Short v. State

On Motion for Rehearing.

HAWKINS, J.

Appellant calls attention to an error in our original opinion wherein we stated that no special charge was requested attempting to correct the erroneous definition of a deadly weapon. There was such a requested charge. It should have been given, or the one embraced in the main charge corrected. The exception to the charge was sufficient to preserve the point. An error in defining a deadly weapon will under the circumstances of some cases demand a reversal, while in others it will not. The undisputed evidence in the present record shows the weapon used was a “32 Colt’s short” pistol; that it was used as a firearm within such distance of the injured party as that one bullet from it went through the glass in the car door, throwing shattered glass in Mrs. Panick’s face, passed through the fleshy part of her right arm, and into her left hand, embedding itself against the bones. We take it there can be no doubt that as used the pistol was a deadly weapon. It was “calculated or likely to produce death or serious bodily injury.” It was appellant’s great good fortune that it did not do so. After again reviewing the facts and the authorities cited by appellant, we are unable to reach the conclusion that the error in defining a deadly weapon could have resulted in harm to appellant under the circumstances of the present case.

Appellant further contends that, because appellant did not know Mrs. Panick, nor know that it was she in the ear, it was error for the court to tell the jury in substance that, if appellant believed she had burglarized his house, and was not guilty of negligence in reaching such conclusion, he should be acquitted. The evidence shows that she was the only party in the ear, and, regardless of whether or not appellant knew her, the jury could not have been misled by the instruction.

Appellant still urges that the court should have given him the benefit of a charge on simple assault, under the provision of subdivision 3, art. 1141, P. C., which reads: <> ⅜ ⅜ * uge 0f any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, comes within the meaning of an assault.”

In support of his proposition appellant refers us to the following cases: Teague v. State, 84 Tex. Cr. R. 169, 206 S. W. 193; Eubank v. State, 115 Tex. Cr. R. 112, 28 S.W.(2d) 808; Drake v. State, 62 Tex. Cr. R. 130, 136 S. W. 1064, 1065; Price v. State, 81 Tex. Cr. R. 208, 194 S. W. 827; Ivory v. State, 48 Tex. Cr. R. 279, 87 S. W. 699; Catling v. State (Tex. Cr. App.) 72 S. W. 853; Pastrana v. State, 48 Tex. Cr. R. 224, 87 S. W. 347; Smith v. State, 114 Tex. Cr. R. 534, 26 S.W.(2d) 1069; Lire v. State, 113 Tex. Cr. R. 300, 21 S.W.(2d) 506; King v. State, 61 Tex. Cr. R. 190, 134 S. W. 687; Haygood v. State, 51 Tex. Cr. R. 618, 103 S. W. 890; Barnett v. State (Tex. Cr. App.) 93 S. W. 722; Reyes v. State, 48 Tex. Cr. R. 346, 88 S. W. 245; Bouldin v. State (Tex. Cr. App.) 74 S. W. 907; Mozee v. State (Tex. Cr. App.) 51 S. W. 250; Bean v. State (Tex. Cr. App.) 49 S. W. 394; Stanton v. State (Tex. Cr. App.) 29 S. W. 476. We have examined each of the cases with care. In all of them save one no injury whatever was inflicted, and, under the facts, the cases came clearly within the provisions of article 1141, quoted above. The Teague Case is the only exception. It presents facts so different from those in the present case we would not regard it as authority sustaining appellant’s contention. As we construe the opinion, it holds that a shotgun loaded with fine shot might or might not be a deadly weapon when fired, depending on distance, etc. If in fact the gun as used was not a deadly weapon, the issue of simple assault might have been in the ease. If as used it was a deadly weapon, the resulting injury was not less than aggravated assault and battery.

It is clear from the provisions of article 1141, P. O. that it.was never contemplated that an assault such as there defined could ever culminate in actual injury. In the present case, there was actual injury inflicted with a deadly weapon. There was no accident about it, unless bad marksmanship can be designated as an accident: Appellant says he did not intend to shoot any one in the car, but was only shooting to stop it. He was discharging the pistol purposely towards the car under circumstances which might have resulted in death or serious bodily injury. Violence having been inflicted with a deadly weapon, we see no escape from the application of subdivision 8 of article 1147, which makes an assault aggravated when “committed with deadly weapons under circumstances not amounting to an intent to murder or maim.”

The case of Salisbury v. State, 90 Tex. Cr. R. 438, 235 S. W. 901, is very similar upon the facts to those found in the present ease. There conviction for aggravated assault was approved. The reasoning in the following cases seems adverse to the proposition presented by appellant. Bilyeu v. State, 103 Tex. Cr. R. 25, 279 S. W. 845; Davis v. State, 106 Tex. Cr. R. 300, 292 S. W. 220; McDonald v. State (Tex. Cr. App.) 22 S.W.(2d) 670.

*590Our state’s attorney calls attention to a matter which he urges would in any event preclude a conviction for less than aggravated assault. The indictment charged appellant with assault with intent to murder, not particularizing the means By which the assault was committed. Such an indictment charges every phase of aggravated assault which may arise under the evidence. Lacoume v. State, 65 Tex. Cr. R. 146, 143 S. W. 626; Lofton v. State, 59 Tex. Cr. R. 270, 128 S. W. 384.

The undisputed evidence shows that appellant. was an adult male and the injured party was a female. Subdivision 5, art. 1147, makes an assault aggravated when committed by an adult male upon the person of a female. Upon the trial, no notice was taken of this phase of the statute on aggravated assault. It seems applicable under the facts and the cases cited.

The motion for rehearing is overruled..