Beasley v. State , 84 Tex. Crim. 486 ( 1919 )


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  • The appellant was indicted for an aggravated assault charged to have been committed upon H.S. Cook. It was alleged that appellant used his fist, being a robust person, and Cook a decrepit one; also that serious bodily injury was inflicted. He was convicted of a simple assault.

    Cook testified that he was sixty-four years of age, and appellant was a young boy, and that he was no match for appellant in a fight; also that the licks inflicted produced black eyes and a broken nose. He denied making any effort to strike the appellant with a rock or with wire pliers. An eyewitness testified that his attention was first attracted by hearing a noise, and turning he saw Cook hitting appellant. Several blows were passed and Cook was knocked down; that appellant said he *Page 492 would not hit him while he was down; that Cook then got up and picked up a large rock; that appellant then ran into him, and they fell together, rolling over, Cook getting on top with the rock in his hand; that in some way the rock was dropped; they got on their feet, and the fight ended. He said that nothing was used by appellant except his fist. He was wearing gloves and did not pull them off. There was evidence introduced that appellant was weakened from a spell of measles, and that he was not as strong built a person as the prosecuting witness Cook, this evidence being from a doctor who attended appellant.

    Appellant testified that he was eighteen years of age, weighed about 140 pounds; that he was weakly, and had suffered for years from lumbago. He said that Cook had been talking about him, and he approached him for an understanding or discussion of the matter; that he, appellant, took hold of Cook's shoulder and turned him around facing him, appellant, when Cook hit him; that a number of licks followed; Cook was knocked down; that he picked up a large rock and appellant ran and fell; that after he fell Cook got on top of him with the rock in his hand, cursing and saying, "I have you," and that he caught Cook's hand and the rock fell by the side of his head; that he managed to get on his feet, and they both got up, and were separated by Whitson, who was present. That the same evening he went to see the justice of the peace, Caperton. Not finding him at home, he went to where he was sitting up with a sick man. Appellant says he related what had happened, stating he had had a fist fight, and he wanted to pay a fine; that Caperton called another party who was present to one side and talked to him, and returning told appellant his fine would be $8.70, which he paid at once; that he simply submitted the case to the justice of the peace and paid all that was demanded, the justice stating that he was taking a plea of guilty to a simple assault.

    Caperton verified the fact that appellant came to him at about 11 o'clock at night, where he was sitting up with a man who was sick, and stated that he and Cook had had a fist fight, and that he wanted to submit his case and pay a fine. Caperton said: "I called Walter Bradley off to one side and he told me about it and he informed me that it was a fist fight. I went back to the boy and told him I would charge him with a fist fight, a simple assault, and that his fine would be $8.70. He paid me the money and when I went home I docketed the case and entered up the judgment." The judgment entered was introduced and was a judgment finding the appellant guilty of a simple assault upon H.S. Cook, and assessing his fine at $1 and costs, amounting to $8.70, which the judgment recited had been paid. The justice said that he did not know that $5 was the lowest fine for simple assault; that he had been in the habit of entering $1 for that offense, but that he would be glad to reform and change the judgment with the permission of the court. He said he wanted to give the lowest fine, and had he known that he might have fined him $1 for an affray, he would have charged him with an affray and taken the plea for that offense. *Page 493

    On this state of facts the appellant interposed in due time a plea of former conviction of the offense of simple assault, and his complaint here is the failure of the court to sustain his plea. In our opinion the court should have sustained it. His plea of guilty of a simple assault would not bar his conviction of an aggravated assault. If on the trial the court had believed the statement of the prosecuting witness and entered a judgment finding him guilty of an aggravated assault on account of the serious bodily injury, the appellant would have had no just ground of complaint. The court, however, appears to have rejected that part of the prosecuting witness' testimony which would have sustained a conviction for aggravated assault, and to have accepted the statement of appellant and the eyewitness who testified, and upon that and the other testimony in the case to have found that the offense committed was not an aggravated assault but a simple assault only.

    We find no suggestion of fraud on the part of appellant, nor for that matter on the part of the justice of the peace. As we understand the record, appellant's statement to the justice of the peace as to the facts was substantially like his testimony given upon the trial which, according to the judgment of the court, exculpated him so far as the charge of aggravated assault was involved. He having made a true statement to the justice of the peace, and the justice of the peace having stated that the charge would be a simple assault, and the amount necessary to discharge the judgment would be $8.70, without having told appellant the amount of the fine and costs separately, or that he was going to enter a fine of $1, the appellant would not be responsible for the fact that the justice of the peace had made a mistake as to the amount of the fine when he subsequently entered the judgment. The judgment entered adjudges the appellant guilty of a simple assault upon H.S. Cook. After he has discharged that judgment, the one appealed from finds him guilty of a simple assault for the same offense. He is thus twice convicted of the same offense, and will suffer the penalties for each of the convictions unless this judgment is reversed.

    The case of Fundeburk v. State, 64 S.W. Rep., 1059, which was not referred to in the original opinion, we think, states principles and refers to decisions of this court which make it imperative that the motion for rehearing be granted, the affirmance set aside, and the cause reversed and remanded.

    Reversed and remanded.

Document Info

Docket Number: No. 4329.

Citation Numbers: 208 S.W. 538, 84 Tex. Crim. 486

Judges: MORROW, JUDGE.

Filed Date: 1/29/1919

Precedential Status: Precedential

Modified Date: 1/13/2023