Upchurch v. State

• Decision Date: 03 March 1897
• Citation: 39 S.W. 371
• Parties: UPCHURCH v. STATE.
• Court: Texas Court of Criminal Appeals

39 S.W. 371

UPCHURCH v. STATE.

Court of Criminal Appeals of Texas.

March 3, 1897.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

G. R. Upchurch was convicted of an assault with intent to murder, and appeals. Affirmed.

Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of an assault with intent to murder, and given two years in the penitentiary; hence this appeal.

1. There are no bills of exception in the record. It is contended by appellant that the court erred in submitting a charge to the jury in reference to the law in regard to drunkenness. This charge is favorable to the defendant. It is unquestioned that he was drinking, but the testimony leaves it in doubt as to the exact stage of his intoxication. The witness Burgess testified that W. A. Upchurch, a cousin of the defendant, was very drunk, but that the "defendant was not so full." Under this state of case, we believe the court was justified in giving the charge in relation to drunkenness, and that it was favorable to the defendant.

2. It is further contended that the court erred in not charging the law of circumstantial evidence. This is not a case of circumstantial evidence. The evidence is pointedly positive that the defendant inflicted several wounds upon Burgess, the assaulted party. He testified directly to it, and the defendant himself testified that he inflicted two of the wounds. We are unable to see how a charge on circumstantial evidence was applicable to or required by the facts of this case.

3. It is also contended that the evidence is not sufficient to support the verdict and judgment. We do not agree with this contention. If the state's testimony be true, it was an unprovoked assault by appellant upon the witness Burgess, while he was doing his utmost to escape. Burgess was cut as many as five times, most of the stabs being inflicted from the rear while he was getting on his horse in order to make his said escape. There are other circumstances in the case showing the malice and wicked intent of the party making the assault. In the inception of the difficulty appellant contends that he acted in self-defense. He states that Burgess, the assaulted party, slapped his hat from his head, and then threw his hand behind him. The law applicable to this state of case was sufficiently given by the court in its charge. The jury were justified in discrediting this testimony. Under all the facts of this case, it is hardly possible that any jury would...