Vineyard v. State

• Decision Date: 08 November 1922
• Docket Number: (No. 6545.)
• Citation: 257 S.W. 548
• Parties: VINEYARD v. STATE.
• Court: Texas Court of Criminal Appeals

257 S.W. 548

VINEYARD v. STATE.

(No. 6545.)

Court of Criminal Appeals of Texas.

November 8, 1922.

Rehearing Denied January 23, 1924.

Appeal from District Court, Scurry County; R. C. Joiner, Judge.

J. L. Vineyard was convicted of assault to murder and he appeals. Affirmed.

C. S. Perkins, Jr., and Beall, Beall & Beall, all of Sweetwater, for appellant.

Stinson, Coombes & Brooks, of Abilene, and R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Appellant was charged by indictment with assault to murder upon Albert Bullock, the trial resulting in conviction with punishment assessed at four years' confinement in the penitentiary.

Bullock was superintendent of the public school, appellant being one of the trustees. Two of the latter's boys were attending school and were also acting as janitor of the building. Trouble arose between Bullock and one of the boys, resulting in complaint being made by Bullock to the trustees demanding the expulsion of the boy from school, with the statement on his part that if this was not done he would tender his resignation. Appellant made several propositions looking to the voluntary withdrawal from school of the boy under certain conditions, but these were not acceptable to Bullock, and the matter culminated in the expulsion of the boy. This occurred about two weeks before the closing of the school term. Appellant and Bullock saw one another frequently after this occurred, and Bullock spoke to him on one occasion, but appellant declined to speak, and thereafter they passed upon the street without any conversation occurring between them. The assault complained of occurred shortly after the beginning of the next school term. Both parties had been to the post office, but nothing had occurred between them at that time. Shortly thereafter Bullock came out of a drug store with a couple of friends, and as he passed off the sidewalk the state's testimony shows appellant stepped up behind him and cut him with a knife, saying, "G____d ____ you, I told you I would get you." The cut extended from the point of the cheek downward and backward to about the center of the back of the neck, being from one-quarter of an inch to one inch in depth, exposing the jugular vein and carotid artery and was seven or eight inches long, gaping open two inches after the wound was first inflicted. Appellant claimed that as Bullock came out of the drug store the latter looked at him, put his hand in his pocket, and that from the expression on his face and the movement he thought Bullock intended to draw a pistol, whereupon he cut him. He also testified that he had been told by one witness that Bullock was carrying a pistol for him. It is noticeable, however, that no process had been issued for the witness, and it developed from appellant's testimony that he knew this witness was gone at the time his evidence was given.

There was no error in permitting the physician to state that the wound on the neck of the injured party passed over the jugular vein and carotid artery, exposing them to view.

After appellant had testified that the reason he cut Bullock was because the latter looked at him as he came out of the drug store, and put his hand in his pocket, and that appellant thought Bullock was going to draw a pistol, Bullock was recalled and permitted over appellant's objection to deny specifically the acts and demonstration attributed to him. While some of the testimony was a repetition of his general statement in the former examination, we cannot regard it as of such harmful character as to demand a reversal. The state had a right to combat directly the defensive evidence of appellant, and show by the injured party that he did not do what appellant claimed.

After the court's charge was presented to counsel for appellant, they filed objections thereto, and the matters complained of were corrected and amplified by three special charges given at their request. Four other special charges were refused and complaint is based thereon. We have carefully examined the main charge, the three special charges given, and in connection therewith those which were refused. We believe the appellant's rights and defenses were fully protected in the charges given, and that no error occurred in the refusal of others. We realize that it would be more satisfactory to the bar for us to set out the charges, and give more in detail our reasons, and indeed this would be much more satisfactory to us, and when reversals are ordered we usually attempt to do so. But the press of work now on this court renders it impracticable to do so in every case.

Appellant complains that in paragraph 7 of the charge the court authorized a conviction without requiring the jury to find the assault to have been "unlawful." The charge required the jury to find beyond a reasonable doubt that defendant made the assault with a deadly weapon, with malice aforethought, with intent to kill, and not in self-defense. If it was made under such circumstances it was unlawful, and the omission of the word "unlawful" from the charge presents no error. Ponton v. State, 35 Tex. Cr. R. 597, 34 S. W. 950, does not hold to the contrary.

We find in the record four bills of exception to the argument of James P. Stinson, private prosecutor, and one to that of the district attorney. James P. Stinson, during his argument, used the following language, complained of in four bills of exception: "Those people who saw that assassination." No connection in which he used the words is shown but the objection seems to be to the word "assassination." Upon objection being made Stinson remarked, "I should have said attempted assassination." Again he said, "This man, with the hot blood of his victim dripping from his knife, standing there with his knife in his hand looking at his victim;" again, "You can kiss this defendant and send him back to cut somebody else's throat, or you can send him to the penitentiary;" again, "A citizen of your community, the superintendent of your school, assassinated and his throat cut." The district attorney said, "If this jury goes out and brings in a verdict of acquittal or not guilty in this case, I shall never hope hereafter to obtain a verdict of guilty before a jury in this county in any kind of a case." Objection was urged to all the language set out as "inflammatory, improper, and not warranted by the facts." The court declined to instruct the jury to disregard the same. Whether argument is proper or improper must necessarily depend upon the facts of the particular case. From the record before us we cannot say the argument complained of was unwarranted, or of such manifest harmful character as to demand a reversal. Howard v. State, 53 Tex. Cr. R. 378, 111 S. W. 1038; McAllister v. State, 56 Tex. Cr. R. 188, 120 S. W. 420.

We think the only safe rule to be that ...