." There is no notation on it over the judge's signature showing that any exception was reserved to its refusal, and no separate bill is found bringing the question forward for review. It is essential that complaint of the refusal of a special charge be preserved by exception in one of the ways mentioned. Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703; Bland v. State, 92 Tex. Cr. R. 636, 244 S. W. 1023; Cunningham v. State, 97 Tex. Cr. R. 624, 262 S. W. 491. We regret that this matter cannot be considered.

Appellant was indicted for assault to murder one Reed. The state conceded that the felony charge could not be sustained, and aggravated assault only was submitted. The court defined assault, and informed the jury that it would become aggravated when serious bodily injury was inflicted. Section 7, art. 1147, P. C. 1925. In applying the law the court told the jury, in substance, that, if they found from the evidence that appellant committed an aggravated assault upon Reed by inflicting upon him serious bodily injury, appellant would be guilty of an aggravated assault. Objection was urged to the form of the charge. Under the facts, we think appellant could not have sustained injury thereby. That appellant cut Reed several times with a knife seems to have been a conceded fact, and there was no issue raised but that one stab went into the lungs and was quite serious. We are forbidden to reverse a judgment upon instructions given or refused, unless an error is shown which was "calculated to injure the rights of defendant." What we have just said applies also to the criticism of the charge on self-defense. Taking the instruction upon that subject in its entirety, we think the objections are not meritorious, and that the jury could not possibly have been misled thereby to appellant's hurt.

The court furnished the jury with four forms of verdict, one providing for finding appellant not guilty, the other three providing for finding him guilty of aggravated assault and battery, and for assessing the punishment by fine only, or by fine and "imprisonment in jail ____ months," or for only "imprisonment in jail ____ months." Objection was made because no form was furnished for a verdict of simple assault. This issue was not submitted; hence no necessity for a form of verdict as to that offense. Another objection was that, the court having used the term "months" in the forms providing for imprisonment, it was calculated to impress the jury that it was the opinion of the court that appellant's punishment should be assessed at more than one month. Our opinions are not in harmony upon the propriety of furnishing forms of verdict. Some hold it to be a commendable practice. Williams v. State, 24 Tex. App. 637, 7 S. W. 333; Oates v. State, 51 Tex. Cr. R. 449, 103 S. W. 859; Crook v. State, 27 Tex. App. 198, 11 S. W. 444. Other opinions discourage the practice. See Smith v. State, 103 Tex. Cr. R. 103, 280 S. W. 200; Hickox v. State, 95 Tex. Cr. R. 173, 253 S. W. 823. But all are agreed that, if forms are provided, the court should include a form for every verdict which might be returned under the evidence and instructions of the court so as to avoid conveying to the jury any impression as to the judge's opinion as to what particular verdict should be rendered. Branch's Ann. Tex. P. C. § 657. Unless the forms provided in the present case violate the latter principle, the action of the court should not be held to call for a reversal. The charge advised the jury that the punishment for aggravated assault and battery might be either a fine alone or imprisonment in jail not less than one month nor more than two years, or by both such fine and imprisonment. In view of this instruction, it seems rather far-fetched to conclude that, because the court used the term "months" in the form of verdict, the jury was impressed that the court thought the verdict should be imprisonment for more than one month. The form of verdict furnished could scarcely have been instrumental in leading the jury to hit on nine months as the punishment rather than two, four, or seven. We think the objection is more theoretical than practical.

Reed was permitted over objection to remove his clothing and exhibit to the jury scars left on his body by the wounds inflicted by appellant. These scars were several in number; being of an ugly and discolored appearance. The objection urged was that physicians present could testify to the nature and character of the wounds, and that their exhibition to the jury tended to solve no issue in the case. This objection cannot be sustained. The state was seeking conviction of aggravated assault, based on the claim that the wounds inflicted were of a serious nature. Appellant by his plea of "not guilty" had put the state upon proof of every material fact necessary to convict. One of these facts was the nature of the wounds. The state could establish this fact by any legitimate evidence at hand, and appellant could not dictate that the state proceed in any particular manner to make out its case. The wounds exhibited enabled the jury to pass upon the question as to whether serious bodily injury had been inflicted. The fact that physicians could testify, and did later testify, that Reed was confined in the hospital ten days, and that the wounds were of a serious nature, would not render inadmissible their exhibition before the jury. We are referred by appellant to the cases of Newman v. State, 85 Tex. Cr. R. 556, 213 S. W. 651, and also to Mahaney's Case, 95 Tex. Cr. R. 443, 254 S. W. 946, which quotes from the opinion in Newman's Case, where it was held that wounds upon a witness should not have been exhibited to the jury. Attention is called to the fact that Newman was convicted of manslaughter. The witness Pruett, who was permitted to exhibit wounds upon his person, was a participant in the difficulty which resulted in the death of the party killed by Newman. The holding in that case was unquestionably correct, in that the exhibition of wounds upon the witness solved no issue in the case where accused was being tried for the killing of another party. The Mahaney opinion takes no note of the particular facts of the Newman Case upon the point under discussion, and the quotation from the latter case is upon the general proposition relative to the exhibition of wounds. We call attention to the peculiar facts in the Newman Case to avoid confusion in the application of the law to facts which may be entirely different. See, also, Graves v. State, 58 Tex. Cr. R. 42, 124 S. W. 676; Chapman v. State, 66 Tex. Cr. R. 489, 147 S. W. 580. The principle involved in the present case is very similar to that before the court in Trigg v. State, 99 Tex. Cr. R. 376, 269 S. W. 782, where the introduction of a coat worn by deceased was introduced in evidence.

Appellant became a witness, and, while being cross-examined, he was asked by the district...