Kelly v. State

• Decision Date: 01 May 1901
• Citation: 62 S.W. 915
• Parties: KELLY v. STATE.
• Court: Texas Court of Criminal Appeals

62 S.W. 915

KELLY v. STATE.

Court of Criminal Appeals of Texas.

May 1, 1901.

Appeal from district court, Falls county; Sam R. Scott, Judge.

J. P. Kelly was convicted of assault, and he appeals. Reversed.

Rice & Bartlett and Z. I. Harlan, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was indicted for an assault with intent to murder, and upon trial was convicted of an aggravated assault, and his punishment assessed at a fine of $250.

We will make a brief statement of the facts: Defendant had been accused by Boise De Walt and his brother, H. N. De Walt, of writing a scurrilous valentine, addressed to Lias Smith, which, among other things, stated Smith's association with the De Walt girls, in an offensive manner, etc. The evidence is conflicting on the proposition as to whether or not appellant wrote this valentine. At any rate, the De Walts stopped defendant in his field (the defendant and the De Walt boys working adjoining farms), and asked defendant about the valentine. When defendant was first accosted by the De Walts, Boise said to defendant that he was sorry defendant wrote the valentine, if he did write it. Defendant asked him if he thought that he did. Boise stated that everything went to prove defendant had written it. Thereupon defendant drew his pistol and commenced shooting, without any further warning. The De Walts each had a cotton planter, and were returning home with it at the time of the shooting. Defendant was just across the wire fence, about 15 feet away, plowing, at the time. Defendant testified to the effect that when he met the De Walts he spoke, "Good morning," to Boise; and Boise said, "Hold on; I want to see you." Defendant made no halt, but his horse stopped when Boise spoke. Defendant jerked the horse, and Boise again said, "Hold on; I want to see you." After defendant said, "Good morning," he asked the De Walts if they were done plowing corn, and Boise then said, "I want to know what in the hell you wrote that valentine, and signed my sister's name to it, for." Defendant replied, "What valentine?" De Walt said, "By God! you need not deny it. I know you did it." Defendant told him he was mistaken. Boise said, "I have gotten it straight, and you won't do it any more." He had on his gloves, and threw his lines off his hands, and dropped them on the planter handles, and started towards the fence. By that time H. N. De Walt had thrown his lines on his planter handles, got off his gloves, and gotten to the head of his mule, between the mule and the fence, close to the fence. Then he said, "Yes, God damn you! I'll just blow your head off." Boise by that time had got to the fence. He grabbed the wire, pressed it down, and started to put his foot over the fence, and ran his hand in his jumper. Defendant grabbed his pistol, and fired twice just as rapidly as he could. H. N. De Walt was about a foot from Boise, and they both fell. When H. N. De Walt said he was going to blow defendant's head off, he was pulling something out of his clothes. One of the shots killed H. N. De Walt, and the other seriously injured Boise. Appellant was tried for the murder of H. N. De Walt, and acquitted. Upon the trial of this case he filed the plea of former jeopardy, averring that he had been formerly acquitted of this offense, in that the jury had found him not guilty of killing H. N. De Walt, which killing occurred at one and the same time with the assault on the prosecuting witness, Boise. Upon written motion of the state, this plea was stricken out by the court. Showing, as we take it, upon its face, that the plea was not sufficient, we do not think the court erred in sustaining the motion.

Upon the trial the court charged the jury as follows: "You are further charged that the valentine introduced before you, about which the controversy arose, cannot be considered by you against defendant, unless you find, beyond a reasonable doubt, that defendant was connected with the production of said valentine." Appellant objected to said charge because it was upon the weight of the evidence, and because it authorized the jury to take said valentine as a criminative fact against defendant, and consider it as such, in the event they found defendant was connected with its production, and because said charge gave undue prominence to this issue. We think the charge of the court is subject to the criticism urged by appellant, and is upon the weight of evidence. There being evidence pro and con as to whether the valentine was written by appellant, it would have been proper to have given a charge limiting its consideration by the jury to the purpose for which it was admissible; but to tell the jury that it cannot be considered against defendant unless they find defendant was connected with the production of said valentine was tantamount to saying that, if the jury thought defendant was the author of the valentine, then they could consider it against him. It is never permissible for the court to single out any part of the testimony, and instruct the jury that it can be considered against defendant. As indicated by the brief statement of the...