Walker v. State, 23496.

• Decision Date: 27 November 1946
• Docket Number: No. 23496.,23496.
• Court: Texas Court of Criminal Appeals
• Parties: WALKER v. STATE.

201 S.W.2d 823

WALKER v. STATE.

No. 23496.

Court of Criminal Appeals of Texas.

November 27, 1946.

Rehearing Granted January 29, 1947.

Rehearing Denied May 7, 1947.

Commissioners' Decision.

Appeal from District Court, Wichita County; Temple Shell, Judge.

James Walker was convicted of assault with intent to murder, and he appeals.

Affirmed.

Walter Nelson, Jr., Alan B. Haley, and McDonald & Anderson, all of Wichita Falls, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is an assault with intent to murder. The punishment assessed is confinement in the State penitentiary for a term of two years.

Appellant's first contention is that the evidence is insufficient to sustain his conviction of an assault with intent to murder, because there is not any evidence to show that, at the time of the stabbing, he entertained the specific intent to kill. With this contention, we are unable to agree.

The record reflects that Arthur Bland, the injured party, was employed by the Ben E. Keith Company at Wichita Falls as a shipping clerk. The company was engaged in the wholesale sale of fresh fruits, etc. On the night of January 18, 1946, while loading trucks which were to distribute the fruits, vegetables, etc., on the next morning, Bland saw appellant—as he walked along the loading dock—steal an orange or two from a broken crate. He called to appellant but appellant kept on going. Bland then threw a 2×4 scantling about three feet long in the back of a pickup truck, overtook appellant, and accused him of stealing oranges from the Keith Company. Appellant denied having stolen the oranges. This led to some heated argument, in which appellant used some very profane and insulting language. Bland picked up the scantling and appellant advanced before him (Bland) with an open pocket knife. Bland struck appellant and, in so doing slipped and fell to the ground; when he did so, appellant got on top of him and stabbed him in the breast. Bland was then taken to Wichita General Hospital, where he received medical attention. One of the wounds inflicted on Bland to the left of the middle line of the chest cavity punctured an artery leading to the heart. Two and one-half quarts of blood were drawn from the pleural cavity. Blood plasma was also administered to him on three different occasions. He was placed under an oxygen tent, because his lungs were weak and he could not get sufficient oxygen from the natural source. The injured party was confined at the hospital for three weeks, during which time he received the best medical attention obtainable. The knife used by appellant had a blade three and a half inches long.

The question of intent of the party offending is ordinarily a question of fact to be determined from his words, acts, and conduct in connection with the weapon or instrument used in the infliction of the injury, together with the character and extent of the wounds.

The jury, who are to determine the intent of the party charged with an offense, have the right to consider the instrument or means used, the seriousness of the injury inflicted, and the result thereof, in arriving at their conclusion of his intent. In the instant case, the jury saw the knife with which the wounds were inflicted; they heard the witness describe the wounds, the treatment that was administered by the attending physician, and the length of time that he was required to remain at the hospital. These were facts from which the jury could determine the intent of appellant. This court would not be justified in holding as a matter of law that the evidence is insufficient to sustain their conclusion on the subject.

By Bill of Exception No. 1, appellant complains of the action of the court in overruling his motion for a new trial based on alleged newly discovered evidence. The newly discovered evidence is set forth in the affidavit of the absent witness, S. Q. Chatman.

The affidavit of Jessie E. Matthews, which was introduced by the State on the hearing of the motion, is to the effect that he and Chatman were working for Ben E. Keith Company on the night in question; that a few days prior to the day of the trial, he, Matthews, talked to Mr. Nelson, one of appellant's attorneys, and told him that Chatman worked for the Ben E. Keith Company on the night in question; that when he started in the direction Bland had driven, Chatman followed him and was only a short distance behind.

It will thus be noted that appellant did not exercise proper diligence to ascertain what the witness knew or what he would testify to until after the trial. Under the facts disclosed by the record, no error is reflected by the bill. See Branch's Ann. P.C., Sec. 192; Edwards v. State, 75 Tex. Cr.R. 647, 172 S.W. 227, and cases there cited. Moreover, the alleged newly discovered evidence would have been but cumulative of the testimony of appellant's witnesses who testified on the trial of the case. Consequently, no such error is shown as would call for a reversal of the case. See Cooper v. State, 103 Tex.Cr.R. 226, 280 S.W. 597; Turner v. State, 115 Tex.Cr.R. 609, 28 S.W.2d 171.

