Perkins v. State

• Decision Date: 14 February 1912
• Citation: 144 S.W. 241
• Parties: PERKINS v. STATE.
• Court: Texas Court of Criminal Appeals

144 S.W. 241

PERKINS v. STATE.

Court of Criminal Appeals of Texas.

February 14, 1912.

Appeal from Mills County Court; S. H. Allen, Judge.

Andrew Perkins was convicted of aggravated assault and battery, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was prosecuted in the county court for an aggravated assault and battery on Julius Venable, was found guilty and fined $25 and 30 days confinement in the jail.

Heretofore this court reversed Perkins v. State, 138 S. W. 133, appealed by him, which grew out of the same transaction, in which case he was convicted of an aggravated assault on Mable Venable; but the evidence, as reported by the opinion in that case, is altogether different from the evidence shown by the record in this case. So the charge of the court in this case is very different from that stated in the other case.

In this case we will state substantially the whole of the testimony. The state proved by Julius Venable, the assaulted party, that he was 11 years old when the case was tried June 6, 1911; that on December 18, 1910, just about dusk, he was going to church with his little sister Mable, 12 years old, and his cousin, Lula Venable, in the village or town of Star; that they were going along the road; that he saw the defendant in his one-horse buggy, approaching them; that he was then driving very fast and whipping his horse; that he and the other children went out to the side of the road near the fence; that the defendant ran over him and the other two children, and cut a gash in his head about an inch and a half long; that the doctor had to sew it up, and it took about three weeks to heal. There were other bruises over his body, but the cut on his head was the worst he got.

Mable Venable, for the state, testified: She was a sister of Julius Venable, 12 years old when the case was tried. She and her brother and their cousin Lula started to church at Star on December 18, 1910. While in the road to church, two buggies came down the road, driving very fast; the horses running. They stepped out of the road to one side, and about that time the appellant's buggy ran over them. They were off to the side of the road about five or six feet from the fence when they were run over; they tried to get out of the way, but did not have time. On cross-examination, she testified: When she first saw the defendant on that occasion, he was about 50 feet away. She did not pay much attention to it till he was right at them, when they tried to get out of the way, and stepped out to the side of the road close to the fence, and about that time the buggy ran over them. This occurred about dusk in the town of Star, Mills county, Tex., on December 18, 1910.

Rex Clifton, for the state, testified: On December 18, 1910, he and Erick Eddy started to church about dark, on a horse, together, riding down the middle of the road. They met two buggies running. One passed on one side and the other on the other side of them. The appellant's buggy was a little in the lead of the other. Appellant alone was in his buggy, and two or three people were in the other. He saw the appellant's buggy run over the Venable children, and went to them. After the buggy ran over the children, it passed on down the road about 20 or 30 steps and struck a post, and the driver was thrown out. He then went down to where the buggy was, and saw it was appellant. On cross-examination, he testified: He did not know who it was in the buggy when the buggy passed them; they were coming fast; the horses were in a long lope. He knew it was appellant's buggy that ran over the children. There was a turn in the lane where the horses ran against the post. When the buggy struck the post, appellant was thrown out, and he went to and helped him. Appellant was then staggering, "and I think he was drunk." He (witness) was about 12 feet away when the buggy ran over the children.

Erick Eddy, for the state, testified: That he and Rex Clifton started to church, riding on a horse, on Sunday December 18, 1910. They met two buggies that were going very fast. Appellant was in one of them; he was some distance off when the witness first saw him, and when he got within 40 or 50 feet of the Venable children he was slapping his horse with the lines, and the horse was running in a long lope. He had his lines in his hands, and when he got close up to the children he saw him draw up his lines, so that they were tight. His buggy passed Rex and him to one side, and the other buggy to the other side. The other buggy was a little behind appellant's. He saw appellant when he ran over the children; they were to the outside of the road, and he (witness) was in the middle of the road, about 10 or 12 feet away, when appellant's buggy ran over Julius Venable. On cross-examination, he testified: He thought appellant was slapping his horse with the lines; he didn't think he was jerking the horse to stop him. He didn't then know for certain that it was appellant in the buggy when he passed him. It was dark, and he thought it was he. He knew that it was his buggy that ran over the children. The other buggy passed on the other side of them. He went to the post where the buggy was wrecked, and saw that it was appellant who was in the buggy. When the buggy hit the post, appellant was thrown out on the ground. "He might have been staggering from the effects of the fall."

