Powell v. State

Decision Date31 May 1893
Citation22 S.W. 677
PartiesPOWELL v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from Victoria county court; J. L. Dupree, Judge.

John Powell appeals from a conviction for aggravated assault and battery. Affirmed.

W. L. Davidson, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of aggravated assault and battery, and his punishment fixed at one month in the county jail, from which he appeals.

The agreed statement of facts shows that appellant and one Bob Blanchard got into an altercation, in which axe helves were used, appellant bringing on the difficulty by slapping Blanchard in the mouth. Blanchard seized an axe helve, which was taken from him by appellant, and, while trying to get another, appellant, to prevent him, struck at him, when the blow glanced, and accidentally struck one Lagus. Appellant and Blanchard were both robust young men; Lagus, an old decrepit man. The fight occurred in front of Lagus' store. The question is whether appellant can be guilty of an aggravated assault. He pleaded guilty to the assault on Blanchard, and was fined. Article 486, Pen. Code, declares that an assault or an assault and battery may be committed though the person actually injured was not the person intended to be injured; but it is well settled, if appellant was acting in self-defense when he accidentally struck Lagus, he is not responsible. In the Plummer Case, where defendant, in defending against an unlawful attack upon himself, accidentally shot the wife of his assailant, this court held that the trial court erred in instructing the jury that defendant could be convicted of an aggravated assault under such circumstances, but stated the law to be that where, in the justifiable defense of himself against apparent danger of death or serious bodily injury, a party unintentionally or accidentally injures a bystander, he is guilty of no offense. Plummer's Case, 4 Tex. App. 310; Clark's Case, 19 Tex. App. 495. In the case at bar it does not appear that appellant was acting in self-defense. He provoked the contest by slapping Blanchard in the mouth, and brought on the necessity, if any existed, of striking at Blanchard with the axe helve. In striking at Blanchard with the axe helve he was in the wrong, and could not justify himself. If he had killed him it would have been manslaughter at least. A person cannot avail himself of a necessity which he had knowingly and willfully brought on himself. Logan's...

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4 cases
  • Spotts v. Spotts, 30406.
    • United States
    • Missouri Supreme Court
    • December 20, 1932
    ...v. Hatton. 231 Pac. 987; Tanner v. Schultz, 223 Pac. 174; 31 C.J. 1143; Turner v. Jenkins, 79 Ill. 228; Gebhardt v. United Rys. Co., 22 S.W. 677. (5) The judgment of the court amounts to a wanton taking of property from minor defendants, without due process of law, etc., in violation of the......
  • Spotts v. Spotts
    • United States
    • Missouri Supreme Court
    • December 20, 1932
    ... ... cannot be considered in the appellate court. Roden v ... Helm, 192 Mo. 71; Wentzville Tobacco Co. v ... Walker, 123 Mo. 662; State ex rel. v ... Burckhardt, 83 Mo. 430; Bartlett v. Draper, 3 ... Mo. 487; State v. Blanchard, 326 Mo. 965. (3) ... Exceptions are not deemed, ... 926] into the record so that they ... might be reviewed on writ of error. [3 C. J. 300-314; 2 R. C ... L. 27, secs. 3, 140, sec. 113; Powell on Appellate ... Proceedings, 46.] Of course, the questions to be presented by ... the bill of exceptions must have been raised in the lower ... ...
  • Rogers v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 27, 1913
    ...631 ; * * * Sullivan v. State, 31 Tex. Cr. R. 486 [20 S. W. 927, 37 Am. St. Rep. 826]; Jackson v. State, 32 Tex. Cr. R. 192 ; Powell v. State, 32 Tex. Cr. R. 230 Mathis v. State, 34 Tex. Cr. R. 39 ; Burris v. State, 34 Tex. Cr. R. 387 ; Plew v. State, 35 S. W. 366." See, also, cases cited i......
  • Grayson v. City of Marshall
    • United States
    • Texas Court of Appeals
    • March 13, 1912
    ... ... of the ordinance, he should also file a bond in legal form in the sum of $5,000 with some bonding corporation authorized to do business in the state as security thereon, and payable to the city of Marshall, conditioned that the grantee should commence work in the city within two months after the ... ...

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