Rosborough v. State

• Decision Date: 25 June 1886
• Citation: 1 S.W. 459
• Parties: ROSBOROUGH v. STATE.
• Court: Texas Court of Appeals

1 S.W. 459

ROSBOROUGH v. STATE.

Court of Appeals of Texas.

June 25, 1886.

Appeal from Harrison county.

HURT, J.

This is a conviction for assault with intent to murder.

If the testimony of the assaulted party, Young, is a true narrative of the facts, this is what occurred: He, Young, met defendant in the road, and asked him for some money defendant owed him. Defendant replied that he did not want Young to come "bulldozing" him about money; that he was mad anyhow, and if Young fooled with him he would pick up something and split his brains out. Young drove his wagon down the road to the house of one Williams, defendant following, and he and witness were quarreling. Witness got out of the wagon to see some one in the house, and just as he reached the gate some one told him to "look out;" that defendant was going to strike him with an axe. He caught the blow on his arm, and defendant struck two more blows, striking him on the shoulders and back. The testimony further sufficiently showed the axe, as used, to be a deadly weapon. The witness did not in any way attempt to strike the defendant, but tried only to ward off the blows.

Fannie Young, daughter of the witness Young, substantially corroborated the testimony of her father. She was the one who called out to witness that defendant was going to strike.

The testimony of the state's witness Tramwell agrees with that of Young up to the time Young got out of the wagon. From that point on it is, in substance, as follows: "When Young got out of the wagon, he had a whippole in his hand, about six feet long, and ¾ of an inch thick in diameter at the larger end. As he started into Williams' house, he passed defendant, and then turned round facing him, with the pole drawn up, the little end in his hand, and said to defendant, "You fool with me this morning, and I will be at you to death." Defendant then grabbed the axe, and in bringing it up struck Young on the arm. He struck at Young three times, but hit him only once. The evidence of this witness seems to have been matter of surprise to the prosecution, and, having laid a proper predicate, another witness was called, who said that in an interview between the district attorney and Tramwell, just before the trial, the latter stated the facts in harmony with Young's evidence. This was the state's case.

Rosborough, a brother of the defendant, and one David Simon, for the defense, corroborated the narrative of Tramwell. The former also testified that, a day or so before the difficulty, Young told him that defendant was owing him, and that he must pay, or the next time he saw him he would whip or kill him. All of the witnesses agree that Young and defendant were quarreling as they came down the road to Williams' house.

Now, here we find an evident conflict in the evidence; and, in view of this conflict, the defense, in cross-examination, asked the assaulted party: "Are you not unfriendly to the defendant?" to which he replied that he was not. Afterwards the defense offered to prove that defendant had been active in procuring an indictment for theft of hogs to be presented against Young; that he was a material witness for the state in the case; and that he was active in getting evidence for the state. The defense also offered in evidence the indictment against Young, then pending in the trial court. On objection, this evidence was excluded;...