Royal v. State, 24721
| Decision Date | 29 March 1950 |
| Docket Number | No. 24721,24721 |
| Citation | 154 Tex.Crim. 567,229 S.W.2d 808,228 S.W.2d 162 |
| Parties | ROYAL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Vincent Ferrell, Linden, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
The appeal is from a conviction for assault to murder, with a sentence of two years in the penitentiary.
Appellant is charged, in an ill advised indictment, with the offense of assault to murder two parties, Lois Roleigh and Lee Andrew Roleigh. Joining two injured parties in one indictment frequently leads to difficulties not necessarily involved if indictments are drawn according to the usual custom, and is responsible for presenting a question in this appeal which could easily have been eliminated by the pleadings in the case.
The appellant, a married man, and a negro woman Lois Royal had, for a period of ten years or more, associated in a turbulent manner, but nevertheless continuously, in what we understand to be an illicit relationship. They were second cousins. Appellant was much in love with Lois and was reluctant to discontinue their association. Lois, however, had married Lee Andrew Roleight contrary to the demands which appellant had made of her, and in spite of his threats to kill her if she did.
Prior to the shooting Lois had been away from home some two or three months. Appellant heard that she had returned to the community and sought to have an interview with her, sending her a threat by her nephew if she did not meet him. Upon receiving this threat, Lois went to the justice of peace at Hughes Springs and reported the matter, at the same time signing a complaint of some kind, the nature of which is immaterial. The constable invited Solomon to visit the justice of peace, which he did and paid a fine.
Solomon brooded over this to the extent that his wife inquired of his health and to know what he was troubled about. Finally, to get away from his wife to keep her from worrying, Solomon took his single barrel shotgun and went hunting. He went down into a winding bottom and, finally, to the house where Lois and her husband were staying. It was late in the afternoon and as he approached the house he saw the bride and groom emerging from it, carrying water buckets. He took it that they were going to the spring and that they had not seen him, so he retreated into weeds and thicket at the side of the path and, from this point, shot one time at the couple sprinkling both of them with small shot. The distance he was from them is immaterial because the jury passed on the controverted issue. The wounds inflicted were not serious.
Appellant testifying in his own behalf takes no issue with the facts herein above stated, much of which is summarized from his own testimony. He does say that he did not intend to kill them, that he decided he would go have a talk with them and ask them why they filed the charges against him and he did not know what it was for. When he saw them, he says,
The first question raised and discussed by appellant is the refusal of the court to charge that if they believed the defendant fired to frighten and not to kill the prosecuting witnesses that they should acquit him of assault to murder. Presumably, appellant wanted this given in an affirmative charge. We quote the following, on the subject, from the court's charge, which we believe to be sufficient under the facts of the case. 'If you believe from the evidence, that the defendant is guilty of an assault, but have a reasonable doubt as to whether such assault was with intent to murder, then you will acquit him of that offense and next consider whether he is guilty of an aggravated assault.'
The only evidence in the case to justify the foregoing charge is the quoted testimony of appellant himself. This is not an affirmative defense, but only a negative statement. It is sometimes very difficult to distinguish, under the holdings of our court, the difference between a negative defense and an affirmative defense requiring an affirmative charge. In the instant case, appellant testified to...
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Thompson v. State
...have acquitted him. The State relies upon Watts v. State, supra; Fuller v. State, 409 S.W.2d 866 (Tex.Cr.App.1966); Royal v. State, 154 Tex.Cr.R. 567, 228 S.W.2d 162 (1950); and Day v. State, 120 Tex.Cr.R. 17, 48 S.W.2d 266 The State is not on sound ground in relying on these cases. The opi......
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Smith v. State
...The mere denial by the appellant of an intent to kill, standing alone, is not sufficient to raise these issues. See Royal v. State, 154 Tex.Cr.R. 567, 228 S.W.2d 162. Ordinarily the failure to give a charge on aggravated assault or simple assault is not error where the appellant killed the ......
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Juarez v. State
...mounted a defensive theory based on trial strategy designed to negate only a specific element of the charged offense.27 For instance, in Royal v. State, we held that the appellant's testimony that he did not intend to kill the victim did not constitute an affirmative defense.28 We stated th......
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Hall v. State, 39115
...he is entitled to an affirmative submission of his theory.' We think the contention here is similar to that urged in Royal v. State, 154 Tex.Cr.R. 567, 228 S.W.2d 162, rehearing denied 229 S.W.2d 808. There, the offense was assault with intent to murder, and an affirmative charge was reques......