Haley v. State (12 S.W.2d 225, 1928)

MARTIN, X

Offense, assault to murder; penalty, two years in tbe penitentiary.

The appellant with bis two brothers attended a dance in Gillespie county, and there became engaged in an altercation with a deputy sheriff, arising out of the drunkenness of appellant’s brother. During such altercation appellant was hit over the head with a pair of handcuffs by the deputy sheriff, an as true. This -was clearly on the weight of the evidence, and erroneous. Minor v. State, 108 Tex. Cr. R. 413, 1 S.W.(2d) 315, and authorities there cited.

Bill of exception No. 6 shows that the court, upon objections from the district attorney that same was irrelevant and immaterial, excluded the offered testimony of the-witness Ed Carver, to the effect that immediately after the alleged cutting he observed the appellant in a dazed condition with his face covered with blood coming from the blow on his head, and that he was talking in an incoherent manner. This testimony tended to prove the very defensive issue submitted by the court in his charge. We are unable to understand this bill of exception. Either the bill must have been inadvertently signed, or the ruling inadvertently made, as the statement of facts shows that this witness and others testified to substantially the same facts. In view of this, ho error is presented, and we mention it only in passing.

This disposes of all the points briefed by appellant except that of the court’s action in refusing to grant a motion for continuance, which, owing to the disposition we make of the ease, we deem unnecessary to discuss.

For the errors indicated, the judgment is reversed, and cause remanded.

PER OURIAM.

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. .