Howard v. State, 13529.
Decision Date | 08 October 1930 |
Docket Number | No. 13529.,13529. |
Citation | 32 S.W.2d 858 |
Parties | HOWARD v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from Nacogdoches County Court; F. P. Marshall, Judge.
W. C. Howard was convicted of simple assault, and he appeals.
Reversed and remanded.
Adams & McAlister, of Nacogdoches, for appellant.
A. A. Dawson, State's Atty., of Canton, for the State.
Conviction for simple assault; punishment, a fine of $5.
The prosecuting witness swore that, while in some debate with appellant over the present payment of rent, the latter ran his hand into his bosom and pulled out a pistol sufficient to show the cylinder and some inches of the barrel; that appellant then put the pistol back, but kept his hand in his bosom during the remainder of the controversy. This, if believed, might make out a case of assault under that part of article 1141, P. C., which states that the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances reasonably calculated to effect that object, comes within the meaning of an assault.
There are no bills of exception in this record. Appellant asked two special charges, but neither carries thereon notation of any exception taken to its refusal, nor is the court's action in such refusal made the subject of a separate bill of exceptions. The rule is quite clear that in misdemeanor cases such refusal must be brought to the attention of the appellate court by bill of exceptions. Daniel v. State, 90 Tex. Cr. R. 225, 234 S. W. 77; Crispi v. State, 90 Tex. Cr. R. 621, 237 S. W. 263; Traylor v. State, 91 Tex. Cr. R. 262, 239 S. W. 982. In this condition of the record we have nothing to review save the sufficiency of the testimony. When there is enough evidence in the record, if believed, to make out a case, this court will not disturb the verdict.
The Judgment will be affirmed.
On Motion for Rehearing.
The following is a synopsis of the state's evidence: The son of B. M. Ellis was a tenant upon the farm of the appellant, Dr. Howard. The tenant abandoned the crop, and placed it in the possession of his father, B. M. Ellis, who claimed to have made him some advances. B. M. Ellis sold a bale of cotton on which the appellant had a landlord's lien for his rent. Ellis was sought by the appellant and the rent demanded from him. Ellis had obtained a check in payment of the bale of cotton. He told the appellant that he did not have the money, but that he would pay him after collecting the check. Using an oath, appellant said he intended to have the money. He put his hand in his bosom and pulled out a pistol just far enough so that about two inches of the barrel and cylinder could be seen. He did not take the pistol out of his bosom. Together they went to the bank, and Ellis surrendered the check that he had received for the bale of cotton. Other checks were issued; one in favor of the appellant for the amount of the rent and the other to Ellis for the remainder.
Howard testified in his own behalf. His testimony was to the effect that he learned that his cotton had been sold and sought Ellis and demanded the payment of the rent. Ellis stated that he was not going to pay it then. Appellant said that he thought he (Ellis) would pay it then. Ellis, who was described as a "big double-jointed fellow," much larger than Howard, started at him. Howard put his hand to his bosom in order to ward off the blow. He had had some experience as a boxer, and put his hand in a defensive position, believing that he was about to be attacked. Being convinced of the earnestness of the appellant, Ellis accompanied him to the bank, where the rent was paid in the manner stated above, which was...
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