Barbee v. State

29 S.W. 776, 34 Tex. Crim. 129, 1895 Tex. Crim. App. LEXIS 42

• Court: Court of Criminal Appeals of Texas
• Decided: February 13, 1895
• Docket: No. 589.
• Status: Published

Opinion

HURT, Presiding Judge.

Conviction for assault with intent to murder. The court submitted to the jury aggravated assault and self-defense. Tested by the testimony of the defendant—he being a witness—it is doubtful whether this is proper or not. We are of opinion that the testimony required no such charges. The whole proof in the case clearly demonstrates that the assault was with intent to murder, and nothing less. Appellant proposed to prove by himself that the prosecutor, Brown, had called him a “son of a bitch,” and charged him with an attempt to rape his (prosecutor’s) wife, etc. Concede all this to be true, still this would be no justification for the assault, nor would it reduce from assault to murder to aggravated assault. The court admitted evidence of threats against appellant, and all the violent conduct by the prosecutor towards the appellant. This was all he could demand under the facts of this case. All that which related to the assault to rape and the abusive language could not be used for the purpose of reducing the crime from assault to murder to aggravated- assault, but might have been used by the State as powerful motives to prove that the assault was with premeditation and malice.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.