McFarlane v. State, 26715

• Decision Date: 20 January 1954
• Docket Number: No. 26715,26715
• Citation: 266 S.W.2d 133,159 Tex.Crim. 658
• Parties: McFARLANE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 133

266 S.W.2d 133

159 Tex.Crim. 658

McFARLANE v. STATE.

No. 26715.

Court of Criminal Appeals of Texas.

Jan. 20, 1954.

Rehearing Denied March 10, 1954.

C. C. McDonald, Wichita Falls, for appellant.

Wesley Dice, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is aggravated assault; the punishment, one month in jail and a fine of $1,000. The grounds of aggravation alleged were that the appellant was an adult male and the injured party was a female. The former appeal of this case will be found in 254 S.W.2d 136.

Prior to the night in question ill will had existed between the participants, whose places of business were next to each other. Dorris Bryan testified that appellant assaulted her while she was on her property, drug or carried her over to his office, and there administered a severe beating.

Appellant and his witnesses testified that the injured party came into his place of business of her own volition in a bellicose mood and that he hit her three times in an effort to ward off the blows of her fists and her kicking.

The jury resolved the issue of self-defense against the appellant, and we find the evidence sufficient to support the conviction.

We shall now discuss the contentions raised by appellant's eminent attorney in his brief.

A picture of the prosecutrix made on the day following the altercation was introduced in evidence. Appellant contends the picture is inflammatory. We agree that the picture graphically shows the extent of her injuries, but that does not render it inadmissible. In Cantrell v. State, Tex.Cr.App., 242 S.W.2d 387, we said, 'If photographs serve to illustrate a disputed issue, it is immaterial that they are also inflammatory.' While it is true that the charge in this case was drawn under Section 5 [now § 9] of Article 1147, P.C., still in such a case the jury is entitled to know the extent of the injuries inflicted in order to properly assess the punishment, and the extent of the injuries becomes an issue in the case. It could not with reason be said that because this prosecution was brought under Section 5 the witnesses would not be permitted to testify as to the nature of the injuries inflicted. The picture, if accurate, would give this evidence more vividly than the description of the witnesses. The jury in this case, by their verdict, rejected the appellant's plea of self-defense and were entitled to receive all legitimate evidence as to the nature of the injuries he had inflicted upon her.

Appellant relies, among other cases, upon Avirett v. State, 128 Tex.Cr.R. 647, 84 S.W.2d 482, and Heath v. State, 151 Tex.Cr.R. 609, 210 S.W.2d 586, where this Court condemned the introduction into evidence of pictures of the body of the deceased. A distinction is apparent. There are no degrees of death, and therefore, the pictures would not be helpful to the jury in properly assessing the punishment. Quite the contrary is true in assault cases.

Appellant contends the picture was not admissible because the proper predicate for its admission had not been laid in that the photographer who took the picture did not testify.

We quote from the learned treatise, 'The Presentation of Scientific Evidence,' by the Honorable Jack Pope, 31 Texas Law Review, page 794, as follows:

'* * * Perhaps the simplest predicate is that required for photographs.

"Is this photograph a fair and accurate representation of (the subject of the inquiry) as it existed on the day in question?'

'That simple question is the modest predicate necessary in most jurisdictions for an ordinary photograph of a still object. The question presupposes, however, that the witness is familiar with the scene. Generally speaking, the photographer need not be produced, and any person familiar with the scene will suffice.'

The injured party testified:

'Q. * * * Does that picture truly and correctly represent you as you appeared and as you looked on that morning? A. Yes, sir, except for the coloring and the bruises.

'Q. Well in a black and white picture it truly and correctly represents you does it not? A. Yes, sir.'

Surely no one else was more familiar with the scene than she.

Appellant objected to the court's charge because it failed to give the appellant the right of self-defense against the appearance of danger from a lesser attack.

In Boykin v. State, 148 Tex.Cr.R. 13, 184 S.W.2d 289, 290, we said:

'It will be noted that Article 1224, P.C., has reference to 'UNLAWFUL AND VIOLENT ATTACK.' THE RIGHT OF self-defense conferred by this article is statutory and, to arise, must come...