Turner v. State

• Decision Date: 12 April 1916
• Docket Number: (No. 4036.)
• Citation: 186 S.W. 322
• Parties: TURNER v. STATE.
• Court: Texas Court of Criminal Appeals

186 S.W. 322

TURNER v. STATE.

(No. 4036.)

Court of Criminal Appeals of Texas.

April 12, 1916.

On Motion for Rehearing, May 3, 1916.

Rehearing Denied May 31, 1916.

Appeal from District Court, Colorado County; M. Kennon, Judge.

Sanford Turner was convicted of assault to murder, and appeals. Affirmed.

E. T. Simmang, of Giddings, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at ten years' confinement in the state penitentiary.

The only bills of exception in the record complain of the action of the court in failing to give several special charges requested by appellant. There is with the record what purports to be a statement of the evidence had on the trial of the case, but it does not show to have ever been presented to the trial judge, and it is not approved nor signed by him. To be of any validity whatever, the statement of facts must be approved and signed by the trial judge. Lawrence v. State, 7 Tex. App. 192; Bennett v. State, 16 Tex. App. 236; Johnson v. State, 29 Tex. 492; Hurst v. State, 39 Tex. Cr. R. 196, 45 S. W. 573; and cases cited under section 1169, White's Ann. C. C. P. With no statement of the evidence we are authorized to consider, we cannot pass upon whether the special charges should have been given; for, in the absence of a statement of facts, if the charge is applicable to any state of facts that might be proven under the indictment, this court must presume the trial court submitted to the jury the law, and all the law, applicable to the testimony. Wright v. State, 37 Tex. Cr. R. 146, 38 S. W. 1004, and cases cited under section 1170, White's Ann. C. C. P.

The judgment is affirmed.

On Motion for Rehearing.

On a former day of this term this case was affirmed, without passing on the merits. Since that time the clerk has sent to this court a statement of facts, approved by the trial judge, and states it was by mistake on his part this statement did not accompany the record originally; and under the circumstances appellant is entitled to have it considered.

The evidence would show without dispute that a complaint was filed in the county court by Wash Austin charging appellant with tearing down Austin's fence. A warrant was issued and placed in the hands of Constable John Wegenhoft, who got A. M. Reed to go with him, and they went to appellant's place to arrest him on this warrant. Arriving at appellant's home, they inquired of his sister for him, and were told that appellant was in the field at work, giving directions. From this point there is a sharp conflict in the testimony. The state's case, as sworn to by Wegenhoft and Reed, is that, when they came in sight and near appellant, he dropped his plow lines and made for a Winchester rifle that was leaning against a tree; that Wegenhoft called to him: "Sanford, don't pick up that gun." Appellant paid no attention to the remark, but grabbed his gun and shot at Wegenhoft. The constable and Mr. Reed say they dodged in the bushes, when appellant shot again; that they then returned the shots. Mr. Reed and appellant both received wounds on this occasion.

Appellant's contention is, and in it he is supported by his sister, Annie Turner, that when he saw Wegenhoft and Reed approaching he did not recognize them, and when they got near to him, and before he turned his plow loose, one of them threw a gun in shooting position, and said, "Oh, yes, old negro, we have got you...