King v. State

312 S.W.2d 677 (1958)

Isaac KING, Appellant, v. The STATE of Texas, Appellee.

No. 29780.

Court of Criminal Appeals of Texas.

May 7, 1958.

J. P. Hart, J. Hudson Moyer, La Grange, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for assault with intent to murder with malice; the punishment, 5 years.

The sufficiency of the evidence to support the conviction is challenged.

The testimony of the state shows that Deputy Sheriff Nagel went to appellant's one room rural home to investigate a complaint that appellant had made some unwanted visits to a married man's home in the community. He had no warrant of arrest for appellant and did not go to arrest him but to talk with him and warn him to stay away from the neighbor's home. Appellant was in his house when Officer Nagel arrived; refused to admit him, and also refused to leave the house; talked as if he "didn't have the right sense" or was "cracking up," indirectly threatened the neighbor and laughed. Officer Nagel then left and radioed his office for assistance. Three deputy sheriffs soon arrived without a warrant and the four drove to appellant's place and stopped about 25 yards from his house. At this time appellant came out of the house with a rifle, and the officers called to him to drop the rifle and come to them, that they wanted to talk with him. Appellant then turned and ran around his house, and the officers, two on each side of the house, ran toward him. When appellant got around the house he turned as he ran and shot his rifle and the officers heard the bullet "whistle" by them, then appellant ran toward a pasture and appeared to be reloading the rifle as he ran. When he was about 70 yards away, one of the officers shot him in the back with a shot gun loaded with buckshot, striking him from the hips down, and when they caught him after a chase of about 75 yards he was trying to reload the rifle.

Appellant did not testify and called only one witness who testified in support of his application for suspended sentence.

From a careful consideration of these facts, we are unable to reach the conclusion *678 that they are sufficient to show appellant guilty of the offense of assault with intent to murder with malice.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.