Johnson v. State, 22190.

• Decision Date: 17 June 1942
• Docket Number: No. 22190.,22190.
• Citation: 164 S.W.2d 675
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 675

164 S.W.2d 675

JOHNSON v. STATE.

No. 22190.

Court of Criminal Appeals of Texas.

June 17, 1942.

Rehearing Denied October 14, 1942.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Bill Johnson was convicted of assault to murder, and he appeals.

Judgment reversed and cause remanded.

Dabney & Dabney, of Eastland, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Appellant was convicted on a charge of assault to murder and given one year in the penitentiary.

The prosecuting witness in this case, together with two other boys, went to the home of appellant at about dusk and, according to their story, had in mind the purchase of some whiskey. The evidence of the things that followed from the standpoint of the State is quite in conflict with that given by appellant. In fact, their stories are so different that it would be difficult to recognize them as being the same affair, save and except for the time and place. It is sufficient to say that the evidence from the standpoint of the State amply justified the jury's verdict.

The record is before us without bills of exception. Numerous requested special charges were presented which cannot be considered because the exception to the failure to give neither is certified by the trial court. However, extensive objections were filed to the court's charge and one of these, which is denominated as exception to section twenty of the court's charge, has impressed us as demanding consideration. In doing so it will be necessary to recite only that evidence by appellant to which it relates.

It is claimed by the appellant himself, his wife and his son, that when the parties approached the house they immediately engaged appellant in a struggle which lasted several minutes; that they had a shotgun, while appellant had nothing; that this gun was discharged in the struggle and that they heard one party tell another, "get that money". It was testified also that these parties had been present late in the afternoon and saw appellant sell some cattle and hogs and receive $174 in money; that when the foregoing statement was made concerning the money appellant threw his purse at a well. Later that night a search was made and the purse with its contents was found in a hole by the side of a well. This evidence raised the issue of robbery as a defense. Appellant denied that he ever at any time fired his gun, though he secured it later and after the two boys who were not wounded fled from the scene. The unusual character of this testimony as related to the physical facts...