Tully v. State (128 Tex. Crim. 170, 1935)

CHRISTIAN, Judge.

The offense is assault with intent to murder; the punishment, confinement in the penitentiary for nine years.

The opinion on a former appeal is found reported in 67 S. W., Second Series, at page 272 (125 Texas Grim. Rep., 239). The testimony adduced on the instant trial was substantially the same as that embraced in the record on the former appeal, except that the statement of facts in the present record shows an additional statement by the injured party, Eugene Smith, which we quote in part, as follows:

“I had been held up and robbed of some money prior to the time that this shot was fired out there that night. It was on the 18th night of May, 1982, that I was robbed. * * * Three men took part in that robbery. My brother George was with me at the time it happened. Just he and I lived there at that time. All three of those parties come into the house after so long a time and just one come in the house at first. I have identified one of the parties since that time, however, this defendant isn’t the one I identified. It was dark in the house when these other men come in and it was dark on the outside, no light only a flash light. And also one of the men wore a mask and of course I couldn’t tell nothing about him; he was a tolerably heavy set man. I suppose he was five feet seven or eight inches tall. The make-up of the man fills the bill pretty well, but I couldn’t identify that (referring to appellant) as being the man at all. Yes, sir, I couldn’t identify that as being the man at all, although his make-up fills the bill pretty good. When these three men left my place that night they robbed me they said something to me about the time they left. They marched us out in the road and to this mail box and walked right backwards and held guns on us until they