Jones v. State
| Decision Date | 27 April 1921 |
| Docket Number | (No. 6221.) |
| Citation | 231 S.W. 122 |
| Parties | JONES v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Marion County; J. A. Ward, Judge.
Mike Jones was convicted of assault with intent to murder, and he appeals. Affirmed.
T. D. Rowell, of Jefferson, for appellant.
R. H. Hamilton, Asst. Atty. Gen., for the State.
The conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of 10 years.
We find it necessary to sustain the motion made by the state to dismiss the appeal because of the absence of any notice of appeal. Without notice of appeal, this court has no jurisdiction. Article 915, Vernon's Texas Criminal Statutes, vol. 2, p. 877, and cases there listed.
On Motion for Rehearing.
Appellant is convicted for assault with intent to murder; punishment fixed at confinement in the penitentiary for 10 years. The omissions in the record having been supplied, the motion for rehearing is granted, and the dismissal set aside.
The indictment charges that the appellant did "make an assault in and upon Jud Mathis, with the intent then and there to murder the said Jud Mathis." Upon the facts, the theory was presented that the shot fired by the appellant, which injured Mathis, was not fired at him, but was fired at Marion Elliott. The court instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that the appellant, with malice aforethought, fired the shot that injured Mathis with the specific intent to kill Elliott, he would be guilty of an assault with intent to murder Mathis. The correctness of the treatment of the matter is challenged upon the ground that, the indictment having charged an assault upon Mathis, under this pleading there could be no conviction upon proof showing that the shot was fired at Elliott, against whom there was malice, and by accident striking Mathis, against whom no ill will was entertained. Apparently the law upon the subject is stated in the opinion of the court in Mathis v. State, 39 Tex. Cr. R. 552, 47 S. W. 464, thus:
The legal proposition thus stated finds support in several cases, among them being Richards v. State, 35 Tex. Cr. R. 43, 30 S. W. 805; Smith v. State, 95 S. W. 1058. See, also, State v. Thomas, 127 La. 576, 53 South. 868, 37 L. R. A. (N. S.) 172, Ann. Cas. 1912A, 1059; Spannell v. State, 83 Tex. Cr. R. 418, 203 S. W. 357, 2 A. L. R. 593.
The evidence goes to show that while Mathis and Elliott were walking together in the nighttime a shot was fired, taking effect upon Mathis; that Elliott fled, and two other shots were fired. Other evidence connects the appellant with the assault. The state proved his admission that he fired the shot, and by the same witness, on cross-examination, it was shown that at the same time he said that the shot was fired at Elliott, and not at Mathis. Both Elliott and Mathis testified that they had had no difficulty with the appellant. Shortly before the shooting, all the parties were at the home of a negro woman of unchaste character. Appellant and a companion left first, and the shooting occurred soon after Mathis and Elliott took their departure.
The theory of an accidental shooting of Mathis was developed by the appellant. Assuming that the appellant fired at Elliott and wounded Mathis, it was within the discretion of the state to charge an assault upon both Elliott and Mathis, or upon either of them; but the conviction or acquittal in one case would bar the prosecution in the other. Spannell v. State, 83 Tex. Cr. R. 423, 203 S. W. 357, 2 A. L. R. 593. If the appellant fired the shot at Elliott with malice, intending to kill him, the fact that it wounded Mathis, whom he did not intend to kill, would not excuse him.
Appellant does not controvert the proposition last stated, but insists that, in writing the indictment, it is essential that it should contain averments setting out all facts which it is necessary that the state prove in order to sustain a conviction, referring to 22 Cyc. pp. 285-295, Hewitt v. State, 25 Tex. 722, Williams v. State, 12 Tex. App. 395, and other cases. There is a distinction between the facts that must be proved and those that may be proved under an...
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...At the time of the interview with the District Attorney appellant lied about changing his trousers at any time the previous day. In Jones v. State, supra, this court 'It is not necessary that every fact point independently and directly to the guilt of a defendant. It is enough if the conclu......
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