Root v. State, 31479

• Decision Date: 02 March 1960
• Docket Number: No. 31479,31479
• Parties: Chester ROOT, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 154

334 S.W.2d 154

169 Tex.Crim. 382

Chester ROOT, Appellant, v. STATE of Texas, Appellee.

No. 31479.

Court of Criminal Appeals of Texas.

March 2, 1960.

Ben Hagman, Weatherford, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is aggravated assault by an adult male upon a female; the punishment, one year in jail.

The evidence viewed from the appellant's standpoint is thus stated in his brief:

"On the 16th day of June, 1959, the prosecuting witness, Ethelyn Baker, accompanied by another woman, Hattie Rice, came upon the premises at Possum Kingdom Lake, known as Costello Point on which the defendant had a trailer house and has resided there for some ten years or more, and had been in charge of same for the past three years; defendant testified that the women had been drinking and were disorderly, and had thrown some tires belonging to the defendant into the Lake and had been requested by him to leave; that Hattie Rice had threatened to enter his automobile and tear same up, and Appellant walked to his trailer house and armed himself with a pistol and upon coming outside, the said Hattie Rice picked up a beer bottle and was slipping up behind him while Ethelyn Baker was talking over the outside phone. Appellant pulled his weapon and ordered Hattie Rice to stop and asked Ethelyn Baker to let him use the phone. When Appellant called Phil Green, Mrs. Baker went around the phone booth and came up to the rear of defendant and grabbed the gun which was in his right hand hanging by his side and in the scuffle for the gun, it was discharged, shooting Mrs. Rice through the fleshy part of her upper right arm, defendant immediately phoned the sheriff and the county attorney, and the Lake Custodian and reported the incident."

The prosecuting witness and Hattie Rice gave a somewhat different version of the incident. Their version need not be stated in detail.

There is no contention that appellant intentionally shot Mrs. Baker. It was her testimony that appellant was pointing his pistol first at Hattie Rice and then at her, and when he approached her she grabbed his hand in which he had the pistol; that appellant jerked away and hit her over the head twice and as she turned away "he continued running behind me and hitting me over the head with his gun."

The evidence shows that appellant was an adult male and that Ethelyn Baker was a female.

The assault by striking her over the head with a pistol shown by the testimony of Ethelyn Baker, corroborated by that of Hattie Rice, sustained the allegation of the indictment and the verdict of the jury.

Appellant's first ground for reversal is predicated upon the overruling of his motion for change of venue.

This being a misdemeanor case, Art. 562, Vernon's Ann.C.C.P. providing for change of venue upon application of the defendant has no application. Colbert v. State, Tex.Cr.App., 331 S.W.2d 328; Duffield v. State, 118 Tex.Cr.R. 191, 43 S.W.2d 104; Burton v. State, 149 Tex.Cr.R. 579, 197 S.W.2d 346; Privitt v. State, 150 Tex.Cr.R. 524, 202 S.W.2d 681.

The fact that prior to the return of the indictment appellant had been charged with assault with intent to murder, a felony, does not change the rule. The trial in the County Court was upon indictment charging aggravated assault, a misdemeanor.

The next contention is that the State should not have been permitted to prove the nature and extent of the wounds inflicted upon the prosecuting witness, there being no aggravation alleged other than that the assault was made by an adult male upon a female. We do not agree.

The injuries inflicted were a part of the transaction and were admissible as res gestae. See Boyle v. State, 158 Tex.Cr.R. 468, 256 S.W.2d 574.

Several points of error are presented which relate to the cross-examination of witnesses who testified to the good reputation of appellant as a law abiding citizen.

The questions propounded on cross-examination inquired as to whether or not the witness had heard reports of appellant having made an assault upon other named individuals.

The examination of the character witnesses in the manner mentioned has been held permissible. Villarriel v. State, 163 Tex.Cr.R. 654, 295 S.W.2d 222; Perry v. State, 164 Tex.Cr.R. 122, 297 S.W.2d 187.

That the questions were propounded in good faith is demonstrated by the fact that witnesses were called by the State who testified that appellant's reputation for being peaceful and law abiding was bad.

The undisputed evidence establishing that appellant was an adult male and the assaulted party a female, the trial court properly declined to give the requested charge on simple assault.

In rebuttal the State called Hattie Rice, who had been placed under the rule with other witnesses. Counsel for appellant objected to her being permitted to testify and was permitted to examine her in support of his objection. She testified upon such examination that she was not in the courtroom and did not hear the testimony of Ethelyn Baker, but that she talked to Sam Cleveland (the district attorney who was assisting the county attorney in the prosecution).

"Q. And he told you about what Mrs. Baker testified too, didn't he? A. Well, Yes sir.

"Q. Was there an officer present at that time? A. Yes, but I don't know his name.

"Q. And where was that? Was that in this room here or in the Judge's office? A. It was in the judge's office."

It does not appear to the writer that the rule was shown to have been violated by either the witness or the prosecuting attorney. Williams v. State, 35 Tex. 355.

Ordinarily, "witnesses upon their retirement from the courtroom under the rule, are properly instructed not to discuss the facts of the case with any person other than the attorneys." 42 Tex.Jur. p. 63, Trial Criminal Cases, Sec. 43.

If the trial judge placed the witnesses in charge of an officer or instructed them not to discuss the facts with the attorney this record does not so show.

Assuming that the witness Hattie Rice violated the rule when the district attorney "discussed Mrs. Baker's testimony with her", or assuming that the trial court would have been warranted in not permitting her to testify because the district attorney violated the rule, the trial judge exercised his discretion in the matter and permitted the witness to testify, and the presumption is that such discretion was properly exercised.

No abuse of discretion is shown, hence no reversible error.

It is contended that the jury panel from which the jury was drawn was illegal and void. This contention is predicated upon the time the jury commission was appointed; when the jury list was opened; how and when the jurors were notified; and where the jury commissioners resided in the county.

These complaints were raised for the first time after the jury had returned its verdict and came too late. Cockrell v. State, 135 Tex.Cr.R. 218, 117 S.W.2d 1105; Campbell v. State, 122 Tex.Cr.R. 494, 56 S.W.2d 460.

The remaining claims of error have been considered and are overruled.

The judgment is...