The indictment was in two counts. Only the second was submitted. After the necessary preliminary allegations it averred: That on or about December *Page 233 20, 1913, appellant "did then and there unlawfully make an aggravated assault and battery in and upon J.B. Woody and did then and there strike said J.B. Woody with his fist, and did thereby knock the said J.B. Woody to the ground and cause the head and skull of said J.B. Woody to come into violent contact with the pavement of the street and sidewalk where said assault occurred, and did thereby inflict and cause to be inflicted upon the said J.B. Woody serious bodily injury."
The last ground of appellant's lengthy motion for a new trial is this: "Because the evidence is not sufficient to warrant a conviction for aggravated assault." This is the only thing on the subject in any way in the record.
From the whole record the charges given by the court in his main charge and the one given specially requested by appellant and those refused, and all the evidence it occurs to me that this last ground of the motion for new trial was thrown in rather for good measure and that it was not seriously contended at the time of the trial nor when the motion for new trial was acted upon that the evidence was insufficient to sustain the verdict. Appellant has in no way briefed the case.
Whenever such question is raised for this court to pass upon it is a legal question, and in considering it, it is necessary and proper to look only to what evidence will sustain the verdict, and it is not necessary to consider or give the evidence which tends to support an acquittal. It must always be also considered that the jury believed the incriminating testimony and did not believe the exculpatory testimony. The credibility of the witnesses and the weight to be given to their testimony, by our statute, is exclusively for the jury and the court below and not for this court.
Mr. Woody, the assaulted party, did not testify for the reason that he was then insane, — and had been so adjudged — directly from the effects of the assault and battery committed upon him by appellant. He was, however, produced before the jury so that the doctor who testified could show and exhibit to the jury where and how his skull had been injured. Appellant was also, of course, present at the trial, and testified. The jury, therefore, saw both parties necessarily. In addition, the uncontradicted evidence showed that appellant was a strong man used to physical labor; that he was six feet tall and weighed 175 or 180 pounds; that Woody was not such a strong man, though he was also about six feet tall and he would not weigh more than about 125 to 140 pounds.
The testimony, without contradiction, showed that Woody owned a gin in the country near Waco; that appellant had a working interest in it and run it for Woody. He himself said: "I was working for a third of the proceeds and my wife was boarding the hands," and that he only had a working interest in it. Woody only occasionally went out to the gin while it was being run. It was not paying much and he became dissatisfied. Thereupon, appellant quit about December 15th. Appellant claimed that Woody owed him about $352 for his part of the ginning and the grub that he had furnished the hands; that he *Page 234 did not know Woody was dissatisfied until some of the patrons of the gin told him they had received letters from Woody asking them not to settle with appellant for the ginning. As soon as he found that out he came to town and demanded a settlement by Woody; he claimed they agreed on the balance due him and Woody said he would pay it in a day or two; that he then wanted appellant to take a vendor's lien note, but appellant declined and stated he wanted the money; that while he was at work out there, about December 20th, he got a letter from some attorney, — not from Woody — telling him that they were going to look to him and his bondsmen for a balance of about $600 or $700 that was due on the gin, and that he, appellant, was under a $1000 bond for it at that time. He claimed that Woody had promised to pay him on dates fixed between the 15th and 20th of December and had failed to do so. There is no testimony that Woody was contentious about paying his debts. Like a great many other men, he may not have been able then to pay. The assault and battery occurred in the evening of December 20, 1913, within five days after appellant claimed that he and Woody had agreed that Woody owed him $352.
Jesse Mimms testified that he knew both Woody and Calvert and that he had an interest in the gin at which Calvert worked and that he went out there with Woody; that the gin was not paying and Woody wanted to sell it. "I heard Halbert Calvert say that if Woody did not pay him he was going to beat him hell out of him."
L.L. Sisco testified: "About two or three o'clock I was in the saloon at the corner of Fifth and Franklin Streets and Calvert (appellant) and a crowd of fellows came in and asked for Woody. He (appellant) seemed to have had a drink or two and said he was going to beat the s___t out of him if he did not pay him. I was afraid that there would be trouble and called up Woody and told him not to come to town."
