
    McGREW v. STATE.
    (No. 3360.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1914.)
    Homicide (§ 257) — Evidence—Sufficiency. Evidence held to sustain conviction of assault to murder. ■ '
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dee. Dig. § 257.]
    Appeal from District Court, Lamar County ; Ben I-I. Denton, Judge. ■
    Bud McGrew was convicted of assault to murder, and appeals.
    Affirmed.
    Sturgeon & Ownby, of Paris, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of assault to murder J. D. Jones, and his penalty was assessed at the' lowest authorized by law. The only question is whether or not the evidence is sufficient to sustain the verdict.

Appellant was a young man 25 or 26 years old; lived with his father, Will McGrew, on his father’s farm. The farms of Will Mc-Grew and said Jones adjoined. Shortly before the assault, trouble arose between Jones and Will McGrew about their dividing line. McGrew claimed some of the land in Jones’ inelosure, and had put up thereon several panels of wire fence. After dinner on the day of the assault, Jones took his ordinary claw hammer and wire clippers out on his place to fix his fence. While thus out he cut the wires of the fence Will McGrew had placed in his inclosure and on land claimed by him. Appellant and his father that day were at work plowing in his father’s field. They had just returned from dinner, and were hitching up their teams to their plows to begin work. Jones called Will McGrew to him from some 50 yards distant, or farther, and when McGrew got to him he told him that he had cut hell out of that wire fence which he had placed on his land, and that if he wanted the wire to get it that day, and if he did not get it that day not to put his foot over there any other time. There was some further conversation between Jones and Will McGrew at the time. Then Jones further testified on direct examination:

“I was talking — had been talking — to Will McGrew, and had got about through with him, and Bud McGrew put in and said something. I told him, ‘None of his business’ and to shut his mouth, and he got mighty mad, and said not to cuss him; and I did cuss him, and called him a son of a bitch, and Bud run around like this behind his daddy, and says, ‘You are another one.’ Well, I started around after him, and as I started around Will McGrew moved up, and as I stopped, and about that time, Bud McGrew reached over from behind Will McGrew with a pole about 8 or 10 feet long, right over —nearly over — Will McGrew’s shoulders, and struck me on the head. I sunk to my knees, and Will McGrew laid me down, and says, ‘That will do.’ * * * Bud McGrew was in something like 5 or 6 feet of me when he struck me, and Will McGrew was right in front of me and almost against me. * * * Well, now, as to what Bud McGrew said, I can’t say. I just remember he put in and made me mad, and 1 told him to shut up. I don’t know what Bud said that day before or in regard to the fence at the start.”

On cross-examination he testified:

“I don’t think 'I cursed on the start, gentlemen, because I am not a swearing man. I don’t swear, only on extreme provocations; however, I may have sworn a little before it was over with. I cursed Bud, and called him a son of a bitch, before he hit me. I suppose I still had my hammer in my hand when I was cursing Bud. I don’t remember putting it down. Q. Did you follow him any after you called him a son of a bitch? A. Not until he called me a son of a bitch. I never started until after he called me a son of a bitch. I did not at any time malee any attempt to hit either Bud or Will McGrew. I stated on the examining trial in this case: ‘No; I was not close enough to hit Bud, and was not trying to hit Will.’ Bud McGrew or Will McGrew, either one, was not saying anything to me until I went down into the field where they were at work and began this trouble. Q. Did you state on the examining trial, in answer to this question, ‘Did you try to hit Bud?’ ‘No, sir; I could not get close enough to him.’ A. Yes, sir. Q. Did you state on the examining trial, ‘When you started after him, what did you have in your hand?’ If you didn’t answer, T had a hammer,’ and- is that true now? A. I don’t remember whether I said I had a hammer or not, positively. I am not positive about the hammer, I am just supposing I had the hammer, because I don’t remember of putting it down. The hammer was what I would suppose about a pound claw hammer, and the handle was 12 or 14 inches long, something like that — an ordinary claw hammer. Q. Did you not state on the examining trial, T don’t know what I would have done with the hammer if I had got to him.’ Do you still make the statement? A. Well, I don’t remember, as regard to tlae hammer, that question as to what I would have done if I had got to him. I don’t remember about the hammer being in question; anyhow, if it was, I stated I didn’t know, and I still make that same statement.”

On recross-examination he testified:

“Q. Did you call them as you went over to where they were? A. No; I didn’t call them at all. I called "Will; but T didn’t go over to where they were. They came to where I was.”

The testimony of appellant and his father would have justified the jury to acquit him because of his claimed self-defense; but this was fairly and fully submitted by the court to the jury, and they were told that if appellant struck Jones in self-defense, or they had a reasonable doubt of it, to acquit him of assault to murder. He also submitted aggravated assault, and told the jury that if they had a reasonable doubt whether or not appellant was guilty of an assault with intent to murder, or an aggravated assault, to give him the benefit of the doubt, and not find him guilty of an assault with intent to murder. No complaint was made of the charge of the court at the time of the trial.

Another witness describes the stick with which appellant struck Jones as about 2% inches in diameter, 6 or 7 feet long, and the heart of a post oak. Will McGrey called it ,a rail. Immediately after appellant struck the deceased, he left, and tried to escape by running out of the state, but was followed several miles by an officer, and caught just before he got out of the state. The lick was on the left side of Jones’ head, just above his ear, cut a gash about three inches long, and rendered Jones unconscious for several days. They thought he would die from the effects of it. He had physicians attending him for a long time, was in bed two or three weeks, and his hearing entirely destroyed.

The parties were before the court and jury, who saw and heard them testify. There is no indication from this record that the appellant did not have a fair and impartial trial. Under -the circumstances, we cannot say that the evidence did not sustain the verdict, and we cannot, therefore, reverse the case.

The judgment is affirmed.  