Clark Farrar v. The State, 29 Tex. Ct. App. 250

WILLSON, Judge. This being a prosecution and conviction for assault with intent to murder, a material inquiry and issue in the case was-whether the defendant went to the field where the injured party was, and where the difficulty occurred, with innocent intent or with the evil intent of provoking a difficulty with said injured party.

Upon this issue the defendant offered to prove by one Truitt that said Truitt advised him to go to said field where Corry, the injured party, was. gathering corn, and help said Corry gather corn, and defendant proposed to supplement this proof by proof that he immediately acted upon said advice, going at once to where said Corry was, and for the purpose of helping said Oorry to gather corn. This proposed testimony was, upon objection made thereto by the State, rejected, and defendant saved a bill of exception to the ruling.

It is contended by the Assistant Attorney-General that the bill of exception is defective and should not be considered, because it does not specifically state the purpose for which said testimony was offered and does not show the relevancy and materiality of said testimony. We think the bill is sufficiently explicit and full, stating all the facts essential to enable this court to revise the said ruling.

We think the bill shows that the offered testimony was relevan j;, material to the defendant, and admissible for the purpose of showing that defendant went to where Oorry was with innocent intent and for a lawful purpose. It was testimony explanatory of defendant’s act of going to where Corry was gathering corn. It was res gestee of that act, and tended to show that said act was innocent and lawful. Irby v. The State, 25 Texas Ct. App., 203; Gillian v. The State, 3 Texas Ct. App., 132; Williams v. The State, 4 Texas Ct. App., 5.

It was material error to reject said testimony in view of the evidence upon which this conviction is based. With respect to the charge of the court, we think it is sufficient and correct. It presents the law of the case substantially, and while it is not in some particulars in the exact language of precedents, it is in language which conveys the meaning of the law and which a jury would not be likely to misconstrue. The instruction requested by the defendant was correct and appropriate, but was, we think, contained substantially in the main charge, and it was not error to refuse to give it.

Because the court erred in rejecting the proposed testimony of the witness Truitt, the judgment is reversed and the cause is remanded. Reversed and remanded. Judges all present and concurring.