Mitchell v. State
| Decision Date | 20 March 1963 |
| Docket Number | No. 35510,35510 |
| Citation | 365 S.W.2d 804 |
| Parties | James MITCHELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Buck C. Miller, Houston, for appellant.
Frank Briscoe, Dist. Atty., Gus J. Zgourides and Gene D. Miles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for aggravated assault; the punishment sixty days in jail.
The complaint and information charged appellant with having committed an aggravated assault upon one William R. Gray, with a pistol, the ground of aggravation being that the assault was made with premeditated design and by the use of means calculated to inflict great bodily injury.
Gray, the injured party, testified that he was co-manager with his wife of the North Line Terrace Apartments in the city of Houston. Appellant lived in one of the apartments with his wife and small child. Gray testified that on the night in question, while he was making his usual 'rounds' about midnight, he met appellant with his wife and daughter in front of their apartment. Appellant inquired what he was doing there and he answered that he was making his 'rounds' and asked appellant why he inquired. Appellant replied that he would show him why, then went inside the apartment, put a package on the table, came outside and 'kind of danced along the side of the apartment.' Gray stated that appellant then 'whipped' out a pistol which looked like a .45 calibre, six inches long, and struck him across the face with it. He further testified that he was 'staggered' and 'dazed' from the blow and bleeding profusely and that he went to the Doctors Hospital for emergency first aid treatment. He further stated that he had 'a brand new bite now' and that part of his face was paralyzed.
Deputy Sheriff Snow testified that in his opinion a pistol which appeared to be a .45 with a six-inch barrel, when swung and struck against a person's head, would be calculated as a means to inflict great bodily injury.
Appellant did not testify but called as a witness in his behalf his wife, Mrs. Kathryn Mitchell, who gave her version of the difficulty.
Mrs. Mitchell testified that when she and appellant returned from a grocery store to their apartment on the night in question, Gray, the injured party, was at the front 'pounding profusely' on the door. She asked: "What is the matter with you?" and Gray, who had been drinking, replied: "I want to see your husband," stating that he was there to 'straighten out' her husband. Appellant then came around the corner to where they were standing and asked Gray what was the matter. Gray replied: "I want to see you," and used abusive language. Appellant then went inside the apartment and Mrs. Mitchell blocked the doorway, saying to Gray: "You are not coming in here an causing any trouble." While Gray was at the doorway and she was blocking his entrance, a struggle ensued between them as he started into the apartment. While they were struggling in the doorway, appellant pushed his wife aside and struck Gray with his fist.
Appellant also called two of the owners of the apartments, who testified that it was Gray's wife--and not Gray--who was hired as manager of the projects.
Testimony was also adduced to the effect that the apartment had been rented to appellant by one of the owners, over Gray's protest, and that on the day appellant moved into the apartment he had some difficulty with Gray's wife over some keys and cursed her.
In submitting the issue of appellant's guilt to the jury the court fully instructed the jury on the right of appellant to prevent an intrusion upon the lawful possession of his property and to act in defense of his wife against an unlawful attack being made or about to be made upon her by the injured party.
The jury resolved the disputed issues against appellant, and we find the evidence sufficient to sustain their verdict.
Appellant predicates his appeal upon certain claimed errors in the court's charge.
No objections were made to the charge but appellant presented certain requested charges to the court which were refused.
Appellant's first complaint is to the court's failure to define the term 'premeditated design' in the charge. A requested instruction...
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Battie v. State, 53166
...Tex.Cr.App., 496 S.W.2d 594; "reasonable doubt," Whitson v. State, Tex.Cr.App., 495 S.W.2d 944; "pre-meditated design," Mitchell v. State, Tex.Cr.App., 365 S.W.2d 804. In addition, King noted that in Powell v. State, Tex.Cr.App., 538 S.W.2d 617, it was stated that the meaning of the term "a......
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