Hooper v. State

• Decision Date: 17 June 1891
• Citation: 16 S.W. 655
• Parties: HOOPER v. STATE.
• Court: Texas Court of Appeals

16 S.W. 655

HOOPER v. STATE.

Court of Appeals of Texas.

June 17, 1891.

Appeal from district court, Shelby county.

Appeal of Sam Hooper from a conviction of assault with intent to kill.

D. M. Short & Son, for appellant. R. H. Harrison, for the State.

DAVIDSON, J.

Appellant sought a continuance for the testimony of John Cooper. By him it was expected to be shown that the appellant did not make an assault upon McGown, the party charged to have been assaulted. The difficulty occurred on Emancipation day and in a passenger-car. The car was crowded with negroes and a few white people. An unusual number of witnesses testified to the facts attending the difficulty, and nearly every one of them were eye-witnesses thereto. Nearly every witness who testified for defendant swore that he did not make the assault, and had no pistol at the time. The state's witnesses testified that defendant did make the assault, and did so with a pistol. We do not think the testimony of Cooper either material or probably true, when taken in connection with the other evidence adduced on the trial. The testimony of various witnesses was the same as that expected to be furnished by Cooper, and they fully supplied his evidence. "No injury could possibly have resulted to the defendant because of the absence of his testimony. It has been held by this court that if substantially the same testimony as that which is absent has been produced on the trial, the accused cannot complain, and such, we think, was the case as to the testimony of" the witness Cooper. Walker v. State, 13 Tex. App. 642, 643; Allison v. State, 14 Tex. App. 402; Fisher v. State, 4 Tex. App. 181; McCarty v. State, Id. 461. Again, the evidence was directly in conflict between the state and the defendant with reference to the facts constituting the guilt of the accused, as well as the facts set forth in the application for continuance. In reference to such state of case this court has said: "If there be such a conflict between the inculpatory facts and those set forth in the application as to render it improbable that the facts in the application are material and probably true, the continuance should be refused, and hence a new trial based thereupon should be refused." McAdams v. State, 24 Tex. App. 101, 5 S. W. Rep. 826.

While the difficulty was in progress there was great confusion in the car where it occurred. While testifying as a witness, Goddy said that he remarked to one King that such conduct was intolerable. This remark was made by the witness at the time of the disturbance and difficulty. This testimony was objected to by defendant. The bill of exception does not make it at all manifest that this remark was made with reference to the conduct of defendant any more than to the conduct of all parties connected with the difficulty and the general disturbance in the car at that time. In fact, the bill does not specifically show about whom the remark was made, or to what it referred. In order to supply the omissions in the bill recourse must be had to inference. This we are not required to do. Willson, Crim. St. §§ 2368, 2516. Bills of exception must be so full and certain in their statements that in and of themselves they will disclose all that is necessary to manifest the supposed error. Eldridge v. State, 12 Tex. App. 208; Davis v. State, 14 Tex. App. 645; Walker v. State, 9 Tex. App. 200; Henning v. State, 24 Tex. App. 315, 6 S. W. Rep. 137. But suppose it be admitted that the remark was applied to the defendant alone, and his conduct on this occasion referred to, then we fail to perceive the injury to appellant in the evidence in the case. The defendant was quite boisterous and cursing vociferously in the car when it was crowded to its utmost carrying capacity with men,...