Morris v. State, 23494.

• Decision Date: 04 December 1946
• Docket Number: No. 23494.,23494.
• Parties: MORRIS v. STATE.
• Court: Texas Court of Criminal Appeals

198 S.W.2d 901

MORRIS v. STATE.

No. 23494.

Court of Criminal Appeals of Texas.

December 4, 1946.

Rehearing Denied January 29, 1947.

Appeal from Anderson County Court; Luther C. Johnston, Judge.

Marshall Morris was convicted of aggravated assault, and he appeals.

Judgment affirmed.

J. D. Pickett, of Palestine, for appellant.

Justice, Moore & Justice, Special Prosecutors, of Athens, V. L. Pitman, Co. Atty., of Palestine, and Ernest S. Goens, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for aggravated assault; punishment assessed, one year in jail and fine of $500.

Appellant was charged by complaint and information with committing an aggravated assault upon Jimmie Gantt, he being an adult made and she a female.

It is urged that the verdict does not find sufficient support in the evidence because the testimony of Miss Gantt is contradicted in material points and that the probative force of her testimony is destroyed by an attempt on her part on the night before the trial to procure money from appellant's counsel on condition that she would stop the prosecution.

The sufficiency of the evidence being challenged calls for detailing the State's evidence at greater length than would ordinarily be thought necessary.

Miss Gantt had been in Palestine about four months and lived in the nurses home at the sanitarium where she was employed. She was acquainted with the appellant, he having been a patient at the sanitarium where she had nursed him. Her evidence was substantially as follows: On the night of May 25, 1946, she had gone to a cafe where she had expected to meet some boys to go motorcycle riding. It had been raining and she missed the boys. She saw appellant and his wife, and because of the rain, asked appellant and his wife to take her home. Appellant suggested that she go with them to appellant's home, which she did. After they reached there appellant's wife opened some beer and prosecutrix drank part of one bottle, and appellant's wife drank some beer and appellant drank some liquor. Appellant mentioned that he had forgotten to bring his gun from the store, and told his wife not to let him forget it; said he had a good gun at the house and sent his wife to get it. He fired the gun although both his wife and prosecutrix requested him not to fire it. His wife took the gun from appellant and carried it into another room. When she came back she and appellant got into a fuss over appellant and "his bootlegging and just how long he could go to the penitentiary for bootlegging." Appellant said if he went to the penitentiary he would not come back to his wife, and she said it didn't make any difference to her; that she could get a divorce "automatically," and began to cry. Appellant jerked her and threw her back into the chair, and said she could go ahead and get it then. She began to cry louder and and went into the bath room. Appellant then turned to prosecutrix and said, "What do you have to say about it?" To which prosecutrix replied, "It's none of my business." Whereupon, appellant told her to shut up. Prosecutrix then said she had to leave. As she started to pass appellant he hit her with his fist. She staggered and fell against the door. She got up and appellant hit her again, knocking her down the second time. The first blow was about the eye and the second on the jaw. Appellant's wife came back into the room and asked appellant not to hit prosecutrix any more, and he said, "Let the S. B. lay there." Appellant and his wife both helped prosecutrix up off the floor. He refused to let prosecutrix leave the house or to have a doctor. All three then went out of the house and prosecutrix slipped on the concrete porch and fell. Appellant jerked her up and pulled her back in the house. She commenced screaming and appellant took a towel from his wife and stuffed it into prosecutrix's mouth. At this juncture some officers came and appellant told prosecutrix, "If you say anything, so help me, I will kill you," and said to her if she told anybody what had happened he would kill her. Appellant and his wife then went into another room and prosecutrix left out the back way and went to a neighbor's house and secured Dr. Hunter to treat her injuries. The doctor testified that prosecutrix had a black eye (which was still discolored at the time of the trial some ten days later) and had bruises on her face and head; that the injuries were caused by some blunt instrument; that a blow from a fist or something similar could have caused them.

Monroe Johnson, Assistant Chief of Police of the City of Palestine, and Lester Jordan, a Highway Patrolman, had heard of some trouble at appellant's house. They saw appellant and his wife in their car on the street and asked about the trouble. Appellant told them he and his wife had picked up prosecutrix and they had gone to his house and drank some beer; that prosecutrix became somewhat hysterical, was crying and screaming and that he "knocked hell out of her to keep her from screaming and quiet her down." Appellant did not tell these officers that prosecutrix was trying to hit him, nor that she had tried to get his wife to have dates with other men, and that he was trying to put her out of the house. This was the defensive claim upon the trial, supported by the testimony of appellant's wife. Appellant himself did not take the stand.

Appellant's counsel testified that prosecutrix came to his house the night before the trial and offered to settle the case out of court for five hundred dollars. Prosecutrix admitted being at counsel's house, but explained that her presence there was because her father had been murdered and she had been told that she would be asked about this; that she went to request counsel not to ask her about it and he promised that he would not, which promise he kept. The record shows that during the conversation something was said about settling out of court. Prosecutrix said she would have settled the case out of court but denied suggesting any money consideration. Other matters were placed in evidence by appellant which contradicted prosecutrix in some particulars, or were to the effect that she had not reported to officers or others certain things testified to by her upon the trial.

All of the things relied upon by appellant as impeaching or contradicting prosecutrix went to her credibility and the weight to be given her testimony by the jury. The verdict returned reflects that the jury accepted her testimony. We think it is beyond the province of this court to say that the probative force of her testimony was destroyed without substituting our judgment for that of the jury upon issues of fact of which they were the exclusive judges. Art. 657, C.C.P. It follows that we decline to hold the evidence insufficient to support the verdict and judgment.

We next discuss the question raised in bill of exception number three, which is presented in appellant's brief as Point No. 4. The bill recites that while prosecutrix was on the witness stand she told about a "confusion and fuss over Marshall (the appellant) and his bootlegging," at which point in her evidence the private prosecutor said to her, "Just tell what was said,'" and witness replied, "Just how long he could go to the penitentiary for bootlegging." Appellant objected to the last statement above quoted and requested the court to withdraw same from the jury on the ground, as stated in the bill, "* * * that it could not throw any light on the transaction for which defendant was being tried, and was inflammatory and highly prejudicial to the defendant." The court refused to withdraw the statement, and appellant excepted to the action of the court in not withdrawing that part of prosecutrix's evidence as to "just how long he (appellant) could go to the penitentiary for bootlegging." It is noted that appellant did not object to nor seek to have withdrawn the witness' evidence that appellant and his wife got into a "fuss over Marshall and his bootlegging." We find ourselves in agreement with the general principles of law advanced by appellant to the effect that if evidence is inadmissible for any purpose a general objection will reach it, and that an independent crime is generally not provable against the accused on trial, and that a wife...