Piper v. State

• Citation: 124 S.W. 661
• Parties: PIPER v. STATE.
• Decision Date: 12 January 1910
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 661

124 S.W. 661

PIPER v. STATE.

Court of Criminal Appeals of Texas.

January 12, 1910.

Appeal from Ellis County Court; J. T. Spencer, Judge.

Bob Piper was convicted of aggravated assault, and he appeals. Reversed and remanded.

Clyde F. Winn, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of an aggravated assault upon Mahala Drake, a woman.

The state's case is sustained by the testimony of the witness Mahala Drake, who testified about as follows: That appellant and two other white men came by her house in a buggy. She remarked to them: "This ain't a public road through here. Mr. Harbin had told us not to let anybody pass through the farm." Appellant replied: "I don't give a damn." She said: "You talk so bigoty about it. I was just going to tell you the way through here." Appellant said: "Damn you." Witness says: "He acted sorter like he was going to come towards me. I said: `Don't come, or I'll blow your brains out.' I don't know when he jumped out of the buggy. He said: `What in the hell and God damnation do I care for your gun? You damn black bitch, I'll cut your head open with this ax.' He was picking up the ax when he said this. I ran. I have no idea at all how far off my husband was. Bob Piper ran up to the front door of the house in which I was standing when we were talking to each other, and I turned and ran out of the back door of the house. Bob Piper came in at the front door. He struck at me two times with the ax, but did not hit me. When he got into the front door, I ran out of the room through the middle door. It was a small room. Bob Piper did not run out of the back door after me. When I got out of the back door, I called to my husband." The road these men were traveling ran in about 8 or 10 feet of the house, and had been used by the public for 15 years or longer.

The two Tittle boys were in the buggy with appellant. As soon as the trouble came up, they drove off down in the gully some 20 steps away. They both testified to practically the same thing, and almost identically in the same manner: That they were driving along the road going to Chambers creek fishing, as was appellant. That they were in a road commonly used by the public in going to and from Chambers creek. About a mile from the creek they passed a negro cabin, in the front door of which stood the witness Mahala Drake. Appellant said to her: "Ain't you afraid your house will blow off the blocks?" The house was upon high blocks, and there had been recently a storm in the neighborhood. That Mahala Drake replied: "This is no public passway through here, and you can't go through here." Appellant replied: "We are already on our way, and will go through this time." Mahala Drake said: "White man, don't you start nothing here; I've got a gun here, and I will blow your brains out." And as she said this she turned back into the house. Appellant jumped out of the buggy, and grabbed up an ax, and ran hurriedly towards the door. At this juncture the two Tittle boys drove down in the ravine, which was about 6 or 8 feet deep, and some 15 or 20 steps from the house. They both denied emphatically that appellant cursed Mahala Drake, or used any profane language imputed to him by her. When Mahala Drake said, "This is not a public passway through here," appellant did not reply, "I don't give a damn." Nor did he reply to Mahala Drake when she said, "I've got a gun here, and I will blow your brains out." Appellant did not reply: "What in the hell and God damnation do I care for your gun? You damn black bitch, I'll cut your head open with this ax." He did not say this, or anything like this. They did not see what occurred after they drove away.

Appellant took the stand in his own behalf, and stated he had lived in that neighborhood 25 years, and practically, as did the Tittle boys, that they were going fishing over a road through the Harbin farm, which had been used for 15 years by the public in going to and from the Chambers creek. When they came to the negro cabin referred to, Mahala Drake was standing in front of the door. He remarked to her: "Ain't you afraid your house will blow off of those high blocks?" She replied: "This ain't no public road through here, and you can't go through." Appellant replied: "Well, we've done started now, and we will go through this time." She said: "White man, don't you start anything here; I've got a gun, and I'll blow your brains out." When she said this, appellant says she turned around and started back in the house, and that he jumped out of the buggy, picked up an ax that was lying near, and said: "Do not get that gun; if you do, you will have to use it." Appellant says he ran hurriedly towards her. When she saw him coming she ran out of the back door of her house. He was then at the front door, but did not go into the house. He did not strike at her with the ax; was not close enough to her to hit her with it. He further says, when he saw her run out at the back, he turned and went back to the buggy, and they went away. He says: "I got the ax and ran towards the negro woman, Mahala Drake, solely for the purpose of preventing her from getting a gun and shooting me." He got in his buggy, and they went on their fishing excursion. He testified he did not use the language imputed to him by the woman, and that it was "entirely false and untrue"; that he used no vulgar or profane language of any kind towards her on this or any other occasion.

This is practically the case on the facts.

1. Among other things, appellant sought a new trial on the ground of newly discovered evidence....