Moody v. State

• Decision Date: 04 December 1907
• Parties: MOODY v. STATE.
• Court: Texas Court of Criminal Appeals

105 S.W. 1127

MOODY v. STATE.

Court of Criminal Appeals of Texas.

December 4, 1907.

Appeal from Delta County Court; Jno. L. Ratliff, Judge.

J. C. Moody was convicted of assault, and appeals. Reversed and remanded.

Patteson & Sharp, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The verdict in this case is as follows: "We, the jury, find the defendant guilty, and assess his punishment at a fine of $25.00. S. T. Johnson, Foreman." The court submitted the issues of aggravated and simple assault in his charge.

We are unable to state of which offense the jury found appellant guilty. Article 751 of the Code of Criminal Procedure of 1895 provides: "Where a prosecution is for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher degree (naming it), but guilty of any degree inferior to that charged in the indictment or information." If the issue of aggravated assault alone was submitted to the jury, this verdict would have been intelligible. It would not really have been necessary for them to state the grade of the offense. See Styles v. State, 37 Tex. Cr. R. 599, 40 S. W. 498, and Lee v. State, 41 Tex. Cr. R. 557, 55 S. W. 814. Where both issues are submitted, a jury should state of which degree they convict; and where, as in this case, the verdict may have been attributed to either degree, it is too uncertain, and the court cannot know for what offense the conviction was obtained, nor how to enter judgment. See Guest v. State, 24 Tex. App. 530, 7 S. W. 242; Slaughter v. State, 24 Tex. 410; Alston v. State, 41 Tex. 39; Senterfit v. State, 41 Tex. 186; Lomax v. State, 38 Tex. Cr. R. 318, 43 S. W. 92. These authorities we think are directly in point in this case. Where the party stands charged with aggravated assault, and the jury determines to convict of a simple assault, it should be specified in the verdict. See Bowen v. State, 28 Tex. App. 498, 13 S. W. 787; Hays v. State, 33 Tex. Cr. R. 546, 28 S. W. 262; McCulloch v. State (Tex. Cr. App.) 65 S. W. 94; Rousey v. State (Tex. Cr. App.) 65 S. W. 372; Millard v. State (Tex. Cr. App.) 59 S. W. 273. The Lee Case, supra, is in point. In that case the verdict was for $25, as it is here. Both issues were submitted to the jury.

Bill of exceptions shows that the state was permitted to prove by Richard Bryant that after the difficulty between himself and the prosecuting witness had terminated, and at a time when the prosecuting witness was sitting on the ground, McClanahan came up where they were, and threw some soda-pop bottles, and said: "Let me to the damned son of a bitch, and I will kill him." Objection was urged on many grounds. The theory of the state was that Moody and Bryant and others on the occasion of the difficulty made an assault on the prosecuting witness, and that one of the Bryants had begun the difficulty by taking the prosecuting witness to one side and catching him by the shirt collar, and asking him with reference to certain insulting remarks made about the cousin of the prosecuting witness, who was also the widow of the witness' deceased brother. The state's theory was that that witness and appellant and others then began to assault him otherwise than by catching him by the throat with a knife and bludgeon or instruments of some sort, cutting a wound an inch and three-quarters on his shoulder, knocking him down, rendering him insensible for a short space of time, and doing him other outrages in the way of personal violence. While sitting on the ground McClanahan came up, and the state was permitted to prove his acts, remarks, and conduct subsequent to the difficulty. We are of opinion this testimony was inadmissible, and should not have been used against appellant.

There are quite a lot of exceptions to the court's charge, as well as to his refusal to give special instructions requested by appellant. We deem it unnecessary to go into an extended discussion of these charges. The court gave a definition of principals, and...