Hinton v. State

• Decision Date: 10 January 1912
• Citation: 144 S.W. 617
• Parties: HINTON v. STATE.
• Court: Texas Court of Criminal Appeals

144 S.W. 617

HINTON v. STATE.

Court of Criminal Appeals of Texas.

January 10, 1912.

On Rehearing, February 21, 1912.

Appeal from District Court, Austin County; John T. Duncan, Special Judge.

John Hinton was convicted of aggravated assault, and he appeals. Reversed and remanded.

Mathis & Teague and Johnson, Matthaei & Thompson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted by the grand jury of Austin county, charged with assault to murder. When tried, he was convicted of an aggravated assault.

The Assistant Attorney General has filed a motion to dismiss this appeal because of the insufficiency of the recognizance. The recognizance merely states defendant has been convicted of the "offense of aggravated assault," and the motion must be sustained. Killingsworth v. State, 7 Tex. App. 28.

The appeal is dismissed.

On Rehearing.

At a former day of this term, this cause was dismissed because of the insufficiency of the recognizance. Appellant has filed a recognizance in accordance with the rules of this court promulgated in the case of Burton v. State, 48 Tex. Cr. R. 544, 90 S. W. 498, and the cause is ordered reinstated, and we will consider it on its merits. Appellant was convicted of aggravated assault, and his punishment assessed at a fine of $500 and imprisonment in jail for six months.

The first ground of the motion refers to the action of the court in overruling his motion for continuance. No bill of exceptions was reserved to the action of the court if he overruled the motion for continuance; consequently we cannot consider this matter. Trevino v. State, 38 Tex. Cr. R. 64, 41 S. W. 608, and cases cited in section 645, White's Code of Crim. Proc.

As a part of the law on self-defense, the court instructed the jury: "If you believe from the evidence that at the time of the assault, if any, the injured party was making an attack on the defendant with a plank, and if you believe from all the evidence that there reasonably appeared to the defendant at that time that he was in danger of losing his life, or was likely to suffer serious bodily harm from said supposed attack, you will acquit the defendant." The appellant complains of this paragraph on the ground that the court's reference to the attack by the injured party upon defendant (as testified to by appellant) as a "supposed attack" unquestionably conveyed the idea to the minds of the jury that the court did not regard it as a real attack; that it could mean, and the jury doubtless accepted it as meaning, nothing more or less than that, while the defendant offered evidence of an attack, the court regarded such evidence as being untrue or doubtful. The court should not have used the words "supposed attack," and we are inclined to think that the criticism of appellant is justified. Appellant testified that the prosecuting witness accused him of being the father of a bastard child, and he did not resent it, but sat down in the door; that Unseld then secured a board, about two feet long, a 1×6, and made a remark about appellant's father, when appellant touched him with his foot; that Unseld then raised the board, as if to strike, when he cut him with a knife; that he would not have cut him if he had not attempted to strike him with the board. The only eyewitness, other than appellant and Unseld, the party, was Mr. Lange, who testified that he and appellant were sitting in the door when Unseld came to where they were, got a plank six inches broad and about two feet long, and sat down on it, and commenced hurrahing appellant about a baby that he alleged was appellant's and which appellant denied. Unseld then made a remark about appellant's father, when appellant kicked him. Unseld then jumped up with the plank raised, when appellant cut him. Unseld dropped the plank, and appellant did not cut him but one time. That appellant and witness hitched up the buggy and carried Unseld to Bellville for treatment. Unseld denied having a plank, denied making any threatening gesture, and testified that appellant cut him at a time when he was not looking at him.

The court's charge, above quoted, was calculated to lead the jury to believe that in the opinion of the court there was no attack made on defendant, and the witness Unseld had told the truth. Appellant had a right to have the theory of himself and the witness Lange submitted to the jury, and it was error for the court to so word the charge on self-defense as to impress the jury that in the opinion of the court the defense offered was but a "dream" — a supposed, and not a real, attack. The issue was squarely drawn between the testimony of the state and defendant, and this was an issue to be passed on by the jury, viewed in the light as it reasonably appeared to appellant at the time.

By another bill, it is made to appear that the district attorney in his closing argument used the following language: "If I did not believe a man was guilty in my heart, I would not prosecute him; and, if I did not believe that defendant was guilty of assault to murder in this case, I would tender my resignation to the Governor of the state of Texas, before I would prosecute him." This alone would not present ground for a reversal; but it has always been held that it is improper for the...