Welcome v. State, 41641

• Decision Date: 08 January 1969
• Docket Number: No. 41641,41641
• Parties: Gladys WELCOME, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 99

438 S.W.2d 99

Gladys WELCOME, Appellant, v. The STATE of Texas, Appellee.

No. 41641.

Court of Criminal Appeals of Texas.

Jan. 8, 1969.

Rehearing Denied March 26, 1969.

Wiggins & Wiggins, by Daylee Wiggins, Beaumont, for appellant.

W. C. Lindsey, Dist. Atty., Cimron Campbell, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is assault with intent to commit murder without malice, committed with a knife; the punishment, four years confinement in the Texas Department of Corrections. See Article 1160 Vernon's Ann.P.C. 1961.

The question presented by this appeal is whether a conviction under the double penalty provisions of Article 1160, V.A.P.C., 1961, for the offense of assault with intent to murder without malice is sustainable under an indictment alleging only the offense of assault with intent to murder with malice and which does not allege the manner and the means.

Omitting the formal parts, the indictment reads: 'that GLADYS WELCOME on or about the 2nd day of May One Thousand Nine Hundred and Sixty-six, and anterior to the presentment of this indictment in the County of Jefferson and State of Texas, did then and there unlawfully voluntarily, and with malice aforethought, make an assault in and upon Mary Penn, with the intent then and there to murder the said Mary Penn.'

The State's evidence reflects that the appellant entered the Ebony Bar in Beaumont, Texas on May 2, 1966, at approximately 7 p.m. She appeared to be angry and upset and shortly after entering the bar engaged a woman known as 'Flea' in conversation. Mary Penn, a patron in the bar and an acquaintance of the appellant, replied to one of appellant's remarks. Thereafter an argument ensued between the appellant and Mary Penn which soon concerned itself with which one of the two women wore the dirtiest underwear. As spectators looked on, both the appellant and Mary Penn hiked their dresses and showed their panties across the bar for all to see. Thereafter, the argument soon turned to who provided their support. It appears that the appellant stated 'Uncle Sam takes care of me' and Mary Penn replied, 'He doesn't take care of me.' Shortly thereafter the appellant picked up a chair and attempted to strike Mary Penn and a struggle occurred between them. The two women fell to the floor and then Mary Penn was pulled off the appellant. Thereupon appellant drew a Texas jackknife from her brassiere, opened it with her teeth and began flaying away at Mary Penn with great force. Appellant severely stabbed her victim three times before appellant was subdued by one King Thomas. Mary Penn suffered a wound three quarters of an inch wide and three inches deep in her left breast, a wound going through the cartilage of the lower ribs penetrating the abdomen and lacerating the liver, and a third wound one and a half inches wide and three inches deep in her right thigh. Mary Penn recovered from these wounds following surgery.

The court in its charge submitted to the jury the issues of assault with intent to commit murder with malice aforethought, assault with intent to commit murder without malice, and aggravated assault. The jury in their verdict found the appellant guilty of the offense of assault with intent to commit murder without malice.

The appellant requested the jury to determine her punishment and after a hearing, the court charged the jury on the issue of punishment in accordance with Article 1160, V.A.C.P., which states as follows:

'If any person shall assault another with intent to murder, he shall be confined in the penitentiary for not less than two (2) nor more than twenty-five (25) years, provided that if the jury finds that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three (3) years confinement in the penitentiary; and provided further that in cases where the jury finds such assault was committed without malice but was made with a Bowie knife or dagger as those terms are defined by law, or with any kind or type of a knife, or in disguise, or by laying in wait, or by shooting into a private residence, the penalty shall be doubled.' Acts 1961, 57th Leg., p. 706, ch. 331, § 1.

The jury was instructed to assess the penalty of not less than one nor more than three years confinement in the penitentiary unless they found beyond a reasonable doubt that appellant had made the assault with a knife. In such cases they were instructed that they should assess her punishment at confinement for any term of years not less than two nor more than six. To such charge the appellant made no objection nor any special requested charge.

After deliberation the jury returned the following verdict:

'We, the jury, having found the defendant guilty of the offense of assault with intent to murder without malice, and having found that the said offense was committed with a knife, assess the defendant's punishment at confinement in the Department of Corrections for a term of 4 years.'