Dan Dismuke testified: That he was proprietor of the City Market in Waco; that he saw appellant about a week before he struck Woody in said saloon "and he was inquiring for Mr. Woody and said he would beat the s___t out of the damn son-of-a-bitch if he did not pay him. I saw Calvert was mad and was drinking so I went to the phone and called up Woody and told him not to come to town that afternoon." That on the afternoon of the encounter he again saw appellant in said saloon about two o'clock "and he (appellant) said he was going to break his (Woody's) neck if he did not pay his money and that he was going to cut his damn throat." (In an attempt to break his neck, he actually broke his head, which resulted worse to Woody.)
The uncontradicted testimony from all the witnesses, — and there were several, — showed that Woody was on the sidewalk at the corner of Fifth and Franklin Streets in Waco in front of said saloon standing with one foot on the edge of the sidewalk, the other on the step of an automobile two feet or less from the sidewalk talking to two men therein; that while so engaged appellant came along and when he got to Woody told him he wanted to see him when he got through, and he (appellant) then stepped back a few steps from Woody; that when *Page 235 Woody got through talking with the men in the automobile he turned around and walked up to appellant, appellant then handed him the said letter which he had received from the attorney. Woody held the letter in his left hand and read it. One witness testified appellant asked him, "What do you mean by treating me this way?" Woody replied he did not know anything about it. Appellant said, "You surely do." Woody again said he did not, when appellant said, "Yes, you certainly do know something about it," then Woody called him a God damned liar. Appellant himself testified that when he handed Woody the letter, "I merely asked him for an explanation as to why me and my bondsmen were being threatened with a suit for a claim that he owed individually, and, of course, when he said he did not know anything about it, I did not like it very much."
All the witnesses testified that when this conversation took place between appellant and Woody, and Woody called him a liar, appellant struck Woody in the face and knocked him down, Woody falling straight back from the blow. The witnesses differ as to whether Woody's head struck the automobile or the pavement of the street, or the edge of the sidewalk. Some of them swear positively his head did not strike the automobile, but instead, struck the pavement and sidewalk. There were several eyewitnesses to the assault and battery. The edge of the sidewalk at this point was a foot or more higher than the paved street.
Henry Smith swore that he was right at the parties, looking at them, saw the whole thing, and said: "I know Mr. Calvert was mad because I could tell from his eyes." All that had occurred between Woody and appellant about the gin, and appellant's repeated threats clearly showed he was then very mad at Woody.
All the witnesses say that when Woody was felled by the lick from appellant, and his head struck, as stated, his body then rolled off of the sidewalk on to the street. Several of them immediately ran to him to pick him up. Every one of them, and there were several, who testified on the subject, said that they thought Woody was killed.
Pat Morgan said that when they picked Woody up "blood was running from Woody's eyes, nose and mouth." He was then immediately carried into the saloon and all the witnesses say, in effect, that blood was running from Woody's eyes, nose, mouth and ears. All the witnesses thought he was killed. Some of them, however, then pulled one of his eyes open and concluded he was not dead and a physician was sent for. The one first to him, Dr. Womack, said: "When I first saw him he was all covered with blood and was lifeless and I did not think he could live." Upon further examination he discovered that his skull was fractured, and thinking he might be able to survive, he had him at once moved to a sanitarium and called another doctor, Dr. Conally; they both examined him and both swore that his skull was fractured at the back part of his head; that he was unconscious, flighty, and remained so for a long time; they performed an operation on his skull and in the course of a few weeks he was removed from the sanitarium to his home. The doctors state, in effect, that the injury *Page 236 inflicted was serious; that he had never recovered mentally from it and that it caused his insanity, and that he had been adjudged insane and at the time of the trial, which occurred in July, 1914, he was still insane.
Our statute (art. 1008, P.C.) is: "The use of any unlawful violence upon the person of another with intent to injure him, whatever be the means, or the degree of the violence used, is an assault and battery."
"An assault or battery becomes aggravated . . . (subdivision 7) when a serious bodily injury is inflicted upon the person assaulted." (Art. 1022, P.C.)
"When an injury is caused by violence to the person, the intent to injure is presumed. . . ." (Art. 1009, P.C.)
"The intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act." (Art. 51, P.C.)
Judge White, in section 74 of his Ann. P.C., says: "A man is always presumed to intend that which is the . . . probable cause of his act. . . ." Citing McCoy v. State, 25 Tex. 33; Aiken v. State, 10 Texas Crim. App., 610; Lane v. State, 16 Texas Crim. App., 172; High v. State, 26 Texas Crim. App., 545, and other cases from this court. There is no question but that this is the law of this State.