Appellant in due time objected to paragraph 16 of the court's charge, wherein he instructed the jury "that if you believe from the evidence beyond a reasonable doubt that the defendant began the difficulty by first drawing his knife or attempting to draw it with an apparent hostile intent before any hostile movement or hostile words by Arthur Bland, or others, the defendant could not be justified on the grounds of self-defense, since in such case Bland would have had the right to resort to violence to protect himself, even though the defendant might have reasonably believed at the time he stabbed Bland that his own life was in danger." This paragraph immediately followed the court's charge on the law of self-defense. Appellant's objection thereto was that it was a limitation on his right of self-defense; that there was not any evidence showing that he provoked the difficulty. We think there is merit in his contention.

In the case of Trevino v. State, 83 Tex. Cr.R. 562(566), 204 S.W. 996, this court said, in substance, that it must be borne in mind that provoking a difficulty is always in direct conflict with justifiable homicide, and is not permissible unless the accused by his acts, conduct, or words produced the difficulty. When perfect self-defense is relied upon by the accused, his acts, conduct, and words must precede and lead to the difficulty. If the difficulty does not so begin, provoking a difficulty is not a part of the case, and a charge limiting the right of perfect self-defense would constitute error.

Under the facts as here disclosed, we have reached the conclusion that the issue of provoking the difficulty is not raised by the evidence and the charge on the subject should not have been given. See Jones v. State, 118 Tex.Cr.R. 458, 39 S.W.2d 76; Johnson v. State, 67 Tex.Cr.R. 441, 149 S.W. 165. The facts merely raised the issue as to who began the difficulty. Under such state of facts the issue of provoking the difficulty is not raised. See Branch's P.C., page 1095, Sec. 1955 and cases there cited. See also Howle v. State, 119 Tex. Cr.R. 17, 43 S.W.2d 594.

There are other questions raised which we do not deem necessary to discuss, in view of the disposition we are making of this case, as they may not arise upon another trial.

For the error herein pointed out, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On State's Motion for Rehearing.

GRAVES, Judge.

This cause was heretofore reversed and remanded because of the fact that the trial court presumptively erred in charging on a provocation of the difficulty, thus depriving appellant of his perfect right of self-defense. The State has filed a motion for a rehearing herein, and cites us to many cases that seem to be in point, and which evidence the fact that our original opinion may have been in error.

A State's witness, who was the injured party, testified that appellant, together with others, passed by a landing dock where fruit was stored for shipment, some being in open boxes; that he saw appellant reach into an orange box and take an orange therefrom that belonged to the Keith Company; that he followed appellant and accosted him, and they had the following conversation:

"I said, `Sonny Boy, where did you get the fruit'? and he said, `I got it over in colored town and I paid for it, too.' I said, `Oh, no, you didn't; I seen you take it off the front dock at Ben E. Keith.' He run his hand in his pocket, and he said, `You're a God damn lying son of a bitch,' and he started at me with his knife open and his hand posed about like that (indicating)," etc.

In the case of Ponce v. State, 186 S.W. 2d 270, we held that language of a similar nature was sufficient upon which to predicate a charge of provoking a difficulty.

In the case of Flewellen v. State, 83 Tex. Cr.R. 568, 204 S.W. 657, 659, it was held that a statement to the deceased and others of "Run, you sons of bitches," was sufficient grounds upon which to predicate such a charge. See authorities cited in the Ponce case, supra, many of them being based upon the use of words similar to the quoted words of appellant in the instant case, and this court held the same to be sufficient upon which to base such a charge. See Joyce v. State, 90 Tex.Cr.R. 265, 234 S.W. 895, where language similar to that here present was used. See also McFarland v. State, Tex.Cr.App., 196 S.W.2d 829. True it is that appellant denied the application of this epithet to Mr. Bland and denied the above quoted statements. However, we held in the case of Crowley v. State, 117 Tex.Cr.R. 372, 35 S.W.2d 437, 440, as follows:

"In determining whether there be evidence calling for a charge...