Meredith v. State

• Decision Date: 01 January 1874
• Citation: Meredith v. State, 40 Tex. 480 (Tex. 1874)
• Parties: V. T. MEREDITH v. THE STATE.
• Court: Texas Supreme Court

40 Tex. 480

V. T. MEREDITH

v.THE STATE.

Supreme Court of Texas.

1874.

1. An indictment for an assault “with intent to kill and murder,” and otherwise in the usual form, is sufficient as charging an assault with intent to murder--rejecting as surplusage the allegation of intent to kill.

2. The presumption is in favor of the correctness of the ruling of the court in overruling a motion for continuance, unless the error is manifest by a bill of exceptions.

3. The declarations of the person upon whom an assault was made, made after the difficulty, are irrelevant upon the trial.

4. Statements of defendant, made at the time of the difficulty, as to the reason why he had held the pistol so long on the assaulting party without shooting, held insufficient to require a new trial.

5. See facts held sufficient to sustain a verdict of guilty of an assault with intent to murder.

APPEAL from Johnson. Tried below before the Hon. Charles Soward.

Amzi Bradshaw, for appellant, insisted that the indictment is insufficient to sustain a verdict for an assault with intent to murder, citing The State v. Archer, 34 Tex. 636; Moore v. The State, 34 Tex. 128; Wilson v. The State, 25 Tex. 169; The State v. Hotchkiss, 30 Tex. 163;Hodges v. The State, 20 Tex. 493; Robinson v. The State, 31 Tex. 175; The State v. Dorsett, 21 Tex. 656.

Following was an elaborate discussion of the facts.

Geo. Clark, Attorney General, for the state, cited Pas. Dig. art. 2987; Cooper v. The State, 19 Tex. 449;Brown v. The State, 23 Tex. 199;Wall v. The State, 18 Tex. 682;Bruton v. The State, 21 Tex. 337.

REEVES, ASSOCIATE JUSTICE.

The indictment in this case charges the defendant with making an assault with intent “to kill and murder” one J. J. Harrell.

The appellant was tried and convicted and his punishment assessed by the jury at two years' confinement in the penitentiary.

His motion for a new trial and motion to arrest the judgment being overruled, he appeals.

The grounds relied upon for reversing the judgment will be examined in the order appellant's counsel has presented them in his brief.

The first ground is, that it does not appear from the indictment that any offense had been committed against the laws of the state.

In support of this ground we are referred to the case of Moore v. The State, 34 Tex. 138.

The facts of the case are not fully stated. It appears that the parties were required by their bail bond to appear and answer the charge of “shooting with intent to kill and murder,” and it was held that the bond should have been quashed.

In the case of The State v. Archer, 34 Tex. 646, where the defendant was charged with an assault to kill and murder, the court said: “The indictment is insufficient to sustain a conviction for an assault with intent to murder, but is sufficient to support a conviction for a simple assault.”

The case of The State v. Robinson, 31 Tex. 170, does not bear on this question, and was decided on a different ground.

The State v. Hotchkiss, 30 Tex. 162, was an indictment charging the defendant with “an assault with intent to kill and murder,” and the offense was recited in the bail bond as “an assault with intent to kill.” This case refers to Hodges v. The State, 20 Tex. 493, in which it was held that “an assault with intent to kill is an offense for which the accused might be convicted of the assault, if not also of the intent to murder;” and referring also to Wilson v. The State, 25 Tex. 169.

In this last case, Wilson was indicted for an assault with intent to kill and murder. The recognizance described the offense as an assault with intent to kill. The court said: “There is no offense known by the name of an assault with intent to kill, yet such a description includes the offense of an assault, and the intent to kill may be rejected as surplusage.”

Our opinion is, that the indictment in the case before us is sufficient as charging an assault with intent to murder, rejecting as surplusage the allegation of the intent to kill. The indictment is not obnoxious to the charge of duplicity, as it was held to be in the case of The State v. Dorsett, 21 Tex. 656. The indictment was for a willful and negligent escape, containing a description of two distinct offenses, and the jury could not have found the one or the other grade of offense, as they may do on indictment for assault with intent to murder. In the former the statute did not warrant such a finding; in the latter provision is made for it. “The jury, in every case arising under this chapter, may acquit the defendant of the offense charged in the indictment, and may, according to the facts of the case, find the defendant guilty of an aggravated assault, or of assault and battery, or of a simple assault, and affix the proper penalty to which such offense is liable by law.” Pas. Dig. art. 2160.

It is not made to appear that the court erred in overruling the motion for a continuance. It is not shown when the witnesses were subpœnaed. It is stated in the application for the continuance that the subpœnas were exhibited to the court, but the record does not show the date, and this court has no means of ascertaining the grounds upon which the district court acted in overruling the motion. It may have been refused for that or some other reason not apparent to this court. There is no bill of exception to the ruling of the court, and nothing seems to have been done at the time showing an intention to rely upon the refusal to grant the continuance in this court for reversing the judgment. And for want of it, the ruling of the court will not be revised. The reason of the rule is, that the judge may explain the grounds of his action in refusing the application, and the rule is the same in criminal and civil cases.

The presumption is in favor of the correctness of the ruling of the court, unless the contrary is shown by bill of exception. Baker v Kellogg, 16 Tex. 118;Hyde v. The State, 16 Tex. 453;Fowler v. Buckner, 23 Tex. 86;Harrison v. Cotton, 25 Tex. 53; Johnson v. Brown, 25 Tex. S. 126.

Proof of what Harrell, the person assaulted, may have said after the difficulty, whatever may have been implied, was not a matter that could have influenced the conduct of Meredith as affording any justification or excuse for his acts...