140 S.W. 1109


WARD
v.
STATE.†


Court of Criminal Appeals of Texas.


October 11, 1911.

        Appeal from District Court, Freestone County; H. B. Daviss, Judge.

        Bogan Ward was convicted of assault with intent to murder, and he appeals. 
Affirmed.

        G. A. Bell and R. L. Williford, for appellant. C. E. Lane, Asst. Atty. Gen., for the 
State.

        PRENDERGAST, J.

        The appellant was indicted for an assault with intent to murder his wife, was 
convicted, and given two years in the penitentiary.

        It is unnecessary to give any extended statement of the facts. We merely briefly state 
them. The shooting is alleged to have occurred on June 18, 1910. The appellant and his 
wife married about two years before that time. They were both young negroes. The 
appellant was very jealous and suspicious

Page 1110

of her, and in effect accused her from time to time of intimacy with others. They had 
been quarreling and fussing almost continuously during their married life, and had 
separated twice before the shooting, and the indications are were going to separate again 
on the night of the shooting. The appellant had, shortly before this, carried his gun 
apparently for the purpose of shooting his wife, and about a month before the shooting he 
took it with him to church, and hid it out near the cemetery, and, after attempting to 
eavesdrop his wife in her talks with others on this occasion, ran and got his gun and 
brought it back towards the church. When attention was called to this by some persons, 
one of the witnesses accosted him to know why he had brought his gun with him to 
church. He replied to see if he could catch his wife; that she had not been treating him 
right, and, unless she did treat him right, he was going to kill her; that she had quit him 
the last time, and that he had taken her back the last time. On the day of the night of the 
shooting, the negroes had an Emancipation celebration or festival at one of their 
churches; the appellant and his wife and many others were there. Some of the persons 
were there of whom the appellant was jealous. The shooting occurred at night. The 
appellant's wife was engaged in a game with several others, among them some of the 
persons of whom appellant was jealous, and while she was thus engaged, with her back 
towards the church, a shot was fired, which struck her and seriously injured her. The shot 
from the same fire of the gun also struck several other persons. Several witnesses saw the 
flash of the gun, and immediately upon its flash appellant's wife fell, and exclaimed, 
"Bogan [meaning appellant] has shot me." Immediately after the shot, whoever it was 
fired it ran from one window from which the shot was fired across the house to another, 
and jumped out of the window and ran. The evidence clearly shows that whoever did the 
shooting at once ran across the house and jumped out of the window, and, while some of 
them testified they could not see the party well enough to clearly identify him while in 
the house, the appellant was clearly identified, after jumping out of the house, by several 
parties as the party who fired the gun. The testimony is ample, full, and clear to show that 
the appellant was the party who fired the shot from the gun that seriously injured 
appellant's wife.

        Appellant has several bills of exceptions, complaining of the action of the court in 
admitting certain testimony. We will give one of them in full, which is a fair sample of 
each of the others. The first one is as follows: "Be it remembered that upon the trial of the 
above entitled and numbered cause, the state introduced the following testimony by the 
witness Will Green, to wit: `Defendant and his wife had been separated twice. They were 
fussing, quarreling, and fighting, and I would always stop them, and would not let them 
fight.' Which testimony was objected to by the defendant at the time it was offered, upon 
the following grounds, to wit: That said testimony was too remote, that it had no 
connection with the matter under investigation, and that same could serve no other 
purpose than to prejudice the minds of the jury against the defendant. And the court 
overruled said objections, and admitted said testimony, to which decision of the court the 
defendant then excepted, and tenders this bill of exceptions, and asks that same be signed 
and filed as a part of the record in this case." The court in allowing the bill qualified it as 
follows: "Defendant and his wife were shown to have been continuously fussing and 
fighting for some time prior to the shooting, and the evidence showed that defendant 
carried his gun with the avowed purpose of killing her and any other admirer she might 
have. The evidence was admissible to show motive, and was not remote, being shown to 
have occurred the month preceding the shooting."

