Irlbeck v. State

• Decision Date: 10 June 1931
• Docket Number: No. 14057.,14057.
• Citation: 40 S.W.2d 124
• Parties: IRLBECK v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W.2d 124

IRLBECK v. STATE.

No. 14057.

Court of Criminal Appeals of Texas.

June 10, 1931.

Commissioners' Decision.

Appeal from Swisher County Court; W. A. Graham, Judge.

Ludwig Irlbeck was convicted for aggravated assault, and he appeals.

Reversed and remanded.

See, also (Tex. Cr. App.) 26 S.W.(2d) 276.

Dennis Zimmermann, of Tulia, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

Offense, aggravated assault; punishment, a fine of $250 and thirty days in jail.

Mrs. C. H. Onthank, the person upon whom the assault was alleged to have been committed, testified substantially as follows: That she lived on a farm of 160 acres southwest of Happy, Tex., in Swisher county; that they had just finished milking two cows and one of the children said, "Yonder comes Mr. Irlbeck"; that she looked and saw the car coming in at the gate with Ludwig Irlbeck, John Irlbeck, and Gerhard Ackfeld in it; that the car was being driven by appellant; that she left the cow lot and went to where they had stopped the car; that as she approached them she said, "Good Morning, Mr. Irlbeck"; that he said "What kind of business is this, you running a man off the place with a rifle. Don't you know a rifle will kill a man?" She testified further that she told him it was not a rifle, but a shotgun, and that she would do the same to him if he did not get off of her place. She said she informed the appellant that she had a lease contract on the premises until the 15th day of September, 1929, and he said that didn't matter, that he had a lease contract for the next year, and he was going to farm that land; that she told him he could not get the land until the 15th day of September; that she told him this before he went into the field to plow the land, and he said he was going to go to plowing as he had a lease to, and that she told him that he couldn't do it, but he said he was going to do it anyway. She further testified that about that time Gerhard Ackfeld came up close to her with both fists doubled up and shaking them at her, and said, "We come for the rifle, we come for the rifle, we come for the rifle"; that all the time appellant kept getting closer to her; that she said, "You are not going to get my gun," and started to her car, where her gun was; that the appellant saw the gun in the car and started for the car also; that they reached the car about the same time and grabbed the gun about the same time; that appellant got hold of the gun by the barrel and she by the guard; that during the struggle that followed Gerhard Ackfeld got hold of her arm with one hand and grabbed her by the throat with the other and choked her and mashed her down on the ground and put his knee on her chest, while appellant held on to the gun; that with his knee on her chest and choking her, Ackfeld made her release the gun, and then they went to the car and got in it and left, taking the gun with them. She further testified that while the appellant held to the gun with one hand he hit her with the other, striking her shoulder and knocking her back about two feet; that her shoulder was bruised and had a blue place on it from said lick. She testified on cross-examination that she would have shot them with the gun if they did not leave her place.

She was corroborated by her son, Donald Onthank, a boy about ten years of age.

The state also proved by Dr. Webb that, about a week or ten days after the difficulty, Mrs. Onthank came to his office and complained about her side; that he examined her and found that her left side about her lower ribs had been bandaged by adhesive tape, and that the bandages had slipped out of place; that she had a sore place on her ribs and he could not tell whether it had been fractured or not; that he did not X-ray it; that in his opinion it could have been a green stick fracture and could have been caused by a man's knees. Dr. James W. Stevens testified for the state to substantially the same effect.

Dr. Crawford testified for the appellant that, about the 16th day of July, the sheriff brought Mrs. Onthank to his office, and that he found she had an injury on her lower ribs; that he measured it and it was seven inches long and not more than one inch wide at any place; that it was not black and blue; that it was more of a red welt across her body; that he did not X-ray it and could not tell whether or not it had or had not been fractured; that it did not look like a place that would be made by a man putting both his knees together there; that it could have been caused by the butt end of a shotgun by jerking it back against or skidding it across her ribs; that it looked to him like it was made by the barrel of a gun striking her; that it was possible that the marks on her body could have been caused by a man's knees on her body if the sharp part of the knee had skidded across the same.

The appellant testified substantially as follows: That, on the morning of the difficulty testified to by Mrs. Onthank, he went up to the house in his car, accompanied by his son, John Irlbeck, and Gerhard Ackfeld; that when they stopped the car and got out, Mrs. Onthank came to meet them and he asked her, "What kind of business is this, you running a man off a place he's got leased, with a rifle? Don't you know that a rifle will kill a man?" that she said it wasn't a rifle, but a shotgun; that about that time he looked around and saw the gun in her car, and that she made a start for the gun and he went for it too; that she got hold of it first by the butt or trigger end, and he caught it by the barrel with both hands; that, during the scuffle that ensued, he did not touch her in any way, but kept hold of the gun to keep it from shooting him. He testified that Ackfeld did not catch hold of her in any way except to catch hold of her arms to get her to turn loose of the gun; that they did not throw her down or knock her down, and he did not catch her by the throat or get on her with his knees; that as soon as she turned the gun loose they quit and brought the gun to town and turned it over to the sheriff.

He was corroborated in his testimony by the witness Gerhard Ackfeld and his son, John Irlbeck.

Appellant complains of the action of the court in...