Streets v. State, 23127.

• Decision Date: 28 June 1945
• Docket Number: No. 23127.,23127.
• Citation: 188 S.W.2d 582
• Parties: STREETS v. STATE.
• Court: Texas Court of Criminal Appeals

188 S.W.2d 582

STREETS v. STATE.

No. 23127.

Court of Criminal Appeals of Texas.

June 28, 1945.

Commissioners' Decision.

Appeal from District Court, Mitchell County; A.S. Mauzey, Judge.

John L. Streets was convicted of assault with intent to murder without malice and he appeals.

Reversed and remanded.

Z.D. Allen, of Wichita Falls, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Assault with intent to murder without malice is the offense; the punishment, two years in the penitentiary.

According to the State's theory, B.W. Whitaker and his sister, Mrs. Sides, made an assault upon Dr. Johnson. Appellant joined in the assault and, while cursing and threatening to kill, pointed a pistol at close range and snapped it at Dr. Johnson. Interference of bystanders prevented appellant from further pursuing his efforts to carry out the threat. Such facts are shown by the testimony of Dr. Johnson and three other witnesses. However, Dr. Johnson is the only witness to testify that the pistol snapped. The other witnesses saw him point the pistol and heard the threat but did not hear it snap. The pistol was recovered and the "top shell" showed to have been snapped. The pistol was completely loaded.

Appellant, testifying as a witness in his own behalf, denied having made the assault, as alleged, or having in any manner participated therein. He said that, at the time, he was seated in and near an automobile parked a short distance away and B.W. Whitaker, Jr., fifteen years of age, was with him. He was corroborated in his defense that he did not make the assault, by the testimony of Mrs. Sides.

It is insisted that the facts are insufficient to support the conviction, because of a lack of intent to kill. In support of this contention, appellant takes the position that, according to the State's testimony — even though there was some interference by the bystanders — such was not sufficient to prevent him from attempting to again fire the pistol after it had snapped and that he had ample and sufficient time and opportunity, before such interference, to have fired the pistol and killed Dr. Johnson after it had snapped, had he desired to do so.

In the case of Duncan v. State, 55 Tex.Cr.R. 168, 115 S.W. 837, the rule is announced that it is not conclusive that an assault was not with intent to murder because it was upon a rash and inconsiderate impulse and the assailant did not follow up his victim, though there was nothing to prevent it. Such rule is deemed applicable here.

Appellant also insists that, if the State's testimony be accepted that he snapped the pistol, such fact shows that he could not by the use made of the pistol have committed a murder and therefore he had neither the means nor the ability to commit murder.

The fact that the pistol failed to fire might have prevented appellant from carrying into execution his intent to kill but proof of such fact, alone, could not be said to show a lack of intent to kill or that the pistol was incapable of being fired or that appellant knew that it would not fire at the time of the assault. According to the State's witnesses, appellant was doing what he could to kill, with that specific intent, when he pulled the trigger of a loaded pistol.

The facts are deemed sufficient to support the conviction.

Appellant filed a first application or motion for continuance on account of the absence of certain witnesses, among which...