Tipton v. State
| Decision Date | 27 June 1923 |
| Docket Number | (No. 7726.) |
| Citation | 253 S.W. 301 |
| Parties | TIPTON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Grayson County; Silas Hare, Judge.
John Tipton was convicted of aggravated assault, and he appeals. Reversed and remanded.
J. W. Hassell, of Dallas, and J. P. Cox, Head, Dillard, Smith, Maxey & Head, and Cecil H. Smith, all of Sherman, for appellant.
Freeman, McReynolds, Hay & Wolfe, of Sherman, and R. G. Storey, Asst. Atty. Gen., for the State.
Upon an indictment charging an assault with intent to murder, appellant was convicted of an aggravated assault; punishment fixed at a fine of $1,000 and confinement in the county jail for a period of two years.
A detailed statement of the evidence is unnecessary. The injured party, Williams, the appellant and his brother, Lee Tipton, lived on neighboring farms. A private road upon the Tipton farm passed near the land occupied by Williams. Prior to the date of the present alleged assault, there had been a difficulty between the appellant and Williams; also a difficulty between appellant's brother, Lee Tipton, and Williams. There was evidence of threats on the part of Williams to take the life of Lee Tipton. There was also evidence that Williams carried arms. This was known to Lee Tipton and to the appellant, and, after learning of the threats, Lee Tipton was in the habit of taking with him a shotgun.
From the state's testimony, it appeared that Williams saw a Ford automobile in which the appellant and Lee Tipton were riding; that he saw a gun come up and felt himself shot and fell down. His assailant continued to shoot. He then got up and fied. Several other shots were fired, four of which took effect upon his body. He was unable to see who fired the shots.
Appellant's testimony, in substance, is this: His car was kept in a garage about 100 feet from the house at which he and his brother lived. His brother kept his gun in the house part of the time, and a part of the time in the garage. The morning was cold and the car was difficult to start. He was engaged some 15 minutes in cranking it as the engine was not working well. Appellant rode in the front seat and his brother in the back seat of the car. Appellant said that just as he reached a point even with Williams, though about 75 yards distant, Williams "hollered" at him, but his words were not understood. As Williams put his right hand in his pocket, the gun was fired by appellant's brother. Appellant said that he had no knowledge of the presence of his brother's gun in the car. After the car was stopped, his brother got out and fired several other shots. The car stopped when the gun fired. After the shooting, the two brothers went in the car to the sheriff's office.
The refusal of the court to instruct the jury upon the law of circumstantial evidence is made a ground of complaint. The court's attention was called to the matter by an appropriate exception to the charge and by special charges.
Appellant also questions the sufficiency of the evidence. In our opinion, the evidence is...
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...them equivalent to direct testimony, a charge on circumstantial evidence is unnecessary.' " Id., at 641. See also Tipton v. State, 95 Tex.Cr.R. 205, 253 S.W. 301 (1923). The rule in Anderson was followed in Burleson v. State, supra, a robbery case. In that case the defendant and one Jordan ......
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