Thomas v. State

• Decision Date: 10 February 1909
• Citation: 116 S.W. 600
• Parties: THOMAS v. STATE.
• Court: Texas Court of Criminal Appeals

116 S.W. 600

THOMAS v. STATE.

Court of Criminal Appeals of Texas.

February 10, 1909.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

John Thomas was convicted of aggravated assault, on a charge of assault with intent to murder, and appeals. Affirmed.

Odell & Johnson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Johnson county for the offense of assault with intent to murder one W. W. Dabbs. On trial he was convicted of aggravated assault, and his punishment assessed at a fine of $25 and six months' confinement in the county jail.

The evidence in brief shows that on the night of the 19th of April, 1906, on East Henderson street, in the city of Cleburne, the witness Dabbs, with one Joe Hays, was near where appellant, as they claimed, was cursing and abusing a small white boy, and that they intervened and protested against such abuse, and after some sharp words appellant left them, going in a southeasterly direction, and after they had proceeded a few feet on their journey, going east, Dabbs, while walking along, making no demonstration and doing nothing, was struck by some missile thrown by appellant and seriously hurt; that just before the missile was thrown, appellant stated, calling out to them, "I mean it for all of you." Dabbs testified that he was struck with something and knocked unconscious; that he was unconscious for a couple or three hours; that he was struck on the point of the chin, and had two teeth knocked out and his jawbone fractured; that he was not exactly in bed for any definite time, but was not able to do any work for a couple of months. The attending physician did not think the wounds so serious as the testimony of Dabbs would seem to indicate. He testified that appellant had a wound on his chin, which was bleeding freely, which must have been some 2 or 2½ inches long, and was a rather jagged or rough wound, and he had two teeth broken off; that he was at the time he got to him a little bit dazed, but he recovered from that and with the assistance of others went to his (witness') office; that he found no bones broken except these teeth which were broken; that he saw Dabbs the next day, and after that for perhaps two weeks, until the wound was healed. When the wound was healed he was as well as he ever was so far as this was concerned, excepting the scar, and, of course, his teeth were still out; that Dabbs complained of a headache for a few days after this, but only a few days, when he discharged him as a well and cured man. The evidence further discloses that, soon after striking Dabbs, appellant went to his home and told his mother about the incident, and then left the country and went to Omaha, Neb., where he remained about a year until he was recaptured and brought to Texas.

1. A number of questions are raised, by brief for appellant. Among other things, it is urged that there was no basis in the testimony for the court to submit to the jury the issue of aggravated assault, for the reason that under all the evidence the injuries of Dabbs were not of such seriousness or gravity as to justify the submission of this issue, on the ground on which it was based in the charge of the court, that the wound was such as to produce death or serious bodily injury. We cannot accede to this contention. We think a blow in the face which knocks a grown man down, renders him unconscious for two or three hours, fractures his jawbone and knocks out some of his teeth, is a serious injury, and under the testimony in this case asserting these facts to be true, the court was amply justified, and, indeed, required, to submit this issue.

2. Again, it is urged that the court erred in his charge to the jury in not instructing them what was meant by the words and term "serious bodily injury." Some of the decisions of this court have, in discussing the facts of particular cases, undertaken to state what is "serious bodily injury," as they have undertaken to discuss, define, and apply the meaning of other terms; but we have been cited to no case where the court has ever in a charge undertaken to define what is meant by this language. Our own opinion is that it should not be done in any case. The words are words of ordinary significance, and would, we think, be as well understood by any jury of ordinary intelligence as any language by which they might be defined by the court.

3. Again, it is urged that he court erred in his charge to the jury upon the issue of insanity. The evidence of appellant clearly raised the issue that he was an epileptic, that it was more or less hereditary in his family, and that he had been a sufferer from this form of disease for many years. There was no evidence pertinently raising the issue that he was so affected at the very time of the commission of the alleged offense, or for something like 10 days prior thereto; but there was sufficient evidence in the record of his affliction, and its effect generally upon his mental condition, as to raise the issue of insanity and to require the court to submit the same. Being required to submit it, of course, it was incumbent upon the court to submit it correctly, and to give all the law in charge to the jury touching this issue. This we think the court did. On this subject he instructed the jury as follows: "Among other defenses made in this case is that of insanity. You are charged that only a person with sound memory and discretion can be punishable for crime, and that no act done in a state of insanity can be held punishable as an offense. Every man is presumed to be sane until the contrary appears to the jury trying him. He is presumed to entertain, until this appears, a sufficient degree of reason to be responsible for his acts; and to establish a defense on the ground of insanity it must be clearly proved that at the time of committing the act the party accused was laboring under such defects of reason from...