The offense is assault with intent to murder; the punishment, confinement in the penitentiary for three years.
This appeal and Jesse Steen v. the State, Opinion No. 16,232, this day delivered, are companion cases.*
Appellant, who is a negro, had gone to his home in an automobile with his brother Jesse for the purpose of removing his personal effects. A quarrel ensued between appellant and his wife, which resulted in Horace Reed, the constable of the precinct, being called to the house. Stafford Reed, the injured party, accompanied his brother, the constable, to the scene of the difficulty. When they arrived Jesse Steen was sitting in an automobile near the porch and appellant was carrying his personal effects to the car. Stafford Reed, the injured party, entered the house while the constable remained in the yard. According to the testimony of the latter, he commanded appellant to quit quarreling with his wife and leave the place. At this juncture, we quote from the testimony of the witness as follows: "And then he (appellant) started to talking back to me and he went outside and one word brought on another. I asked him 'Can't you say yes sir to a white man' and he said something else. He had a crank in his hand and started to the front end of the car and said something else to me, and I says 'What was it you said,' and he turned around with the crank and said 'I said yeah' and had the crank in his hand and drawn back and I hit him with my pistol and then he called for his brother. Then his brother (Jesse), got out of the car and I heard a lick — you see Sylvester (appellant) had done clinched me then and I had my back toward the car, and I heard a lick about that time, and then when he called his brother I just wheeled Sylvester around and saw Stafford fall."
The witness further testified that his pistol flew out of his *Page 655 hand as he hit appellant and dropped on the porch; that he finally disengaged himself from appellant and secured the pistol; that appellant grasped him around the waist from behind and called to Jesse to come to his aid; that responding, Jesse wrench the gun from his hand; that placing the gun in his belt, Jesse walked away, accompanied by appellant; that he asked the parties to let him back his car out of the way before they left, which they did; that appellant and Jesse then drove away in the car with his pistol; that he pursued them, and upon overtaking them, deliberately ran into their car and wrecked it; that they got out of the car and ran away. The injured party testified that while in the house he heard someone call for help, and that he stepped out on the porch to see what the trouble was. He said that he found appellant and the constable engaged in a scuffle, and that as he approached them, Jesse Steen struck him across the body with a Winchester, knocking him to the ground; and that as he tried to get up, Jesse struck him on the head with the gun, rendering him unconscious. The testimony on the part of the state was to the effect that the "outer table" of the skull was fractured, and that the wound resulted in the confinement of the injured party in a hospital for several days. Moreover, there was testimony to the effect that the gun in the manner in which it was used was capable of producing death.
Testifying in his own behalf, appellant declared that the constable made an unprovoked attack upon him with his pistol, striking him on the head two or three times. He said that while he and the constable were fighting, Stafford Reed, the injured party, struck him over the constable's shoulder with some character of instrument, and that he struck the injured party with an automobile crank. He testified that after this occurrence he called to his brother Jesse, who was sitting in the automobile, to come to his aid, and that, in response to his call, Jesse helped him disarm the constable. He denied that Jesse struck the injured party with a Winchester and declared that he alone hit him with the automobile crank for the purpose of protecting himself and with no intention of killing him. His testimony was to the further effect that after he and his brother had disarmed the constable they left the scene of the difficulty and were pursued and run down by him in his automobile.
We think appellant's contention that the evidence is not sufficient to support the conviction should be sustained. Appellant had ample opportunity to shoot the injured party and his brother after he had secured the pistol, but made no attempt to shoot either of them. The state's testimony fails to *Page 656 show that appellant was engaged in any character of difficulty with the injured party, and unmistakably demonstrates that Jesse Steen assaulted him upon an independent impulse. There was no proof that appellant, in any manner, encouraged Jesse Steen to assault the injured party, nor that the assault was made by Jesse Steen in pursuance of an agreement with appellant. Under the circumstances, if Jesse had the intent to kill the injured party, such intent was not imputable to appellant. Ordinarily the accused is to be judged by his own intent and not by the intent of another in a difficulty, unless he adopts and ratifies the intent of such other by aiding him by acts or encouraging him by words or gestures. Branch's Annotated Penal Code, sec. 691; Bibby v. State, 65 S.W. 195.
The judgment is reversed and the cause remanded.
Reversed and remanded.
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.
* (Page 361 of this volume).
ON MOTION FOR REHEARING.