Pounds v. State

• Decision Date: 12 March 1941
• Docket Number: No. 21493.,21493.
• Citation: 150 S.W.2d 798
• Parties: POUNDS v. STATE.
• Court: Texas Court of Criminal Appeals

150 S.W.2d 798

POUNDS v. STATE.

No. 21493.

Court of Criminal Appeals of Texas.

March 12, 1941.

Rehearing Denied May 21, 1941.

Appeal from District Court, Young County; Allan D. Montgomery, Judge.

Newt Pounds was convicted of an assault with intent to murder without malice, and he appeals.

Judgment reformed in matter of sentence and affirmed as reformed.

Jimmie Cunningham and Tom M. Miller, both of Graham, for appellant.

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

GRAVES, Judge.

Appellant was convicted of an assault with intent to murder without malice, and assessed a term of two years in the penitentiary.

The person charged to have been assaulted by appellant was one G. W. Meeks, a seventy-two year old man. From the facts relied upon by the State, we gather that the Meeks family and the Pounds family lived close together in tent houses near the Salt Creek section of the city of Graham, in Young County. That appellant's mother and one of her sons, other than appellant, lived together, and the Meeks family consisted of Mr. Meeks, a mentally defective son, J. C. Meeks, and a daughter, Mary, who lived together near where the Pounds family lived. On the day of the difficulty that resulted in this prosecution, the State's witness, Mary Meeks, testified that she heard her defective brother, J. C. Meeks, holloing, and she looked down near the Salt Creek and saw appellant and his brother slapping J. C. Meeks and beating him. The witness and her father then went down where the trouble was, and her father then asked these men what J. C. Meeks had done, at which time appellant's brother Carroll ran up to the father and grabbed him, and appellant began to beat the old man while the brother was holding the father's hands behind him. Mrs. Pounds, the mother, had a pistol in her hand. The witness Mary ran and got two mesquite clubs and ran back to the scene, and Mrs. Pounds "throwed the gun down on me (Mary) and said she'd blow my g____ d____ brains out if I hit them a lick." She told Newt (appellant) to hit him with that hammer, and Newt took an ordinary claw hammer out of his pocket and hit G. W. Meeks with it in the temple. The old man fell, and the daughter ran to him and lifted his head up, while J. C. Meeks went after the doctor, and the Poundses retired to their tent. In a few moments appellant returned to the scene of the difficulty after his claw hammer, and Mary said: "`You have killed papa,' and he says `I hope to God I have killed him,' and he went around on the other side and kicked papa in the hips and on the side. Papa was lying down at that time. * * * After the defendant kicked my father he wiped the blood off of my father's face and throwed it in my face— he just flipped the blood in my face."

The skull of G. W. Meeks was crushed and pieces of bone were taken out of his head. He was dangerously injured, and the attending physician testified: "The injuries he had would kill a person; injuries like that, the patient most always would be killed instantly with that kind of a wound. Not over one or two per cent of the people out of a hundred survive that kind of an injury. Any time you have an injury to the head, when you've got a fractured skull the patient doesn't remember what happened, they don't know where they are as a rule for a few hours, and with that kind of injuries they don't know how it occurred. I had Mr. Meeks under my care and observation for seven or eight months. He was in the hospital about ten days or two weeks. I don't think Mr. Meeks is able to give a statement of what happened. I don't think he is a competent witness now to testify as to what happened." The doctor further testified: "On or about the 19th day of May, 1939, I had occasion to examine the injuries sustained by George W. Meeks. I don't remember what time it was I examined him; it was at their tent or shack over across the creek when I first examined him. I was called out there to see him. I found an injury to his head, on the left side of his temple, about in this position. It was a round wound about something like that, about as big as a dollar. The injury I found on Mr. Meeks could have been inflicted with a claw hammer or a round blunt instrument. A claw hammer would make the kind of injuries I found on his head. The kind of injuries he had, there was just a round hole driven in his head, in his skull, and the bone was driven down about an inch into his head; I got out three pieces of bone—the edges of the wound, the skull wound; the skull wound was ragged edge; the skull wound was practically a straight wound, just like it was punched out with a punch."

