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21 Tex. Ct. App. 611

Bramlette v. State

Court of Appeals of Texas

Decided June 23, 1886

Court of Appeals of Texas · decided 1886-06-23

<p>Appeal from the District Court of Bexar. Tried below before the Hon. Gr. H. Noonan.</p> <p>The conviction in this case was • for an assault with intent to murder one S. J. Bramlette. The penalty assessed against the appellant was a term of two years in the penitentiary. •</p> <p>Mrs. S. J. Bramlette, the wife of the defendant, was the first witness for the State. She stated that she and the defendant had reconciled their troubles and had agreed to live together as soon as defendant could get out of this prosecution. She therefore declined, to testify against him. Defendant’s counsel objected to the further examination of the witness on behalf of the State. The court overruled the objection, and instructed the witness that she would be required to testify. Witness then testified that she saw the defendant on Christmas day, 1884. Witness next saw him after his arrest at Kerrville, and his return to San Antonio. Defendant came home under the influence of liquor on the said Christmas day, 1884, He wept copiously, was much excited, and talked to the children, of which he and witness had four, aged respectively four, six, nine, and twelve years. He said that he wanted to take the children, as witness was unable to support them. Witness replied that he could take the two boys, but that she would keep the two girls. Defendant did not accuse witness of infidelity. He did not say that he wanted all of the children, but witness understood his demand to include them all. A dispute about the custody of the children arose between witness and defendant, and the latter became excited. He brought a pistol with him to the house, and the witness was shot by a ball from that pistol. In the course of the talk between the witness and the defendant, the defendant took the pistol from the side pocket of his over coat with his left hand and passed it to his right hand. Some threads and wadding from his over coat pocket adhered to the pistol, and while defendant was rubbing them off with his left hand the pistol was discharged, the ball striking the witness on the head, making a scalp wound. Witness could not say that the pistol was fired intentionally. She Thought it was discharged by accident. At all events, the defendant did not point the pistol at the wiTness with his hand, and, besides, it was discharged while he was rubbing the threads off it with his left hand. He made no effort to fire a second shot, although no one was present in the room but he and the witness. Witness walked out of her own house to a neighbor’s to secure treatment, and to ascertain the nature of the wound. When he drew his pistol the defendant remarked: “We had better all be dead if we can get along no better than we do.” Witness did not know where the defendant went after the pistol was discharged. Witness corresponded with the defendant after the shooting, and they had perfected their arrangements to live together again. Witness had made no arrangements with defendant not to testify in this case, but she did not want him convicted. She needed his help in the care of the children and herself, and wanted to live with him. She sent for Mr. Shields after defendant’s arrest at Kerrville, but before his return to San Antonio in custody, and told Shields that she wanted her husband acquitted, as she wanted to live with him.</p> <p>Doctor Braunagel testified, for the State, that he treated Mrs. Bramlette for the wound in her head which was inflicted on Christmas day, 1884. Had the ball gone straight through her head instead of glancing off, it would, most probably, have killed her.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1886-06-23

How this case has been cited

Cited by 5 later decisions — most recently May 1967

5 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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White, Presiding Judge.

¶1This appeal is from a conviction for an assault with intent to murder. The alleged injured party was the wife of the appellant.

¶21. On the trial the prosecution called defendant’s wife as a witness upon the stand, who, after being duly sworn, stated that she was the wife of the defendant,' was unwilling to testify against her husband, and refused to do so. Defendant, by counsel, 'objected to witness testifying for the State, which objection was overruled, and the witness was instructed that she must testify, and directed to proceed with her testimony. Defendant saved his exception.

¶3An exception to the rule that the husband and wife are incompetent to testify against each other is in the case of “a criminal prosecution for an offense committed by one against the other.” If the offense is one committed by one against the other, then the injured party is competent to testify as a witness. If competent to testify, then such party can be forced to testify, as any other witness may be. (Dumas v. The State, 14 Texas Ct. App., 465.)

¶4A similar question upon a similar state of facts arose in the case of Turner v. The State, 60 Mississippi,-351, and it was held that a wife is a competent witness against her husband in a prosecution for an assault and battery committed by him on her person, although she objects to testifying in the case, and that if it was the wife’s privilege to testify or not, as she might elect, it was clear that appellant could not assign for error the action of the court in compelling her to give evidence over her objection; or if the action of the court be error, it is the privilege of the witness, and not the legal right or immunity of defendant, which is impaired. (Citing 1 Greenl. Ev., sec. 45; 2 Phil. Ev., 941; Roscoe’s Crim. Ev., 146; and Reg. v. Kingslake, 11 Cobb C. C., 499.)

¶5In such a case, it is said, that it is for the injury to the public committed upon it through the person of the wife, that the husband is punished. It is the offense against the public for which he is tried; he is the offender of the public, and not the wife alone, and she is competent to testify as a witness for the public, and not as a witness for herself. It is a competency not to be waived by her, or affected by her desires or fears. The court did not err in its ruling upon this question.

*619Opinion delivered June 23, 1886.

¶62. The second bill of exceptions is untenable. The court sufficiently defines “malice” in the sixth paragraph of its charge to the jury.. (See Willson’s Crim. Forms, sec. 708, p. 332.)

¶73. The third bill of exceptions was to the omission of the court to submit in its charge to the jury the issues of aggravated assault, and simple assault and battery, and the law applicable thereto. In answer to this exception we say there was no question of aggravated or simple assault and battery legitimately arising upon the facts proved.

¶84. The fourth bill of exception complains of an omission of the court to submit to the jury the law with regard to intoxication of defendant at the time of the alleged assault, and how far it should be considered as affecting his mental condition and ability to form and entertain a criminal intent. In the seventh and eighth paragraphs of the general charge, the court sufficiently instructed the jury with regard to the specific intent essential to the commission of the crime, and there was no additional instruction asked in behalf of defendant with regard to the effect of drunkenness upon his mental condition. If defendant desired the jury should be informed as to the law bearing upon this question, he should have asked additional instructions covering the supposed defects or omissions in the general charge.

¶95. The fifth bill of exceptions is contradicted by the seventh and e ighth paragraphs of the charge of the court to the jury.

¶106. The sixth bill of exceptions is taken to the failure of the court to charge the reasonable doubt. The charge of the court was substantially, if not literally, in the language of the statute. (Code Crim. Proc., Art. 727.) This is not only all that the court is required to do, but is exactly what it should do in charging the reasonable doubt. (Massey v. The State, 7 Texas Ct. App., 563; Ham v. The State, 4 Texas Ct. App., 464; Walker v. The State, 13 Texas Ct. App., 618; Fury v. The State, 8 Texas Ct. App., 471; Schultz v. The State, 20 Texas Ct. App., 316.)

¶117. The seventh bill of exceptions is to the overruling of defendant’s motion for a new trial. This motion contained fifteen specific grounds, most of which have been already discussed in discussing the defendant’s bills of exceptions above, and none of the remaining grounds call for special notice at our hands.

¶12Ho reversible error having been found in the record, the judgment is affirmed.

¶13 Affirmed.

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