        The next bill complains that the court admitted the following testimony by the same 
witness: "The fights they had at my house, he accused her of other men. I heard him bring 
Frank Warren's name into it." This was objected to because irrelevant, not pertinent to 
any issue in the case, and not testimony against defendant, and it could only serve to 
prejudice the minds of the jury against the defendant. The court in allowing this bill 
qualified it as follows: "Defendant and his wife were shown by the evidence to have been 
continually fussing and fighting for some time prior to the shooting; and that defendant 
was jealous of his wife because of her alleged relations with Warren and other men. It is 
admissible to show motive, and was not remote. (See pages Nos. 10 and 11, and Nos. 42, 
43, 46, statement of facts.)"

        The next bill is to the testimony of the appellant's wife, as follows: "Once when we 
were having a fuss [meaning witness and defendant] he picked up a piece of board, and 
struck me on the wrist. (Witness was here asked by state's counsel to exhibit her wrist to 
the jury, showing and displaying to the jury a small scar on her wrist.)" This was objected 
to because it occurred long prior to the alleged shooting; that it did not tend to connect 
the defendant with the shooting, and it did not tend to show a motive for said shooting, 
and could only serve for the purpose of prejudicing the minds of the jury against 
defendant. The court in allowing the bill qualified it as follows: "The evidence in the case 
showed that defendant and his wife were constantly fussing

Page 1111

and fighting, and that defendant was jealous of his wife and her relations with other men. 
The evidence was admissible to show motive, and was not shown to be remote, but 
within a week before the shooting, as will be seen by examining the statement of facts 
(pages Nos. 18 and 19)."

        The next bill shows that the appellant objected to the following testimony of 
Simpson: "I examined a track where it appeared that some one might have jumped out of 
the south window [meaning a window of the schoolhouse where the shooting occurred]. I 
measured this track with a string. Afterwards I applied this string to a pair of shoes that 
were sitting by the defendant's bed; they looked like the shoes the defendant had worn the 
day of the `Festival.' The measurement fit the shoe in length and breadth." The defendant 
objected to this testimony, because said shoes had not been identified as the shoes of 
defendant, and there had been no proof that the defendant had ever worn the shoes so 
measured, and such testimony, if adduced at all, should have been introduced before the 
state closed its case; the same not being in rebuttal of any evidence brought out by 
defendant. The court overruled these objections and permitted the testimony, qualifying 
the bill as follows: "The evidence showed that the track measured by Simpson was the 
track made by the party who jumped from the window of the church, and ran off in the 
direction that the witnesses say defendant jumped from the window and ran. The 
defendant in his testimony stated that he had gone home and undressed and placed his 
shoes beside his bed. The witness Simpson testified that he found defendant in bed 
undressed, and the shoes which he measured beside his bed. The measurement was made 
within an hour or two after the shooting, by the witness Simpson, who was the justice of 
the peace, and was endeavoring to trace the identity of the party who did the shooting; 
and all the circumstances and evidence clearly show that the shoes measured were the 
shoes worn by the defendant on the day and at the time of the shooting. This testimony 
was clearly in rebuttal of defendant's alibi."

        These several bills are clearly insufficient, because they do not show within 
themselves what the evidence in the case was, so that this court can determine therefrom 
whether there was any error by the court in its action. However, each bill as qualified by 
the judge, we think, clearly shows that the testimony was admissible, and the court did 
not err in admitting any of it.

        Appellant's fifth bill complains that the court committed error in charging the jury in 
paragraph 8 as follows: "If you believe from the evidence, beyond a reasonable doubt, 
that the defendant, Bogan Ward, with his malice aforethought at the time and place 
alleged in the indictment, did unlawfully make an assault upon any other person and 
reasonable creature in being, other than Florence Ward, and did shoot at such other 
person with a gun, the same being a deadly weapon, with the intent to kill and murder 
such other person, if any, and you further believe from the evidence, beyond a reasonable 
doubt, that by accident the defendant inflicted upon Florence Ward the injury, if any, 
intended to be inflicted by him upon such other person, then you are instructed that in 
such event the defendant would be as guilty of an assault upon said Florence Ward, if 
guilty at all, as if said assault, if any, had been originally made upon her by him." 
Appellant's complaint of this charge is "that it is not the law of this state, is material error, 
and was calculated to injure the rights of defendant." The court in allowing the bill 
qualifies it as follows: "The evidence in the case showed that defendant was jealous of his 
wife's relation with other men; that he had repeatedly declared his purpose to kill her and 
to kill any other man who showed her attentions; that he carried his gun for that purpose; 
and that four other persons besides her were hit with one or more shot from from the 
same load that struck his wife. (See evidence Florence Ward, Arthur Preston, Willie 
Hunter, and the defendant.) Defendant's defense was that of alibi, and he did not swear 
that he had shot at another than his wife. Defendant's counsel, in the examination of all 
witnesses, in his argument before the court, and in argument to the jury, insisted that no 
one knew whether defendant, if he fired the shot, shot at some one of the other four 
persons who were struck, or at his wife, but contended at all times that defendant did not 
do the shooting. This charge was fully warranted by all the facts in the case, and is the 
law, as enunciated in Richards v. State [35 Tex. Cr. R. 38] 30 S. W. 805, and Smith v. 
State, 95 S. W. 1058."

