Page 1049


20 S.W.2d 1049


GOVAN
v.
STATE.


(No. 12635.)


Court of Criminal Appeals of Texas.


June 19, 1929.


Rehearing Denied November 6, 1929.

Commissioners' Decision.

Appeal from District Court, Freestone County; W. R. Boyd, Judge.

Horace "Toodlum" Govan was convicted of aggravated assault, and he appeals. 
Affirmed.

R. L. Williford, of Fairfield, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is aggravated assault; the punishment being assessed at a fine of 
$100 and confinement in the county jail for six months.

Appellant and the injured party had been engaged in a card game. Appellant and 
his witnesses testified that the injured party had obtained some of appellant's 
money by the use of fraud. After the game terminated, the injured party was 
sitting near the fire. Appellant walked up to him, and demanded that he return 
his money to him. The injured party refused to comply with the demand, and 
appellant struck him on the head with a poker, crushing his skull.

There was no issue of self-defense in the case; appellant's theory being that he
had the right to assault the injured party in order to regain his money. He 
sought to have the jury instructed that if they believed that the injured party
had taken his money and refused to return it to him and that he struck the 
injured party with no other intent than to try to regain his property he should
be acquitted. Appellant was not entitled to this instruction. He may have had a 
perfect legal right to the money in the possession of the injured party, but he 
had no right to commit an assault in an endeavor to repossess himself of said
money. Carrel v. State, 77 Tex. Cr. R. 344, 178 S. W. 331.

Cole v. State, 104 Tex. Cr. R. 533, 286 S. W. 204, 205, 207, we find language 
as follows: "If their money was taken from them by means of fraudulent dice, as
contended by the appellants, the person so taking it would be guilty of theft 
by false pretext, and the title to the money thus acquired would not pass. 
Gibson v. State, 85 Tex. Cr. R. 462, 214 S. W. 341; Gordon v. State, 85 Tex. Cr.
R. 641, 214 S. W. 980. Under such circumstances, in endeavoring to repossess 
themselves of money stolen from them, they would not be guilty of robbery 
though they might be guilty of an unlawful assault. Barton v. State, 88 Tex. 
Cr. R. 368, 227 S. W. 317, 13 A. L. R. 147; Fisher v. State (Tex. Cr. App.) 
[102 Tex. Cr. R. 229] 277 S. W. 386 [42 A. L. R. 740]."

The court should not have charged the law of self-defense, as the issue was not
raised. However, the facts show without controversy that appellant committed the
assault on the injured party, and the error does not call for a reversal. 
Branch's Annotated Penal Code of Texas, § 1969; Hicks v. State, 75 Tex. Cr. R.
461, 171 S. W. 755, 761.

Appellant contends that the evidence fails to disclose that the poker used by 
him in striking the injured party was in the manner of its use a deadly weapon.
We are unable to agree with this contention. Not only did the injured party 
sustain serious bodily injury, but the size of the poker as disclosed by the 
witnesses justified the finding by the jury that, in the manner in which it 
was used, it was a deadly weapon.

Failing to find reversible error, the judgment is affirmed.

PER CURIAM.

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.


On Motion for Rehearing.

MORROW, P. J.

Exceptions were reserved to the charge and special charges were requested. One 
of these, charge No. 2, in substance would have told the jury that, if Walker 
took the property of the defendant and refused to return it, and that Walker 
was

Page 1050

struck by the appellant solely for the purpose of regaining his property, he 
should be acquitted. The defense of recovery of stolen property as set forth 
in the homicide statute, article 1222, Pen. Code, was not available to the 
appellant. He does not so contend. The dollar which he claims was in the 
possession of the injured party was not taken from the appellant by false 
pretext, bringing it within the principle of article 1413, Pen. Code, defining
theft by false pretext. Gordon v. State, 85 Tex. Cr. R. 641, 214 S. W. 980. 
Walker, the injured party, was not dealing the cards. It is claimed by the 
appellant and his witnesses that, while the witness Thurmond was dealing the 
cards in a game of "monte," the appellant and Walker bet each other $1. 
Appellant bet on the "six" and Walker on the "queen." The winner was to be 
determined by which of the cards (the "six" or the "queen") would be first dealt
from the cards remaining in the deck. The "queen" came first, but it was
discovered and announced by Thurmond that the "six" was not in the deck. 
Thurmond declared that the "lay" was "foul," and that there could be no winner
under the circumstances. It is not claimed that Walker was responsible for the
absence of the "six."

The appellant's version of the case is controverted by the state's testimony, it 
presenting the theory that the appellant, having previously lost to Walker a 
considerable sum of money, and having also lost the dollar mentioned, struck
Walker without provocation while he was sitting by the fireplace. The act of the 
appellant cannot be justified under articles 1224 and 1227 of the statute (Pen.
Code) with reference to the right to protect property. This for the reason, 
among others, that the force used was apparently excessive. Where the facts 
bring into operation the statute mentioned, the law demands that other means be
exhausted before resorting to violence; and the law also demands that, if force 
is used, it should not be excessive. The matters discussed were not submitted 
to the jury. The special charge which the appellant requested was absolute in 
its terms, directing an acquittal if the appellant's intent and purpose in 
striking the blow were to regain his money. From the facts, viewed from the 
appellant's standpoint, no theory is presented which in a legal sense would have
justified the acquittal of the accused. In any view of the testimony he was
guilty of some grade of assault.

In his charge submitting aggravated assault, the court embraced the following 
language: "If you believe from the evidence that Garland Walker, just prior to 
the alleged assault, took one dollar belonging to defendant, and upon 
defendant's demanding and requesting of him the payment or return of such dollar
that the said Garland Walker refused to restore the same, such act on the part 
of Garland Walker would constitute adequate cause."

The jury acquitted the appellant of assault with intent to murder, and 
manifestly gave him the benefit of the paragraph of the instruction quoted 
above, which is quite favorable to the appellant. The evidence is sufficient to
show that the blow was struck with a weapon which, in the manner used, was 
deadly. The wound inflicted was serious, as the skull of Walker was fractured.

The motion for rehearing is overruled.