Ivory v. State
| Citation | 87 S.W. 699 |
| Parties | IVORY v. STATE. |
| Decision Date | 17 May 1905 |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from District Court, Harris County; J. K. P. Gillaspie, Judge.
Jesse Ivory was convicted of assault with intent to murder, and appeals. Reversed.
E. T. Branch, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
Appellant was convicted of assault with intent to commit murder, and his punishment fixed at confinement in the penitentiary for a term of two years; hence this appeal.
In the motion for new trial a number of exceptions were taken to the charge of the court and the failure of the court to give instructions upon certain phases of the case. Appellant insists that the court should have charged on cooling time, but it occurs to us from the evidence that this was a continuous transaction, and there was no occasion for the court to give an instruction as suggested. If, on another trial, it should appear there was an interregnum in the difficulty between the alleged blow with the glass tumbler by prosecutor inflicting pain or bloodshed on appellant and the final act of shooting, the court might be required to give the charge on cooling time. In charging on provocation, to wit, a blow causing pain or bloodshed, the court should also on another trial instruct the jury that they were authorized to look to all the antecedent facts and circumstances, if any, between the parties, tending to illustrate or intensify the provocation.
Appellant complains that the court failed to instruct the jury on that phase of the case arising from a portion of appellant's testimony to the effect that he shot to scare the prosecutor. The language of appellant in his original examination was that "he shot at prosecutor," but on cross-examination he stated: Appellant contends that the court should have charged on simple assault on this phase of the case, and cites Catling v. State, 72 S. W. 853, 7 Tex. Ct. Rep. 16, and Pastrana v. State (decided May 10, 1905) 87 S. W. 347. Both of these authorities support appellant's contention; that is, that the court should have charged simple assault on this phase of the case. It may be that the trial judge considered the testimony on this point weak, but, in our opinion, it was sufficient to have required the charge.
Appellant also insists that the case should be reversed on account of the failure of the court to instruct the jury that if, at the time appella...
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Short v. State
...constitute but a simple assault. Cases so holding are collated by Mr. Branch in section 1537 of his Annotated P. C. See Ivory v. State, 48 Tex. Cr. R. 279, 87 S. W. 699; Haygood v. State, 51 Tex. Cr. R. 618, 103 S. W. 890. But we must not lose sight of the fact that article 1147. P. C. prov......
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Smith v. State
...App.) 72 S. W. 853; Wright v. State (Tex. Cr. App.) 77 S. W. 809; Pastrana v. State, 48 Tex. Cr. R. 224, 87 S. W. 347; Ivory v. State, 48 Tex. Cr. R. 279, 87 S. W. 699; Barnett v. State (Tex. Cr. App.) 93 S. W. 722; Haygood v. State, 51 Tex. Cr. R. 618, 103 S. W. 890; Hall v. State (Tex. Cr......
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Deneaner v. State
...R. 36, 85 S. W. 1059; Cochran v. State, 28 Tex. App. 422, 13 S. W. 651; Ward v. State, 30 Tex. App. 687, 18 S. W. 793; Ivory v. State, 48 Tex. Cr. R. 279, 87 S. W. 699; Paderes v. State, 45 S. W. 2. An important question is raised in respect to the refusal of the court to permit appellant t......
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Martin v. State
...of cooling time. Armstrong v. State, 50 Tex. Cr. R. 27, 96 S. W. 15; Hancock v. State, 47 Tex. Cr. R. 7, 83 S. W. 696; Ivory v. State, 48 Tex. Cr. R. 281, 87 S. W. 699. In Anderson's Case, 87 Tex. Cr. R. 242, 221 S. W. 285, according to the state's testimony, the parties were about fifty fe......