Lee v. State

• Decision Date: 22 May 1912
• Citation: 148 S.W. 567
• Parties: LEE v. STATE.
• Court: Texas Court of Criminal Appeals

148 S.W. 567

LEE v. STATE.

Court of Criminal Appeals of Texas.

May 22, 1912.

Rehearing Denied June 28, 1912.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Major Lee was convicted of crime, and he appeals. Affirmed.

Burnett & Storms, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment contains two counts. Appellant was convicted under the second count, which charged him with unlawfully making an assault upon Stella Lee for the purpose of disfiguring her, and that he did willfully and maliciously attempt to disfigure the said Stella Lee, and did willfully and maliciously attempt to place a mark upon the face of the said Stella Lee by means of carbolic acid by then and there willfully and maliciously casting and throwing carbolic acid into and upon the face of the said Stella Lee, with the intent then and there on the part of the said Major Lee to willfully and maliciously disfigure the said Stella Lee as aforesaid, against the peace and dignity of the state.

1. Appellant moved to quash the indictment for several reasons. Putting this proposition of appellant in its essence, the contention is that, inasmuch as the statute uses the words "by means of a knife or other instrument upon the face or other part of the person" in the definition of disfiguring, carbolic acid is not such an instrument as is meant by the statute. His contention is that by applying the rule of ejusdem generis that the expression "or other instrument" carries with it the idea that it is such other instrument, and that such other instrument must be of the same character or kind as the knife. We cannot agree with counsel. In looking at this statute we must take the legislative intent in enacting it. The purpose of this statute was to prevent the person assaulted from being disfigured, and did not confine the manner or means of disfiguring simply to a knife or means of that peculiar class or kind. The word "instrument" there, under the legislative intent, has a broader significance and a wider meaning, and evidently means and was intended to mean any means by which the face or other part of the person should be disfigured. The general definition of an instrument is "one who or that which is made a means or cause to serve a purpose." We understand this is the meaning to be given the word "instrument" in this statute. This definition has been upheld in various authorities, and we cite Magnon v. United States (C. C.) 66 Fed. 151, and United States v. Magnon, 71 Fed. 293, 18 C. C. A. 43. The case of Ex parte Muckenfuss, 52 Tex. Cr. R. 467, 107 S. W. 1131, recognizes very fully the doctrine here announced, and a careful review of that case and the cited authorities in our judgment justifies the conclusion that we reach in regard to the statute under which this indictment was framed. For authorities generally see 36 Cyc.

2. Appellant contends that the indictment should have been quashed because it was found by the grand jury without witnesses or testimony before them upon which to predicate such finding. This question has been settled adversely to appellant in quite a number of cases in Texas. Kingsbury v. State, 37 Tex. Cr. R. 259, 39 S. W. 365; Terry v. State, 15 Tex. App. 66; Dockery v. State, 35 Tex. Cr. R. 487, 34 S. W. 281. There are quite a number of other cases laying down the same doctrine.

3. Appellant contends that the judgment should have been set aside and appellant permitted to file a plea of former conviction. This comes too late after the trial had been had. If, as a matter of fact, appellant had been convicted previously for throwing the carbolic acid upon two other women who were with his wife at the time he threw it into her face, those facts were known to him. It would hardly be presumed that he could have been punished by incarceration in jail, or in any other manner punished by the jury, without his knowing that fact. A plea of jeopardy must be made before the trial of the case on its merit. It goes to the jury along with the other matters to be...