Moore v. State, 15908.

• Decision Date: 03 May 1933
• Docket Number: No. 15908.,15908.
• Parties: MOORE v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W.2d 453

MOORE v. STATE.

No. 15908.

Court of Criminal Appeals of Texas.

May 3, 1933.

Rehearing Denied May 31, 1933.

Appeal from District Court, Falls County; E. M. Dodson, Judge.

David Moore was convicted of assault with intent to murder, and he appeals.

Affirmed.

Terry Dickens and Tom B. Bartlett, both of Marlin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

Assault with intent to murder is the offense; penalty assessed at confinement in the penitentiary for one year.

Connally Grayson was struck on the head with a baseball bat in the hands of the appellant, David Moore. The blow caused what the doctor called a "depressed fracture of the skull." Grayson was rendered unconscious by the blow, and an operation became necessary. He was in the hospital for twelve days and under treatment for two months.

Grayson was at a baseball game. Moore came to Grayson and told him to move. Grayson said, "All right." Moore said, "Well, I mean for you to get up and get away." Moore then walked away, but later came back. Grayson was sitting with his hands over his knees and his back to Moore. Moore said, "Didn't I tell you to get up from here?" As Grayson started to get up and leave, he was struck with a bat. They had no previous ill feelings. The injury was inflicted on May 11th. Grayson remained unconscious for many days. The blow was struck on the left side of the head just above the ear.

Moore's statement in the way of a confession is as follows: "My name is David Moore. I live here in Marlin. I hit a boy with a ball bat down in the Emerson Addition on Commerce Street at a ball game. I was keeping the crowd back from the base lines, and I had tried to get this boy to get back at least three times. The last time I told him to get back he said, `God damn it, I am not going to get back,' and it looked like he was making an attempt to get up and that is when I hit him. In a way it was through passion. These town boys cut one another up so and I did not know what he might do. I did not see any knife on him. He just made a move to get up and said that he was not going to get back. He did not put his hands in his pocket or anything like that. I know this boy when I see him but I do not know his name."

Appellant testified that he was 43 years of age and a native of Falls county. It appears from his testimony that it was agreed that he would assist those who were playing baseball to keep the women and children from getting on the base lines where some of them might get hurt; that he was trying to keep them back off the lines. From his testimony we quote: "* * * And I passed by this boy first—he was standing up and I said, `Man, get back off the line,' and I didn't pay him any attention. There were four or five boys acting pretty hard and so they asked me again to get the crowd off the lines, and I came back and they were sitting down on the line, and I said, `Fellows, you ought to get back off the line; you can't sit down there,' and this boy remarked, `I am sitting down here,' and I said, `We are going to lift you back,' and Willie Smith and myself lifted him back; and he said, `Is this your brother? He don't know who he is fooling with,' and I saw he was getting mad, and he went back and sat on the line, and I decided I wouldn't fool with him any more—I thought one or two wouldn't hurt, and this man and the others crowded up, and I went back to third base and Ernest Frazer was crowding up, and they couldn't see the baseman; and I said, `You ought to get off the line,' and he said, `Make that crowd back yonder get off,' and I said I would go back and see, and I spoke to one of the boy players, `Charlie, will you get off the line; if not, get back close to the other people's feet, and he finally drug back close to where he should, and I turned away from him and walked to...