        The next bill of exceptions is to paragraph 13 of the court's charge (quoting it). It is 
lengthy and unnecessary for us to quote here. By this charge, the court submits in 
appropriate language for the jury to find the defendant guilty of an aggravated assault if 
he intended to shoot some one else other than his wife, and as a matter of fact shot her, 
but did not intend to kill her, simply inflicted a serious bodily injury upon her, and told 
the jury what the penalty for aggravated assault was. The appellant excepted to this 
charge on the following grounds: "That it is not the law of this state, is material error, and 
was calculated to injure the rights of the defendant." The court in allowing the bill 
qualified it as the last one just above.

Page 1112

        The next bill complains that the court refused to give his requested charge to the 
jury, which was as follows: "You are further instructed in this case that if you should 
believe from the evidence that the defendant, Bogan Ward, fired the shot that hit Florence 
Ward, yet if you should believe that said Bogan Ward fired at Colly Livingstone, or any 
other person than Florence Ward, you will find him not guilty; or, if you have a 
reasonable doubt thereof, you will find him not guilty." The court in allowing the bill 
qualified it as follows: "There was no evidence that the defendant shot at Collie 
Livingstone, and the charge was and is on the weight of the evidence, and against the 
weight of authority. See Richards v. State [35 Tex. Cr. R. 38] 30 S. W. 805, and Smith v. 
State, 95 S. W. 1058."

        The complaint of the appellant to the several charges given by the court, and the 
objections thereto by the appellant, clearly were not such as to require this court to review 
them. When error is assigned on the charge of the court, by either a bill of exceptions or 
motion for new trial, the specific error relied upon should be pointed out. It is not 
sufficient to copy the charge complained of, and then object to it, because it is not the law 
of this state, is material error, and was calculated to injure the rights of the defendant, or 
any other such general complaint. Campbell v. State, 15 Tex. App. 506; Thompson v. 
State, 32 Tex. Cr. R. 265, 22 S. W. 979; Reynolds v. State, 17 Tex. App. 413; Garello v. 
State, 31 Tex. Cr. R. 56, 20 S. W. 179; Pollard v. State, 58 Tex. Cr. R. 307, 125 S. W. 
390; Quintana v. State, 29 Tex. App. 401, 16 S. W. 258, 25 Am. St. Rep. 730; Coleman 
v. State, 48 Tex. Cr. R. 343, 88 S. W. 238; White v. State, 52 Tex. Cr. R. 193, 106 S. W. 
1167; Roma v. State, 55 Tex. Cr. R. 344, 116 S. W. 598.

        Even if we could consider the several complaints to these several charges by the 
court, it is our opinion that they correctly enunciate the law applicable to this case. Penal 
Code (old article 695; new article 1125), and cases cited under the new article; Thomas v. 
State, 53 Tex. Cr. R. 272, 109 S. W. 155, 126 Am. St. Rep. 786; Honecutt v. State, 42 
Tex. Cr. R. 130, 57 S. W. 806, 96 Am. St. Rep. 797; Richards v. State, 35 Tex. Cr. R. 38, 
30 S. W. 805; Smith v. State, 95 S. W. 1058.

        There is nothing else material raised by the motion for new trial which it is 
necessary for us to discuss. We have considered all of the complaints, and there being no 
reversible error pointed out the judgment will, in all things, be affirmed.

        DAVIDSON, P. J., absent.

---------------

Notes:


† Rehearing denied.