The evidence was clearly sufficient to show and for the jury to believe and find that the appellant was very mad at Woody and had been for several days and especially at the time he knocked him down and so seriously injured him. The evidence shows several reasons why appellant was mad at Woody, among them was that Woody had notified the patrons of the gin not to pay appellant for the ginning and pay him, Woody, therefor. This caused him, as he himself says, to at once quit running the gin and seek and demand a settlement. He claims that Woody then admitted that he was indebted to him $352 and could not or would not then pay him; that he then repeatedly made serious threats against Woody to do him very serious bodily harm because he would not or could not pay him at once; that almost immediately before he knocked him down and so seriously injured him, appellant was drinking and in the saloon right at where this occurred inquiring for Woody and then repeating his serious threats against Woody; so much so that the witnesses who heard it were alarmed for Woody and saw and knew that appellant was very mad at him, and they phoned Woody of appellant's threats and urged him not to come to town on the streets on that occasion so that appellant could execute his serious threats. The evidence further clearly justified the jury to conclude and believe, as they did, that appellant continued his search for Woody until he found him at which time he tried to execute his threats, "break his neck," but instead broke his skull, rendered him insane — which is even worse. He saw and knew the location where he then had Woody; he saw and knew the character of the sidewalk and the pavement; he called Woody some two or three steps from the edge of the sidewalk where he was then engaged in his business and conversation with persons in an automobile, *Page 237 back to him and talked to him with appellant's back towards the building and Woody's towards the street and edge of the sidewalk. He could not help but know and contemplate that if he then struck Woody, and knocked him down backward in an effort to break his neck, that his head would necessarily strike the pavement or sidewalk or both. He knew that he was a powerful, strong man, six feet tall, weighing 180 pounds and could not help but know that a stroke from his powerful arm into the face of Woody would knock Woody down, as it did, and either break his neck or break his head. He did strike him such a blow as immediately felled him backwards and caused his head to violently come in contact with the sidewalk or curbing which fractured his skull, and all the witnesses and doctors who then saw him believed that the blow and the fall from it had killed Woody. There can be no question that the injuries thus inflicted were serious, very serious. No one can question, from the facts, that appellant intended to strike and cause injury by violence to Woody and that he did so. Neither can there be any question but that his intention was to strike and do violence to Woody and that the means he used were such as would reasonably and ordinarily result in serious injury to Woody. In my opinion the evidence, under the law, was amply sufficient to show that appellant committed an aggravated assault and battery upon Woody and to justify the jury to so believe and find as they did.
Among other things, the court told the jury that even though they should believe from the evidence that appellant did commit an assault and battery upon Woody, yet, if they found the assault and battery "was not the direct and proximate cause of the injury inflicted upon Woody and that it was not a serious injury" to acquit him of aggravated assault.
Some of the witnesses swore that Woody's head, when he was knocked down by appellant, first struck the said automobile step or hub. Others swore positively that it did not strike either the step or hub of the automobile but that it struck the sidewalk and pavement of the street. At appellant's instance the court gave his special charge to the effect that if they believed from the evidence that appellant did strike said Woody with his fist and that serious bodily injury resulted therefrom, and further that said injury was the result of said Woody's head coming in contact with the automobile step or hub, or if they had a reasonable doubt of it, and that the injury was not inflicted by the head of said Woody coming in contact with the curb or pavement, as alleged in the indictment, then to find him not guilty of an aggravated assault and battery.
No question is raised or intimated by the evidence that the injury to Woody by appellant was the result of an accident. No question of accidental injury was in any way raised. Appellant, a powerful man, intentionally struck him a blow with such force as to immediately fell him backwards to the sidewalk and pavement full length. None of this, as stated, intimated an accidental stroke or anything that would indicate an accidental knocking down on the sidewalk or street. *Page 238
Some of the witnesses say appellant did not strike Woody a"very hard blow." Perhaps their idea of a very hard blow was that as it did not sever his head from his body, or didn't break his neck, it was not "a very hard blow."
In my opinion the evidence was amply sufficient for the jury to convict appellant of aggravated assault and battery, and they should have done so, and the judgment should be affirmed. I dissent from its reversal.