Yelton v. State

• Decision Date: 21 October 1914
• Docket Number: (No. 3246.)
• Parties: YELTON v. STATE.
• Court: Texas Court of Criminal Appeals

170 S.W. 318

YELTON v. STATE.

(No. 3246.)

Court of Criminal Appeals of Texas.

October 21, 1914.

Appeal from Donley County Court; J. C. Killough, Judge.

Ed Yelton was convicted of assault, and he appeals. Affirmed.

E. A. Simpson and King & Ritchey, all of Clarendon, for appellant. W. T. Link, Co. Atty., of Clarendon, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with an aggravated assault, the indictment reading:

"On or about Dec. 1st, 1913, Ed Yelton did unlawfully with a pocketknife, the same being then and there a deadly weapon, commit an aggravated assault in and upon J. M. Clark."

Appellant contends that this indictment does not embrace a charge of simple assault, and the court erred in submitting that issue, and the verdict cannot be sustained, because the indictment does not charge that the assault was made with "intent to injure." It is not necessary to allege in the indictment or information and complaint the intent to injure, and it has been held by this court that one charged with an aggravated assault may be convicted of a simple assault if the facts justify such finding. Davis v. State, 20 Tex. App. 302.

The state's witness J. M. Clark testified:

"My name is J. M. Clark. I live at Hedley, Tex., in Donley county. I lived there during the months of December and November, 1913. I know the defendant, Ed Yelton, and knew him during the year 1913. He also lived at Hedley, Donley county, Tex. I remember the occasion on which he assaulted me. It was some time during the month of December, 1913; I don't remember the exact date. On the morning on which he assaulted me I had come down town early to go to work in my tailor shop on the west side of the main street of Hedley. I was up about the north end of the main street, standing in front of Moreman's store, talking to some one. I heard some one call, `Jim.' I looked up and saw Ed Yelton standing about ten feet in front of the porch of his barber shop, which was directly across the main street of Hedley and a little south of me. When I looked up the defendant, Ed Yelton, called to me and said: `Jim, come here a minute; I want to talk to you.' I walked across the street to where he was, and when I got up close to him he reached up and tapped me on the shoulder and said: `Jim, you have got to go in and apologize to my wife.' I pulled back from him and said: `Ed, what does this mean?' He then grabbed me by the coat and jerked out an open knife and threw the knife with his right hand up in about ten inches of my throat and said: `You come on in here and apologize to my wife or I'll cut your damned head off.' Of course I did not want my head cut off, so I went on in. As we walked across the street from where we stood into his shop he held me by the lapel of the coat with his left hand and held the knife up close to my throat with his right hand. The knife was open. I went into his house because I was scared of his knife and he had threatened to cut my head off and I did not want that done."

Appellant testified in his own behalf that the night before the alleged assault he had been informed by his wife that Clark had laughed and sneered at her; that he could not sleep, and it preyed upon his mind. The next morning he looked out of his shop, saw Clark on the opposite side of the street, and in his own language he says:

"I looked out of the front door and saw Clark standing on the sidewalk across the street, and I made up my mind I would go over and ask him to come in and apologize to my wife and stop his way of doing before it led to serious trouble. I picked up an old dirty hat I had, put it on, and stepped out of the front door and off the walk, and started over to where Clark was. Just as I stepped off of the walk I thought, `Now, Clark is a bigger man than I am,' and I kinder turned my back to him, and pulled my pocketknife out of my pocket and opened it and put it back in my pocket. My only purpose in opening the knife was to defend myself in case Clark attacked me when I asked him to come in and apologize to my wife. I called to Clark, and he walked out into the street to meet me, and we met about middle ways of the street. My knife was in my pocket open, and I touched Clark on the shoulder with my hand and said, `Jim, I will have to ask you to go in and apologize to my wife.' When I said this he jerked back from me and said, `What does this mean?' When he did this I thought he was going to attack me, and I took hold of the lapel of his coat with my left hand and pulled my knife out of my pocket with my right hand and held it down by my side with my finger over the point of the blade and said to him, `You come on.' * * * No; I never threw my knife up close to his throat and told him I would cut his damned head off if he didn't come on in and apologize; never got my knife where he could see it. I just held it down by my side in my hand with my finger over the blade. My only purpose in going out into the street and speaking to Mr. Clark was to request him to apologize to my wife and stop his insulting way towards her so as to avoid trouble. I had absolutely no intentions of injuring Mr. Clark in any manner that morning unless he first attacked me. My only purpose in carrying my knife out there was to defend myself in case he attacked me when I asked him to apologize. I never tried to strike him or injure him in any way. I just touched him on the shoulder and told him that I would have to ask him to come in and apologize, and when he pulled back I took hold of the lapel of his coat, pulled out my knife, and held it as I have already detailed and told him to come on."

On cross-examination he said he did not like Clark, but that he was only intending to...