Mixon v. State, 31047

• Decision Date: 25 November 1959
• Docket Number: No. 31047,31047
• Parties: Alvin MIXON, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 438

330 S.W.2d 438

168 Tex.Crim. 613

Alvin MIXON, Appellant, v. STATE of Texas, Appellee.

No. 31047.

Court of Criminal Appeals of Texas.

Nov. 25, 1959.

[168 TEXCRIM 613]

Billy Hall, Littlefield, for appellant.

Bill Sheehan, Dist. Atty., Friona, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, two years.

Appellant and the assaulted party were farmers who resided near Amherst in Lamb County. Appellant's son, Jack was 24 years of age, and the son of Arlis Humphrey (the assaulted party) was 18. Some time before the day in question Arlis' son had borrowed a pair of water skis and some bridle bits, belonging to appellant and his son Jack, without having gotten their consent. When these articles were missed, appellant secured the services of a constable in effecting their return. Arlis took umbrage over the appellant's having 'gone to the law' and on the day prior to the assault in question, Arlis encountered appellant at a filling station and, in the presence of those assembled including Arlis' brother, gave the appellant a sound cursing and invited him out to fight. This invitation the appellant declined because of some temporary physical injuries, and the gathering dispersed after the parties had agreed to meet again [168 TEXCRIM 614] the next day when Jack would be present so that certain misunderstandings concerning what Jack had said could be ironed out. On the following morning appellant and Jack went to Amherst, made inquiry as to Arlis' whereabouts and proceeded to the cafe where they learned he was to be found. Upon arrival, appellant remained in his automobile and Jack entered the cafe and asked Arlis and his brother Jim to step outside and talk. As to what followed, there is a conflict in the evidence. Arlis testified that he and Jack stopped in front of the cafe and that Jack asked him if he and Jim had ganged up on his father on the preceding day, which question he answered in the negative. He stated that about this time the appellant got out of his automobile, pumped the shotgun which he had in his hand, and approached them saying 'You whey-bellied s--o--b----, I am going to kill you. Jack, step back.' At which time he (Arlis) threw his arm around Jack's shoulder and Jack made no effort to move. As to the position of the gun, Arlis testified 'He pulled that gun up in mine and Jack's belly.' He stated further that appellant raved and hollered around there for about five minutes and then finally calmed down and went to his automobile where he put away the gun. The gun was not fired nor did appellant attempt to fire the same.

Appellant restified that his son Jack and Arlis...