Luttrell v. State

• Decision Date: 31 January 1912
• Citation: 143 S.W. 628
• Parties: LUTTRELL v. STATE.
• Court: Texas Court of Criminal Appeals

143 S.W. 628

LUTTRELL v. STATE.

Court of Criminal Appeals of Texas.

January 31, 1912.

Appeal from District Court, Jack County; J. W. Patterson, Judge.

J. P. Luttrell was convicted of assault to murder, and he appeals. Reversed and remanded.

E. W. Nicholson and W. E. Fitzgerald, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of assault to murder; his punishment being assessed at four years confinement in the penitentiary.

1. There are several bills of exception that are too indefinite to be considered under our authorities. Appellant offered evidence which was rejected by the court. The object and purpose of the introduction of this evidence is not stated or shown by the bills. Some of the offered testimony, viewed in the light of the facts, if we could go to the evidence to consider it, ought to have been admitted on the theory of impeachment. We mention this, so that if the matters occur upon another trial, as they did upon the one which resulted in appellant's conviction, the testimony should go to the jury.

2. The indictment charges assault to murder upon Edward Oscar Williams. The evidence shows the trouble occurred between appellant and Oscar Williams. There is nothing in the record to show that they are the same parties, or that if they are the same parties that he was commonly called Oscar Williams. As the matter is presented, this will constitute a variance. See Branch's Criminal Law, § 621. The evidence is insufficient if the name of the injured party is not proved as charged in the indictment, either by evidence that he was known or called by that name, or that was in fact his name. Humbard v. State, 21 Tex. App. 208, 17 S. W. 126; Brown v. State, 53 Tex. Cr. R. 303, 109 S. W. 188; Tracy v. State, 48 Tex. Cr. R. 50, 85 S. W. 1056; Mayes v. State, 33 Tex. Cr. R. 33, 24 S. W. 421; Wolf v. State, 85 S. W. 8; Hankins v. State, 57 Tex. Cr. R. 152, 122 S. W. 21. This matter should not have been left in this condition. If it was a fact that Edward Oscar Williams was the name of the assaulted party, and he was commonly called Oscar Williams, this could have been shown; or, if his name was in fact as alleged in the indictment, this ought to have been shown. There are a great number of cases cited by Mr. Branch in his work on Criminal Law, in section 621, above cited.

3. Exception is reserved to the charge defining manslaughter and adequate cause as a basis for the charge upon aggravated assault. The court charged the jury in this connection: "You are instructed that any condition or circumstance capable of creating, and which does create, sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind for the time incapable of cool reflection, whether accompanied by bodily pain or not, may be adequate cause; and whether such adequate cause existed for such sudden passion, if any there was, it is for you to determine; and in determining this question, as well as all other matters before you, you will consider all the facts and circumstances in evidence in this case." The evidence in the case shows that the parties had been friends, and had a sudden falling out over a settlement, and this led to a personal difficulty. Williams, the assaulted party, knocked appellant down, and was beating him when pulled off by bystanders. The trouble was renewed, and he again knocked appellant down and beat him about the face and head, which produced pain and bloodshed, and also undertook to gouge or scratch his eyes. They were again separated, and Williams, in company with Mr. Clay, started off. He went a short distance, and appellant followed along behind and overtook them. The trouble was renewed, and in that difficulty appellant used a knife, making a right serious wound. There were two versions of this difficulty. The state's theory was that appellant followed Williams for the purpose of doing what he did, and, perhaps, to kill him. Appellant's contention, supported by his testimony, was that he and Williams had come to town together in a wagon, and he thought Williams was going to hitch up the team and go away and leave him, and he was following along behind in order not to be left, and when he overtook the parties Williams made the third assault upon him, and he then used his knife. The knife is not what would be usually termed a deadly weapon; the blade being about 2 or 2½ inches in length. It could be...