Lacoume v. State

• Decision Date: 31 January 1912
• Citation: 143 S.W. 626
• Parties: LACOUME v. STATE.
• Court: Texas Court of Criminal Appeals

143 S.W. 626

LACOUME v. STATE.

Court of Criminal Appeals of Texas.

January 31, 1912.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Roy Lacoume was convicted of aggravated assault, and he appeals. Reversed and remanded.

Clough & Fuller, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The appellant in this case was charged by indictment, that "with force and arms, and with malice aforethought, did unlawfully make an assault upon Tom Moore with the intent then and there to murder the said Moore." The jury found appellant guilty of an aggravated assault, and assessed his punishment at one year's confinement in the county jail.

All errors complained of in that part of the charge relating to assault to murder cannot be considered by us; he having been acquitted of that offense, and found guilty of aggravated assault only.

Appellant complains that the court charged the jury that "an assault becomes aggravated when committed upon an officer in the lawful discharge of the duties of his office," alleging that this was not within the offense as alleged in the indictment in this case, the indictment having alleged an assault to murder with malice aforethought; the indictment thus alleging that the offense was committed with malice, either express or implied. This question has been before this court in a number of instances, and it has always been held that, when a person is charged with an aggravated assault by indictment or information, the means of aggravation must be specifically alleged; but when the indictment charges an assault to murder this embraces aggravated assault in all its various phases. That it is not necessary that the mode and manner of the commission of the offense be alleged, nor the grounds of aggravation. This question is fully and ably discussed by Judge Willson in the case of Davis v. State, 20 Tex. App. 302, and by Judge Gray in the case of Bittick v. State, 40 Tex. 119. See, also, Jones v. State, 21 Tex. App. 351, 17 S. W. 424, Givens v. State, 6 Tex. 344, and articles 751 and 752, Code of Criminal Procedure. Such being the law under our decisions, the evidence in this case did not call for a charge on simple assault.

Appellant complains that the court erred in not permitting him to prove that Policeman Moore had assaulted other parties at various times, and had killed one man within the past five years, for which he was never indicted. Appellant could have proven the prosecuting witness' general reputation as being a violent and dangerous one; but this he did not offer to do. He could not show isolated transactions; for this would have rendered admissible whether or not the witness was justifiable in such acts, and these cases were not on trial. The state did not offer to prove the witness' good reputation. Kemper v. State, 138 S. W. 1025.

Appellant complains that the court erred in permitting the state to exhibit to the jury the pistol which he testified he had been hit with by Dennis Crowley. The evidence by the prosecuting witness shows: "I was coming up on the same side of the street, and I passed them [defendant, Crowley, and Watts]. One of them said, `Howdy do, Mr. Moore?' I crossed the street to the other side. I went to the southeast corner and sat down on a chair, and put my feet up against the electric light post that stands on the sidewalk, and as soon as I did Lacoume, Crowley, and Watts all come up behind my back, and Lacoume and Watts they passed by, and got probably about six feet and stopped. Crowley got behind me, and I felt a pull at my pistol holster, and they already had it out and swung on me and put me in the gutter, and Denny said, `Now you got him, kill the son of a bitch,' and the other fellow was watching, and this man hit me with the gun. I never did get off my hands and knees. As fast as I would get up, they would knock me down. Lacoume pulled the club from me, and struck me on the head and in the...