Feland v. State

323 S.W.2d 37, 168 Tex. Crim. 11, 1959 Tex. Crim. App. LEXIS 2433

• Court: Court of Criminal Appeals of Texas
• Decided: February 11, 1959
• Docket: No. 30,355
• Status: Published

Opinions

WOODLEY, Judge.

The appeal is from a conviction for assault with intent to murder without malice; the punishment, 2% years.

The indictment charged assault with intent to murder with malice.

The evidence shows and appellant himself testified that, while riding in an automobile traveling at a high rate of speed, appellant fired his shotgun three times aiming it at an automobile with five people in it which was some half a car length ahead and a foot or so to the right, traveling in the same direction.

One of the shots struck Terrell, who was the driver of the second car, in the arm requiring that it be amputated.

Omissions in the court’s charge are the sole ground upon which reversal is sought, it being appellant’s contention that the court failed to instruct the jury affirmatively on the issue of lack of intent to kill, and failed to charge upon the law of reasonable doubt as between the offense of assault with intent to murder and aggravated assault.

The charge submitted assault with intent to murder with malice, the jury being required, in order to convict, to find beyond a reasonable doubt that appellant, with malice, made the the assault with intent to kill and also that the weapon used was a deadly weapon. The charge then instructed that if the jury had a reasonable doubt as to whether or not the defendant committed the offense with malice but found beyond a reasonable doubt that he committed the offense to find him guilty of assault with intent to murder without malice.

The charge further instructed that if the jury had a reasonable doubt as to whether he was guilty of assault with intent to murder, with malice or without malice, but believed beyond a reasonable doubt that the defendant was guilty of some grade of offense, they would then consider if he was guilty of aggravated assault, and defined and submitted that offense.

This portion of the charge was confined to the question of aggravated assault with a deadly weapon and required the jury in order to convict to find beyond a reasonable doubt that the defendant, by shooting him with a gun, did assault Lee K. Terrell but did not intend to kill Terrell.

Appellant’s version of the shooting was submitted as an affirmative defense. The court charged on the law of self-defense under reasonable apprehension or fear of death or serious bodily injury at the hands of Terrell, or anyone in the car with Terrell.

In addition the jury was instructed that if, as viewed from appellant’s standpoint, immediately before he fired the shotgun it reasonably appeared to him that the automobile driven by Terrell was about to be driven against appellant’s automobile, and that it reasonably appeared to appellant that he and the other occupants of his automobile might thereby suffer serious bodily injury, and that appellant discharged his shotgun at the automobile driven by Terrell for the purpose of preventing such injury, or if the jury had a reasonable doubt as to such facts, to acquit.

The charge fully protected appellant’s rights and it appears from the record that he was accorded a fair and impartial trial.

The judgment is affirmed.