Steward v. State, 16924.

• Decision Date: 10 October 1934
• Docket Number: No. 16924.,16924.
• Parties: STEWARD v. STATE.
• Court: Texas Court of Criminal Appeals

Page 113

75 S.W.2d 113

STEWARD v. STATE.

No. 16924.

Court of Criminal Appeals of Texas.

October 10, 1934.

Appeal from District Court, McCulloch County; E. J. Miller, Judge.

Andrew Steward was convicted of assault with intent to murder, and he appeals.

Affirmed.

Newman & McCollum, of Brady, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for assault with intent to murder; punishment being three years' confinement in the penitentiary.

The assaulted party was Minnie Steward, wife of appellant. She was the only witness used upon the trial, appellant not testifying nor offering any witness. Mrs. Steward's testimony makes the following case for the state: The assault occurred on Tuesday morning. On Monday before, appellant had gone to town, and when he came back insisted that his wife go and collect $1.60 which appellant claimed was due him from some one. So far as we are able to determine from the record, her refusal to do so was the only cause of appellant's subsequent conduct. When she declined to go, he tore all her clothes off with an ice pick, and got a shotgun and threatened to shoot her with it. Late that afternoon appellant, his wife, and their two children went to the home of her father. About dark the father and brother, at appellant's request, took him home; prosecutrix and the children remaining at her father's. About 11 o'clock that night appellant returned to his father-in-law's house and insisted on his wife going home with him. He made threats at this time that he would blow her brains all over the town, making a demonstration as though to draw a gun. His father-in-law then presented a pistol at him, telling appellant he could not harm his wife. After appellant seemed to have changed his attitude, his father-in-law laid the pistol aside. His wife finally did go home with appellant, but left the children at her father's. She said she was afraid to go by herself, and her brother, who was about nineteen years old, went with them. About 5:30 the next morning she returned with her brother to her father's house to get the children. She returned home about 10 o'clock, her brother accompanying her, but she did not take the children with her. When they arrived at home appellant was sitting on the doorstep; he refused to let his wife enter the house, but pushed her away, ran in the house, and secured a single-barrel shotgun, whereupon appellant's wife ran one way and her brother another. When she was about twenty steps away appellant fired at her, some seventy or eighty shot striking her, most of them in the shoulders, but some in the side of the head and some few in other portions of the body.

In his instructions to the jury the court defined "aggravated assault," "murder," and "malice aforethought," and instructed the jury if they found beyond a reasonable doubt that with malice aforethought and with intent to kill Minnie Steward appellant assaulted her they would find him guilty and assess his punishment at confinement in the penitentiary for not less than two nor more than fifteen years. The jury was further instructed that appellant could not be convicted of assault with intent to murder unless they should find from the evidence beyond a reasonable doubt that he shot Minnie Steward with the specific intent to kill her, and that if they had a reasonable doubt upon this point they should find him guilty of aggravated assault. The court did not charge upon assault to murder without malice. No exception was reserved to the court's charge for the failure to give such instruction and no special charge on the subject was requested. In his motion for new trial appellant insisted that the failure to charge on assault to murder without malice was fundamental error, and that even in the absence of an exception to the charge for the omission of such instruction appellant should have been granted a new trial, and that having been refused, this court should reverse and remand the cause. In support of his contention appellant cites Villa v. State, 122 Tex. Cr. R. 142, 53 S.W.(2d) 1023; Phillips v. State, 122 Tex. Cr. R. 568, 57 S.W.(2d) 109.

In passing upon the motion for rehearing in the latter case, we attempted to make it clear that we did not intend by what was said in Villa's Case, supra, to change the rule announced in Scott v. State, 114 Tex. Cr. R. 631, 26 S.W.(2d) 263, Arcos v. State, 120 Tex. Cr. R. 315, 29 S.W.(2d) 395, Johnson v. State, 120 Tex. Cr. R. 368, 48 S.W.(2d) 274, and Lopez v. State, 120 Tex....