Scott v. State

• Decision Date: 16 November 1910
• Court: Texas Court of Criminal Appeals
• Parties: SCOTT v. STATE.

131 S.W. 1072

SCOTT v. STATE.

Court of Criminal Appeals of Texas.

November 16, 1910.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Lee Scott was convicted of assault with intent to murder, and he appeals. Reversed and remanded.

Kearby & Kearby, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

The appeal in this case is prosecuted from a conviction had in the district court of Comanche county on May 2d of this year, adjudging appellant guilty of assault with intent to murder, and assessing his punishment at two years' confinement in the penitentiary.

The facts of the case briefly show that Will Smith, the assaulted party, was a young lad about 16 years old at the date of the difficulty. Pearl Scott, brother of appellant, who figured in the transaction, was a little older; whereas appellant was a man about grown. The difficulty occurred at a dance, which has proven a frequent occasion of broils and quarrels; and it came up from a trifling remark addressed by Smith to Pearl Scott with reference to a cigarette. At the first words of difference between Smith and Pearl Scott, according to the testimony of Smith, appellant walked up and said to him "If you want anything, get on me," when he said, "I don't want to have any trouble," and walked off from him. He first walked off about ten feet, and then about eight feet farther, and then about two steps, and after he had made the last steps he picked up a post auger, which he had in his right hand, and was standing leaning back on it, and had it touching his hip, when Lee Scott walked up, caught hold of the post auger, and both of them pulled back on it, when he (Smith) went to jerk it, and it fell back over on Pearl Scott's head. He says that appellant commenced cutting him while he had the post auger; that he never hit appellant at all, and never struck at him; that when appellant first came up he said to him, "Come out here," when he replied, "I don't want to have any trouble, but if you have to fight I will try you." It seems from the testimony of the witnesses that the striking of Pearl Scott by Smith was an accident, and that he so stated at the time. Smith was very severely stabbed, but fortunately recovered, though he says the wounds still pain him. Smith also testified that the knife blade was about 3½ inches long. It is also disclosed by the record that there had been no unfriendliness between the parties up to this occasion. Smith says he was not drinking and had not seen appellant drinking any. This is the substance, in a general way, of the state's case as to how the difficulty arose, and if believed would have shown an assault on Smith without any justification or excuse.

Appellant and some of his witnesses gave a rather different account of the transaction. He says: That while the young people were in the house, where they had been dancing, Smith said to him, "Why didn't you let me know about this party, and I would have brought some girls up here," when he replied, "I thought everybody knew it," or something like that, and that his brother spoke up and said, "Are you the man that asked me for the snipe," and he said that he was, when he (appellant) said, "Will, here is a cigarette," and "I gave him a full sack of tobacco, which I never got back." That Smith then said to Pearl, "I don't want your damn old snipe," when Pearl replied, "You couldn't get it now, if you wanted it." Smith replied, "If I wanted it, I would take it," when appellant replied, "Smith, you couldn't take nothing," when Smith said, "What do you know about it?" and "I told him that I might know a good deal about it. He told me to wait until he got that cigarette rolled, and he would show me." That all the parties walked out of the house, when Smith came up to him and said, "Lee, I don't want to have any trouble," to which he replied, "All right, we will just drop it right here," when Smith said to him, "Though, if you want anything, I will back what I say," to...