Davis v. State (5 S.W.2d 987, 1928)

MORROW, P. J.

The offense is assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of five years.

The evidence is quite sufficient to support the conviction. In his testimony appellant declared that there had been a difficulty on the day preceding that upon which the present offense is charged- to have taken place. According to the appellant, in the previous difficulty Will Evans, the injured party, was the aggressor and wanted to fight. When the appellant declined to fight, Evans said that he would knock the appellant’s brains out before night. On the next day, according to the appellant, while he was engaged at work, Evans interfered, struck him with a rope, and with an oath said: “I told you I was going to run you off from here.” These acts of Evans were accompanied by a demonstration; that is, by running bis band in bis pocket. Knowing that Evans carried a knife, tbe appellant interpreted tbe act mentioned as evidencing an intention to carry tbe previous threats into execution.

Tbe court instructed tbe jury on tbe law of self-defense, and in a separate paragraph instructed them upon tbe law of threats as set forth in article 1258, P. C. 1925, in which it is said:

“In every instance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased. Such evidence shall extend only to an inquiry as to whether the deceased was a man of violent or dangerous character, or a man of kind and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made:”

On tbe trial an inquiry was made touching tbe general reputation of the injured party as a violent and dangerous man, or to tbe contrary. Tbe complaint of tbe receipt of this testimony is without merit. It was admissible under tbe- statute. Appellant bad testified to threats and received tbe benefit of it in tbe charge of the court. By virtue of tbe same statute it was competent to prove ■the general reputation of tbe injured party in tbe particular named; that is, tbe statute applies to an assault with intent to murder, as well as to a case of homicide. See article 1258, Vernon’s Ann. Tex. P. C. 1925, vol. 2, p. 491, noté 3; also Bingham v. State, 6 Tex. App. 169; Smith v. State, 55 Tex. Cr. R. 628, 118 S. W. 145; Bussey v. State, 69 Tex. Cr. R. 98, 153 S. W. 873.

Tbe judgment is affirmed.

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