Hogue v. State

• Decision Date: 13 March 1912
• Citation: 146 S.W. 905
• Parties: HOGUE v. STATE.
• Court: Texas Court of Criminal Appeals

146 S.W. 905

HOGUE v. STATE.

Court of Criminal Appeals of Texas.

March 13, 1912.

Rehearing Denied May 1, 1912.

Appeal from District Court, Dallam County; D. B. Hill, Judge.

R. S. Hogue was convicted of aggravated assault, and he appeals. Affirmed.

Charles F. Clint and Tatum & Tatum, for appellant. C. E. Lane, Asst. Atty., Gen., for the State.

HARPER, J.

Appellant was indicted, charged with assault to murder. He was convicted of the offense of aggravated assault, and his punishment assessed at two years' confinement in the county jail.

It appears that appellant was sick with a cold or bronchial affection, and called in Dr. J. W. Hale. Dr. Hale prescribed for him, and in a few days thereafter appellant wrote him a note, which the doctor deemed insulting, and he refused to prescribe further. When appellant got well he met the doctor in the post office in the town of Dumas. The doctor spoke to him, when appellant informed him that he would shortly pay his bill, when he did not want the doctor to speak to him again. Later in the day, appellant was in Dr. Hale's drug store, and some words passed between them about the contents of the note, which the doctor had returned to appellant; the doctor stating certain language was in the note, which appellant denied. The doctor then stated if such language was not in the note he would apologize to appellant for his conduct. Four or five days later appellant again came to town and asked Dr. Anthony and Mr. Garrett to go to the drug store with him. When they all got in the drug store, he produced the note, and asked Dr. Hale to read it. When he had done so, appellant insisted that the language Dr. Hale had said was in the note was not contained therein. Dr. Hale stated it was there in substance, and declined to apologize, but agreed to let Dr. Anthony and Mr. Garrett see the note, and if they said it was not insulting to a physician he would apologize. Appellant stated that was not the agreement; the agreement was, if the language stated by Dr. Hale was not in the note, he was to apologize, and if he did not do so he (Hale) was a liar. Dr. Hale ordered him out of his drug store. Appellant again called him a liar, when Dr. Hale stepped towards him. Appellant drew a dirk knife and cut or cut at Dr. Hale, when Dr. Hale backed out of his drug store; appellant following him. Getting outside of the drug store, Dr. Hale ran around the side of the store; appellant cutting him in the back with the dirk, penetrating his lung. Dr. Hale ran by a plank and picked it up, when appellant shoved him over and got on him. Hale grabbed the right arm of appellant, he having the dirk in that hand, when others interfered and separated them. Mr. Garrett, Dr. Anthony, and several others testify that Dr. Hale made no assault on appellant, but that appellant assaulted Dr. Hale, when he ordered appellant out of his store; that Hale had nothing, backed off and ran, appellant running after him. Dr. Hale was stabbed in the back, was cut on the cheek, and the sleeve of his coat cut. Appellant's daughter, Miss Vashti Hogue, testified that Dr. Hale ordered her father out of his drug store, slipped his hand down toward his hip pocket, and put his hand in his shirt and rushed towards her father, and struck at appellant, when appellant drew his knife; that her father had blood on him, and he had his left hand cut across the knuckle; that the ball of his thumb was split open and right forefinger cut across. She is the only witness who testifies to Dr. Hale committing any overt act.

1. When the case was called for trial, appellant filed an application for a continuance on account of the absence of several witnesses. By all of them, except two, he stated he expected to prove his general reputation for truth and veracity, and peace and quietude. This fact was sworn to by a number of witnesses on the trial; the state introducing no witness on this issue. It is the rule that a continuance will not be granted to prove reputation in these respects. Parks v. State, 35 Tex. Cr. R. 378, 33 S. W. 872, and cases collated in section 611 of White's Code of Crim. Proc.

By the witness W. J. Hogue he states he expected to prove that he (appellant) was in the habit of carrying arms because he believed he was in peril at the hands of an assassin; that on two separate occasions in his youth appellant was seriously injured in his head by kicks from animals, and on another occasion became seriously overheated; that defendant is easily shocked, gets beyond himself, and is incapable of cool reflection, and at such times is incapable of knowing right from wrong. By the witness Mrs. M. A. Jackson he states he expects to prove that his mother, a short time before appellant's birth, was attacked by a lunatic and her nervous system seriously and permanently injured, and this caused the nervous system of appellant from his youth up to be more or less impaired. That one of defendant's pleas will be insanity, and this testimony is material, and will be the basis for hypothetical questions to be submitted to expert physicians who are present to testify. The father of the injured party was present and testified to all the facts he states he expected to prove by these witnesses, and the hypothetical questions could have been based on his testimony. In passing on the questions of whether the court erred in overruling the application for continuance, we must do so in the light of the testimony adduced on the trial of the case, and when we find in the record all the facts testified to by a witness in attendance on court which defendant states he expected to form the predicate for hypothetical questions, and only one physician asked any question in regard to the matter, and this witness testifying that appellant knew right from wrong, and had sufficient intelligence to know that it was wrong to make an assault of the character made in this case, we conclude that the court did not err in overruling the application for a continuance. Three other physicians were placed on the witness stand by appellant who had known him for many years, and who testified that his reputation was that of a good citizen, but to none of them was the hypothetical question propounded, nor was it sought to prove by them any fact or circumstance which would tend to show that appellant should not be held responsible for his acts.

This court has never recognized the doctrine that a person with a mind below normal should be punished for a lower grade of offense if found guilty than a person of normal mind. The only relief offered any person of unsound mind under our statute and practice is that if such person is incapable of knowing and understanding the act, when committed, to be a wrong, he is not susceptible to any punishment. It would be a strange principle indeed if the courts were permitted to speculate as to the degree of intelligence existing in the minds of persons charged with crime, unless some limitation or point was reached where culpability ceased, and when that point was reached he was not culpable. Our ...