Mosely v. State

• Decision Date: 19 November 1902
• Citation: 70 S.W. 546
• Parties: MOSELY v. STATE.
• Court: Texas Court of Criminal Appeals

70 S.W. 546

MOSELY v. STATE.

Court of Criminal Appeals of Texas.

November 19, 1902.

Appeal from district court, Smith county; H. G. Robertson, Judge.

Frank Mosely was convicted of assault with intent to murder, and appeals. Affirmed.

B. B. Beaird, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of two years.

The statement of facts shows that the assault occurred at a dance. Appellant, Frank Mosely, and prosecutor, Charley Williams, were both negro men, and were married. It appears that on the night of the assault prosecutor carried one Mattie Mitchell, a colored woman, who lived in the neighborhood, to the dance. Appellant, however, insisted on carrying her home, despite the opposition of Charley Williams. The difficulty arose over this matter. In the conflict which ensued, appellant was severely cut with a knife by Charley Williams, and Charley was shot by appellant. The theory of the state was that appellant made the first attack on prosecutor, whereas the theory of the defendant was that the prosecutor, Charley Williams, made the first attack on him and cut him with a knife. The state introduced, besides prosecutor, two witnesses, who saw and testified about the difficulty, and appellant introduced three witnesses besides himself, who testified that prosecutor was the aggressor in the difficulty and made the first attack.

Appellant complains in the motion for new trial that the court failed and refused to give the special requested instruction to the jury, and refers to the same as a file paper in the cause; but we do not find it in the record, consequently it cannot be considered.

He also complains because the court did not in its charge on assault with intent to murder require the jury to find that defendant had the specific intent to kill, etc.; his contention being that the word "specific" is omitted from the court's charge. An inspection of said charge discloses that the court did not use this word. However, the charge required the jury to believe beyond a reasonable doubt before they could convict appellant of an assault with intent to murder that the assault was made on the part of appellant with the intent to murder Charley Williams. The court also told the jury that unless they believed that the assault was made with malice aforethought, and with intent to murder, to...