John Whidden, for the state, testified: "I went with Andrew Perkins from McGirk to Center City on December 18, 1910. He did not have any whisky. I did not see him drink any whisky that day, either at Center City or at Long Branch. He did not drink any whisky at any time that day while I was with him. He was not drunk while I was with him. I got out at Long Branch, between Center City and Star, about halfway, and about three or four miles from Star. I got out of the buggy, because Perkins would not manage his horse. I know the horse that Andrew Perkins was driving. It was a fiery horse; it did not need to be whipped to make it travel; it would not stand for any whipping. At Star I went to the defendant's horse and buggy by the post, where the wreck occurred. I hitched the horse back to the buggy. One of the lines was broken, and some of the other harness was broken, and the buggy was broken. The crossbar, to which the singletree is attached, was broken, and as well as I remember one of the straps that holds the shafts was broken. When I got the horse and buggy, the horse was broken entirely loose from the buggy, and was standing facing the buggy. The bits were out of the horse's mouth, and the bridle was broken." (This was in full the testimony of this witness. Evidently all of the breaking of the harness and the buggy was when it ran into the post; and the evidence does not show or tend to show that any of it was broken before then.)

Willis Booker, for the state, testified: That he lived within 30 or 40 yards of the place where the children were run over. He carried one of them to his house after they got hurt. The lane makes a slight turn near his house. The horse ran against the post where the road turns. When appellant walked away from the buggy, he staggered. "I think he was drunk." The children were 7 or 8 feet from the fence when run over. The bottom part of the fence was poultry netting, about 2½ or 3 feet high, and the balance was barb wire.

Will Hawkins, for the state, testified: He saw the defendant at Dr. Brooken's house after the horse had thrown him out at the post; he was drunk. He went to where his horse hit the post; he had then been hitched back to the buggy. He saw the singletree was broken and tied with a rope. He did not see the buggy until after it had been temporarily repaired.

Lester Johnson, for the state, testified: "I know the horse that Andrew Perkins was driving when he ran over the children at Star. It is not a wild horse, but is fiery, and will not stand to be whipped. It can be managed all right if you do not whip it; but it will run if it is whipped."

The above is all of the testimony that was introduced by the state.

We give in full the testimony of the appellant, as follows: "I went from McGirk to Center City on December 18, 1910. We got some alcohol at Center City — four quarts. I drank some of it; don't remember of taking but two drinks. I don't remember anything about running over the children. The first time I found out about the children being hurt was when I was arrested on the road from McGirk to Center City. Langford and Preston told me about the children being hurt. I had no ill will or feeling against the children; never heard of or saw them before. I did not know their parents, and had no feeling against them."

In addition to appellant's testimony just quoted, it was admitted that Dr. Brooken, if sworn, would testify: That the defendant came to his house on the night that the children were run over in a very drunken condition. He seemed to be dazed and could talk of nothing except the trouble he had about his horse running into the post and throwing him out. He was in a condition of temporary insanity; but whether due to his drunkenness or to being addled by his fall the witness could not state, but knew that defendant was very drunk, and in an irresponsible condition. This is the whole testimony shown by the statement of facts.

The court in the charge first correctly stated the case to the jury. He then copied in his charge to the jury substantially, if not literally, the following articles of the Penal Code: 1008 (new), 587 (old); 1013 (new), 592 (old); 1019 (new), 598 (old), and subdivisions 5, 7, and 8 of 1022 (new), 601 (old), and 1024 (new), 603 (old). He then submitted to the jury the case in this charge, which we quote in full:

"Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant did, in the county of Mills and state of Texas, on or about the 18th day of December, 1910, as...