Williams v. State

• Decision Date: 02 December 1891
• Citation: 17 S.W. 1071
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Appeals

17 S.W. 1071

WILLIAMS v. STATE.

Court of Appeals of Texas.

December 2, 1891.

Appeal from district court, Coleman County; W. J. WINGATE, Judge.

Indictment of R. E. Williams for assault with intent to murder. Verdict of guilty, and judgment thereon. Defendant appeals. Affirmed.

H. C. Randolph, J. P. Ledbetter, and J. C. Randolph, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

This is an appeal from a judgment of conviction for an assault with intent to murder. We do not propose to discuss all the many questions presented in the voluminous record before us, but will content ourselves with disposing of those only which, in our opinion, present error in themselves, or are liable to afford matter for discussion on another trial of this cause; and the questions which we do not discuss will be those which, in the view we take of them, do not present radical or material error. With regard to questions as to evidence, it appears that the court, over objection of defendant, permitted the witnesses Joe Cusenberry and W. P. Cusenberry to testify that said W. P. Cusenberry was unarmed, and had no gun in his hack at the time he was shot by defendant. One objection to the testimony of Joe Cusenberry was that he was incompetent, on account of his age and lack of intelligence, and consequently could not understand the nature of an oath. We are of opinion that the witness was not incompetent, as shown by the record, and the court did not abuse its discretion in holding him competent after having fully inquired into the matter by proper examination. As to the objection that both witnesses were allowed to testify that the defendant was unarmed, and had no gun in his hack, in order to show the pertinency of the objection, or rather the pertinency of the evidence, we will state that it is abundantly established by other testimony that the parties had had a previous serious difficulty, and that the prosecutor, W. P. Cusenberry, had made violent threats against defendant, had borrowed or procured a gun some time previous to the shooting which is the subject-matter of this prosecution, which gun he had been in the habit of carrying about with him in his hack, and that this fact had been communicated to and was well known by defendant. Testifying to the facts immediately attending the shooting, defendant and Henderson, a witness for the defense, both stated that after the defendant hailed Cusenberry, who was in his hack at the time, Cusenberry turned round, and leaned over in his back, as though about to get his gun; and the theory of the defense was that the defendant shot him at that time, and was justifiable in doing so upon the ground of reasonable appearances of danger to his life or serious bodily injury to his person. It is contended that to permit the two Cusenberry witnesses to testify that at that particular time Cusenberry did not in fact have a gun in his hack was inadmissible, because the fact that he did not have a gun was not known to the defendant, and such evidence deprived him necessarily, in the minds of the jury, of his defense, so far as his actions were based upon reasonable appearances of danger. We think the evidence was admissible, because, while the defense was that Cusenberry was leaning over at the time he was shot, as though he was about to grasp a gun in the hack, the theory of the prosecution on the other hand was that he was not leaning over at that time, and could not have been leaning over, as stated by the defendant, for the purpose of grasping his gun, because he had no gun in the hack at the time. We think the evidence was admissible in support of the theory of the prosecution that he was not leaning over at the time for the purpose of grasping a gun.

One of the grounds most earnestly and strenuously insisted upon as error is supposed defects in the charge of the court relative to communicated threats, and self-defense as growing out of such threats. The specific charge objected to is as follows: "You are further instructed that if you find from the evidence that prior to the time of the alleged assault the said W. P. Cusenberry had threatened the life of the defendant, or had threatened to do him some serious bodily harm, and these threats had been communicated to the defendant, such threats, of themselves, would afford no justification of the offense, unless it be shown that at the time of the alleged assault the said W. P. Cusenberry had done or was in the act of doing some act, or was making some demonstration manifesting an intention then and there to execute or carry out such threats, or which was reasonably calculated, in view of all the evidence and circumstances of the case, viewed and considered from defendant's stand-point, to produce, and did produce, in the mind of defendant the belief that the said W. P. Cusenberry was about to execute such threats, in which event the defendant would have the...