The appellant used his mother and brother as witnesses. It was claimed by them that just before the trouble the defective, J. C. Meeks, passed by their house and began throwing rocks at them and cursing the brother, and threatening to kill him. J. C. Meeks went on home, and soon thereafter he was seen some seventy-five yards away from the Pounds' place near the Salt Creek. Appellant was passing along near there. Meeks had a pocket full of rocks, and appellant and Meeks were talking, at which time G. W. Meeks and Mary began running down to the creek from their home, and G. W. Meeks began beating appellant and saying he would kill him, and a general melee ensued, but at no time did appellant nor his brother strike anyone. Appellant's mother was not there; she stayed at the house. The witness saw J. C. Meeks hit G. W. Meeks with a rock, and appellant and his brother ran away from the scene. Mr. Meeks had a pistol; the Poundses did not own one. They did not strike anyone at any time, and both the mother and son Carroll denied practically all the incriminating testimony given by Mary Meeks, thus creating a question of fact to be settled by the jury, and which they settled in favor of the State.

Appellant's bill of exceptions No. 1 relates to certain testimony offered by a witness, but nowhere therein is it shown who the witness was; the objection being that the witness had not been qualified as an expert, and therefore could not give his opinion as to whether G. W. Meeks was competent to testify at that time. We apprehend that the witness was doubtless the physician who treated Mr. Meeks for many months after the assault complained of herein. We think he was an expert and had qualified himself as such. However, it has been held that: "A non-expert may testify that a witness is of simple mind and without memory where he is acquainted with the witness and knows of these characteristics as facts." Branch's P.C., Sec. 131; Johnson v. State, 42 Tex.Cr.R. 618, 62 S.W. 756; Key v. State, 72 Tex.Cr.R. 129, 161 S.W. 130. This bill is overruled.

Bill of exceptions No. 2 complains of the trial court's failure to allow the witness Minnie Pounds, appellant's mother, to testify that "as viewed from the defendant Newt Pounds' standpoint it would appear that Newt Pounds was in danger of serious bodily injury from George Meeks."

It is to be noted that appellant did not take the witness stand in his own behalf, and was thus attempting to place his self-defense theory before the jury by means of his mother's offered testimony as to how this transaction impressed her, and therefore by analogous reasoning it affected appellant in the same way. According to the testimony of appellant's mother and brother, who claimed to be about seventy-five yards away from the scene of the trouble, appellant did absolutely nothing in this transaction save to be knocked down by Mary Meeks, and then get up and run away from the scene as quickly as possible.

There seems to be a line of decisions beginning with the case of Thomas v. State, 40 Tex. 36, 43; Cochran v. State, 28 Tex. App. 422, 431, 13 S.W. 651; Robinson v. State, Tex.Cr.App., 57 S.W. 811; Scott v. State, 49 Tex.Cr.R. 386, 93 S.W. 112; Latham v. State, 75 Tex.Cr.R. 575, 172 S. W. 797, that held that a witness not engaged in the controversy could give his version as to the impression made on witness' mind by the acts of the deceased or injured party during the transaction. However, the above cases were considered and virtually overruled in an exhaustive discussion by Judge Lattimore in the Dunne Case, Dunne v. State, 98 Tex.Cr.R. 7, 263 S.W. 608, 612. In that case the witness Keenum was asked to give the impression made on witness' mind as to the acts of the deceased at the time he was killed. After a comprehensive discussion of the above cited line of cases, the Dunne opinion says: "The state has the same right to opinion testimony as the defense. One who asserts that he shot on appearances of danger, as viewed from his standpoint, might find himself confronted by an array of witnesses who were present at the shooting, and each of whom would then be permitted to swear that he saw the occurrence, and that, in his opinion, the deceased was doing absolutely nothing indicating a purpose to attack or harm the accused. Soon the rules requiring that witnesses state facts would be abrogated, and cases be tried on a constantly broadening rule of conjecture and opinion. While we doubt the soundness...