
    FREEMAN v. STATE.
    (No. 3690.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Criminal Law &wkey;368 — Evidence — Res Gestae.
    On a trial for assault with intent to murder, evidence that, while defendant and another were assaulting the prosecuting witness, a third person told them not to do it, was admissible as res gestse.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. &wkey;>368.]
    2. Homicide c&wkey;>257 — Assault to Mubdee— Acts Constituting.
    On a trial for assault with intent to murder, the evidence was sufficient to show that F., in a drunken condition, went where defendant and others wore working; that his conduct and language to them were such as to be considered insulting; that some of them attacked him, and he hastily retreated; that, while they were pursuing him, defendant and another of his assailants threw rocks or bricks at him, one or more of which struck him on the head, felling him to the ground, and breaking or crushing his skull; that he lay there helpless until taken to the hospital by an officer; that it was several days before he recovered consciousness, and much longer before he was able to leave the hospital. Held, that the evidence was sufficient to support a conviction for assault with intent to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. &wkey;257.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    R. Freeman was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Clem C. Countess, of Belton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of assault with intent to murder and assessed the lowest punishment.

He has only one bill of exception. The substance of it in full is: That the state’s attorney asked one witness, “State to the jury, what, if anything, Mr. Thrillkill said to Stephens and Freeman at the very time they were throwing at Fagg?” and the witness answered : “He said, ‘Ernest, don’t do that. Raleigh, don’t do that.’ ” And he asked another witness “Didn’t you hear Thrillkill tell Stephens don’t do that, and Raleigh don’t do that?” and the witness answered, “Yes.” His objection to this was it was irrelevant, immaterial, and prejudicial and inadmissible because hearsay. We think it was admissible as res gestee. It was addressed to appellant, and the other party Stephens, “at the very time they were throwing at Fagg,” the assaulted party, and at the very time the offense charged was being committed by them. Branch, Cr. Law, § 339, p. 198.

Appellant’s able attorney made a forcible and earnest oral argument, when this case was submitted, and, in addition, has filed a lengthy brief, which we have fully considered, ingeniously contending that the evidence was insufficient to show his intention to murder, that the assault was with a deadly vveapon, that he participated in the assault, that the injuries of the assaulted party were caused by the assault, or that he was in a position to inflict them. We have carefully studied the whole evidence, and think none of his contentions are tenable. The testimony on some points is conflicting, but we think amply sufficient to sustain the verdict. It was sufficient to show, and cause the jury to believe, that Fagg, the assaulted party, in a drunken condition went into the back part of a hotel where appellant, said Stephens, and others were employed and at work; that his conduct and language to them was such as to be considered insulting; that some of them attacked him, and he hastily retreated out of the hotel through the back premises across an alley; that, while they were pursuing him and he running from them they each, appellant and Stephens threw rocks or bricks at him, one or more of which struck him in the head felling him to the ground, breaking or crushing his skull; that he lay there helpless and unconscious until later taken by an officer to a hospital; that it was several days before he recovered consciousness, and much longer before he was able to leave the hospital.

The court gave a correct charge to which there is no exception, submitting every issue to the jury requiring them to find every fact essential to his guilt beyond a reasonable doubt, before they could convict.

The judgment is affirmed.  