Low v. State

• Decision Date: 22 October 1892
• Citation: 20 S.W. 366
• Parties: LOW v. STATE.
• Court: Texas Court of Criminal Appeals

Page 366

20 S.W. 366

LOW v. STATE.

Court of Criminal Appeals of Texas.

October 22, 1892.

Appeal from district court, Hill county; J. M. HALL, Judge.

Indictment of Bill Low for assault with intent to murder. From a judgment of conviction he appealed. Reversed.

Johnson & Winfrey and Smith & Wear, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of an assault with intent to murder, and sentenced to two years in the penitentiary, and appeals.

1. The appellant complains that the court erred in permitting McKinley, the assaulted party, and Benton to testify to a message or challenge sent by defendant to McKinley, desiring to meet him in a dark alley. We think this testimony would have been inadmissible as hearsay had not McKinley testified that when he, a few minutes afterwards, charged defendant with sending him the message, and asked him what he meant by it, defendant did not deny it, but apparently justified it by stating McKinley or some one else had sworn to a lie on him, and he always believed it was he, the said McKinley. Under this testimony the court did not err in admitting the message in evidence to the jury. Neither do we find any error in the charge of the court upon this message. It simply stated the law, and was in no sense a charge upon the weight of the evidence.

2. There is no force in the proposition that the charge of the court "on what the law would be if defendant brought on the difficulty" was not demanded by or called for by any evidence in the case. While it may be true that McKinley struck the first blow, yet the evidence and the theory of the state strongly presented the defendant in the light of an aggressor; of having prepared for and brought about the conflict. A taunting message or challenge is brought from defendant to McKinley while quietly sitting at supper in a restaurant, by a brother-in-law of defendant. There had been ill feeling between them. In a few moments, McKinley steps out of the eating stall into the room, and is there confronted by defendant armed with a deadly knife. He asks defendant the meaning of the message, and, being by him charged with having sworn a d___n lie, he strikes the defendant, and is dangerously stabbed several times, notwithstanding the efforts of bystanders. We think the charge was called for, and correctly given.

3. The only serious error we find in the record is that raised by the sixth assignment of error, to the effect that the...