Simmons v. State

• Citation: 126 S.W. 1157
• Court: Texas Court of Criminal Appeals
• Decision Date: 30 March 1910
• Parties: SIMMONS v. STATE.

126 S.W. 1157

SIMMONS v. STATE.

Court of Criminal Appeals of Texas.

March 30, 1910.

Appeal from Rusk County Court; S. J. Hendrick, Judge.

Elias Simmons was convicted of aggravated assault, and appeals. Reversed and remanded.

John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was charged with aggravated assault, and the facts show that it was an assault upon his wife brought about by a family quarrel or disturbance.

1. When the case was called for trial, appellant filed an application for a continuance on account of the absence of Sam Franklin. His residence was alleged to be in Wood county, and he was a son-in-law of appellant and appellant's wife. That before the court met on the first Monday in September witness left Rusk county without appellant's knowledge, nor did he know where he had gone. That on the first day of the term of the county court he learned witness had moved to Wood county, and he asked for a postponement to a future day of the term and for a subpœna to issue to Wood county in order that he might obtain the presence of the witness, and have him testify before the jury. When the application was made, the court told appellant that he would not issue the subpœna for a few days, but would give appellant an opportunity to get the witness, and would cause it to issue in time; and on the same day, which was the 7th day of said month, the court set the case for Friday the 17th of the month, and told appellant's counsel that he would let the process be issued in time to get it served before the day for trial, and appellant, relying upon the statement of the court, did not think but what the court would order the process issued as he stated he would do, but at the time of filing this application the process had not been issued, and witness is not in attendance upon the court. He further states after the court had made the statement in regard to the absent witness in open court, appellant's counsel went around to the court and asked him if he would attend to the matter and not let the time pass without doing this. The court stated he would, as he was wanting to get the witness back here on a fine that he owed. By the absent witness appellant expected to prove that he was at the house of appellant and his wife on the night of the trouble, and that the prosecuting witness, appellant's wife, abused and cursed appellant, and without cause, and that she assaulted appellant, and began to strike him and fight defendant while he was sitting down and before he had done or said anything to the prosecuting witness to cause her to commit the assault; and he further expects to prove by the witness that defendant never struck his wife until after she had attacked him and was beating on him, and that then he only struck her to prevent her from striking him again, and this witness was the only party present except appellant and his wife; and that this witness will testify that appellant did not strike the prosecuting witness, as she stated, before she had struck appellant. In other words, he expected to prove by the absent witness a case of self-defense. The court qualifies the bill of exception as follows: "The witness Sam Franklin was an escaped county convict, and the sheriff of Rusk county had just informed me he thought he had Sam Franklin located in Wood county, Tex., and he had phoned for the officers to arrest him. When the defendant asked for a subpœna, I said, `Wait a day,' I thought we would get him. I did not tell him to not get out process, for him to only wait a day or two, and he would then have plenty time, as the case was set off 10 days ahead. I did not undertake or promise to get out process for defendant, but said I would grant him his process in due time, and he failed...