Scott v. State

• Decision Date: 22 June 1904
• Citation: 81 S.W. 950
• Parties: SCOTT v. STATE.
• Court: Texas Court of Criminal Appeals

81 S.W. 950

SCOTT v. STATE.

Court of Criminal Appeals of Texas.

June 22, 1904.

Appeal from District Court, Nacogdoches County; Tom C. Davis, Judge.

Cal Scott was convicted of an assault with intent to murder, and he appeals. Reversed.

Brewer & Lewis and D. M. Short & Sons, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at three years' confinement in the penitentiary; hence this appeal.

The indictment charges that the assault with intent to murder was committed by appellant in and upon Isom Chandler and in and upon John Chandler. Was the indictment duplicitous? Under the authorities it was not. Rucker v. State, 7 Tex. App. 547; Nite v. State (Tex. Cr. App.) 54 S. W. 763; Bishop, Cr. Law, vol. 1, § 437; Id. vol. 2, § 60. As far as we are advised, there is but one case which holds that an indictment which charges a homicide of two or more persons by the same act or volition to be bad as being duplicitous, to wit, People v. Allibez, 49 Cal. 452. That was a case in which appellant was charged with poisoning three people. However, it does not appear that the poison was administered by the same act or volition and the case appears to have been disposed of on the California statute, which requires that the indictment contain but one offense.

It is further contended that, while an assault with intent to murder can be charged to have been committed on two persons, this must be by the same act; and when it appears from the proof that it was different acts, though in the same transaction, there is such a variance as will defeat the prosecution. In support of this contention, appellant cites us to a number of authorities, among others Hurst v. State, 86 Ala. 604, 6 South. 120, 11 Am. St. Rep. 79; Gunter v. State, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17; State v. Emery, 68 Vt. 109, 34 Atl. 432, 54 Am. St. Rep. 878. We have examined said cases, and they do not, in our opinion, support appellant's contention. They do support the proposition that, where a defendant has been convicted or acquitted, he cannot again be put in jeopardy for the same act or volition. But here there is no question of jeopardy. Of course, if proof had shown that by the same shot appellant had wounded both John and Isom Chandler, or had by the same act attempted to shoot both, there would be no question of variance. But it does not so appear. The facts show an indiscriminate firing on both sides, and the evidence is rather pointed on the part of the state that appellant fired the first shot at John Chandler, whereas appellant's proof, on the contrary, shows that John Chandler fired the first shot at appellant, after which the firing became indiscriminate on the part of Cox and his companions on the one side, and the Chandlers on the other side. On this state of case the court instructed the jury to the effect that, if they believed appellant fired the first shot at either John Chandler or Isom Chandler, or at both, to convict him. This appellant claims was error, because he contends that the averment that both were shot at is essentially descriptive matter in the indictment, and must be proved as laid. In our opinion this contention is not correct, no more than it would be correct to say that, because the pleader in a case of cattle theft had charged the theft of two or more head of cattle, and had failed to make proof of the theft of all the cattle charged, there was a fatal variance. An assault on one person or killing of one person is a complete offense, and any essential description as to any person alleged to have been assaulted or killed must be proved as laid; but it by no means follows that because an assault is alleged to have been committed on two persons, or two person are alleged to have been slain, that therefore, before a conviction could be had, both assaults or both homicides must be proven as alleged. The doctrine contended for by appellant was announced in State v. McClintic, 8 Iowa, 203. But, according to Mr. Bishop, this is not the correct view. He says: "In reason, an assault on A. and B. is an assault both on A. and likewise on B.; and, when it is proved as to one, a complete offense appears equally in the evidence and in the allegation." Bishop, Cr. Pro. vol. 2, § 60; Id. vol. 1, § 437. This doctrine is illustrated in Com. v. O'Brien, 107 Mass. 208. There it was said, "It is enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified, although he is not shown to have been guilty of all that is charged against him." This, in our opinion, is in accordance with sound legal principle. The court, therefore, did not err in instructing the jury as was done. However, when it was developed on the proof that appellant did not commit the assault on the two parties named by the same act, but committed distinct and separate assaults on said parties, if appellant had made a timely motion requiring the state to elect for which assault it would prosecute, the court ought to have required such election. But that question was not made here.

Appellant excepted to the action of the court admitting the testimony of Mrs. Bell Chandler to the effect that, during the progress of the difficulty, she started out the back door and through the cornfield after the doctor, and that appellant and the parties with him, to wit, Cox, Byers, and Brown shot at her, and she returned to the house; that there was a lull in the firing, and she went out on the gallery and sat down. Zeke Walker came up and was talking to her, and one of the Cox party shot her in the leg. Appellant's objection to this testimony was because it was some time after the assault on John Chandler and Isom Chandler had ceased; that the firing had stopped, and she had gone...