Berry v. State

Court of Appeals of Texas

Berry v. State

17 S.W. 1080, 30 Tex. Ct. App. 423, 1891 Tex. Crim. App. LEXIS 110

CourtCourt of Appeals of Texas

DecidedDecember 5, 1891

DocketNo. 3725

StatusPublished

Cited by3 cases

This text of 17 S.W. 1080 (Berry v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berry v. State, 17 S.W. 1080, 30 Tex. Ct. App. 423, 1891 Tex. Crim. App. LEXIS 110 (Tex. Ct. App. 1891).

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Opinion

WHITE, Presiding Judge.

Appellant- was convicted of aggravated assault. He testified as a witness in his own behalf at the trial.

During his examination as a witness his counsel asked him “What was his object and purpose in striking the boy with the switch?” to which the State objected, and the court sustained the objection upon the ground that the jury would judge of the objects and motives of the defendant from the facts. In an assault and battery and aggravated assault and battery the intent to injure is the principal ingredient of the offense. Penal Code, art. 484.

Mr. Wharton says: “Ordinarily a witness can not be examined as to another person’s motives. It is otherwise with a witness’ own motives, as to which, when relevant, he is always open either to examination or cross-examination. Hence a party when examined as a witness may be asked as to his own motives and intentions when these are material.” Whart. Crim. Ev., 8 ed., sec. 431; 1 Whart. Ev., 2 ed., secs. 482, 508; 2 Whart. Ev., 2 ed., sec. 955; 3 Ct. App. C. C., sec. 134.

“Hnder the common law and practice, until recent times, no question of the defendant testifying as to his intention could arise. Hnder recent statutes authorizing the accused to testify in his own behalf the question has several times arisen. As the intent is the essence of the crime, * * * and if there was no intent to commit the act charged there was no guilt, it necessarily follows that testimony direct as to the intent is competent, and it is not incompetent because it comes from the mouth of the defendant.” 9 Crim. Law Mag., 166, and authorities cited.

Because the court erred in excluding the evidence of the defendant as to his motives and intentions, the judgment is reversed and the cause remanded.

Beversed and remanded.

Hurt, J., absent.

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WHITE, Presiding Judge.

Appellant- was convicted of aggravated assault. He testified as a witness in his own behalf at the trial.

During his examination as a witness his counsel asked him “What was his object and purpose in striking the boy with the switch?” to which the State objected, and the court sustained the objection upon the ground that the jury would judge of the objects and motives of the defendant from the facts. In an assault and battery and aggravated assault and battery the intent to injure is the principal ingredient of the offense. Penal Code, art. 484.

Mr. Wharton says: “Ordinarily a witness can not be examined as to another person’s motives. It is otherwise with a witness’ own motives, as to which, when relevant, he is always open either to examination or cross-examination. Hence a party when examined as a witness may be asked as to his own motives and intentions when these are material.” Whart. Crim. Ev., 8 ed., sec. 431; 1 Whart. Ev., 2 ed., secs. 482, 508; 2 Whart. Ev., 2 ed., sec. 955; 3 Ct. App. C. C., sec. 134.

“Hnder the common law and practice, until recent times, no question of the defendant testifying as to his intention could arise. Hnder recent statutes authorizing the accused to testify in his own behalf the question has several times arisen. As the intent is the essence of the crime, * * * and if there was no intent to commit the act charged there was no guilt, it necessarily follows that testimony direct as to the intent is competent, and it is not incompetent because it comes from the mouth of the defendant.” 9 Crim. Law Mag., 166, and authorities cited.

Because the court erred in excluding the evidence of the defendant as to his motives and intentions, the judgment is reversed and the cause remanded.

Beversed and remanded.

Hurt, J., absent.

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17 S.W. 1080, 30 Tex. Ct. App. 423, 1891 Tex. Crim. App. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-state-texapp-1891.

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