It should be here observed that the finding of the jury that the appellant used a knife in committing the offense is supported by all the evidence including the appellant's admission of the same.

In appellant's first three grounds of error she contends that despite the absence of an objection or lack of a special requested charge that fundamental error was committed when the court charged the jury on double punishment where the indictment failed to allege the means used by the appellant in committing the offense and that judgment should not have been entered on the verdict.

Appellant recognizes that it is well established that an indictment for an assault with intent to murder need not allege the means used nor the manner of use of the means. Article 1160, V.A.P.C. n. 29. 4 Branch's Anno.P.C., 2nd Ed., Sec. 1799, p. 168; 29 Tex.Jur.2d, Homicide, Sec. 134, p. 160; Clark v. State, 162 Tex.Cr.R. 493, 286 S.W.2d 939; Thom v. State, 167 Tex.Cr.R. 258, 319 S.W.2d 313; Johnson v. State, Tex.Cr.App.; 384 S.W.2d 885. She further recognizes that a conviction for an assault with intent to commit murder without malice may be had upon an indictment charging the offense of assault with intent to commit murder with malice aforethought. It appears to be the appellant's contention, however, that the double penalty imposed in this case could not properly be assessed without an allegation in the indictment as to the manner and means used and that failure to put the appellant on notice by such allegation prevented the State from seeking the higher or double penalty for the offense for which the appellant was eventually found guilty.

The State concedes that appellant's position would be correct if the indictment had solely charged the offense of assault with intent to murder without malice, but contends the indictment in the case put the appellant on notice that she could receive a penalty as high as 25 years in the penitentiary, and in view of the failure to object to the court's charge, and the specific finding of the jury, no error is presented.

This appears to be a case of first impression, at least since the 1961 amendment to Article 1160, supra, limiting the former double penalty provision to a conviction for assault with intent to murder without malice, and authorizing such penalty when the assault is committed with any kind of knife.

Long prior to 1931 Article 1160, V.A.P.C., and its forerunners defined the offense of assault with intent to murder and prescribed a single penalty. Such statutes also provided that 'if the assault be made with a bowie-knife or dagger, or in disguise, or by laying in wait, or by shooting into a private residence the punishment shall be double.' O.C. 493; Acts 1871, p. 20; Acts 1903, p. 160.

In 1931 it was thought desirable or necessary to amend Article 1160, V.A.P.C., 1925, because of the change in our murder statute made in 1927 creating one offense with different punishments for murder with and without malice aforethought. Acts 1931, 42nd Leg., p. 95, ch. 61; Crowley v. State, 150 Tex.Cr.R. 114, 199 S.W.2d 526; See also 29 Tex.Jur.2d Homicide, Sec. 77, p. 83; 4 Branch's Anno.P.C.2d Ed., Sec. 2187, p. 534; Lopez v. State, 162 Tex.Cr.R. 454, 286 S.W.2d 424. Such 1931 amendment provided a penalty of not less than two nor more than fifteen years confinement for assault with intent to murder and a penalty of not less than one nor more than three years if the assault was committed without malice. The former double penalty provision was retained.

While prior to the 1931 amendment it was not necessary to allege in an indictment for assault with intent to murder that the assault was made with 'malice,' thereafter it was deemed necessary to allege that the assault was committed with malice, otherwise the accused stood charged with no other offense than assault to murder without malice and no greater punishment could be inflicted than for the latter offense. Crowley v. State, supra, and cases therein cited; 29 Tex.Jur.2d, Homicide, Sec. 133, p. 159. There can be little question but what after the 1931 amendment the double penalty provision was applicable, upon proper allegations, to both assault with intent to murder with and without malice, it having been previously held that the trial court was not authorized to submit the double punishment in absence of an allegation in the indictment that the assault was committed with a bowie knife, dagger, etc. 4 Branch's Anno.P.C., 2d Ed., Sec. 1807, p. 171; Garcia v. State, 19 Tex.App. 389; Swilley v. State, 114 Tex.Cr.R. 228, 25 S.W.2d 1098; Dunn v. State, 128 Tex.Cr.R. 229, 81 S.W.2d 87.

In 1961, as we have seen, Article 1160, supra, was again amended increasing the penalty for assault with intent to murder, retaining the former penalty if the assault was committed without malice, but limiting the double penalty provision to a conviction for assault with intent to murder without malice...