BROOKS J. Appellant was convicted of assault with Intent to murder Henry Pipkins and his punishment assessed at confinement in the penitentiary for a term of two years hence this appeal.
Appellant and Will Wilson came to the house of Margaret Pipkins on September 25 1898, riding.
At the time of their arrival the injured party, Henry Pipkins was tussling over the possession of a mule with one Elzle Scroggins. Wilson said to Pipkins "Turn the mule loose," and grabbed Pipkins by the arm, tearing his shirt sleeve.
Appellant then said to Wilson "Take this pistol and make him turn loose, for I know you will use it," whereupon Wilson took the pistol from appellant and shot at Pipkins. Pipkins turned the mule loose,c and ran In the house, which was about 30 or 40 steps away.
Wilson then went around to the back of the house, his pistol In hand, and came Into the house through the back door. Pipkins ran out and went home.
Various witnesses for the state testify to these facts, and this theory Is denied by appellant. After a very careful scrutiny of the court's charge, we are constrained to say that It is admirably drawn, and covers every legitimate issue raised by the evidence.
Martin v State, 35 Tex. App 576, 8 S. W. 682. Appellant, in his motion for new trial, attached thereto the affidavit of his attorney, WR Anderson; setting up what purports to be a statement of how said attorney understood the witnesses to state the facts prior to the trial, and during the course of the trial the witnesses named In said affidavit swore to a converse statement to that which the affiant says they made to him.
After said witnesses had testified, appellant's attorney was placed upon the stand, and testified to the facts as he understood the same had been detailed to him by said witnesses.
There is nothing in the record to show that he asked the court to postpone the trial on the ground of surprise in order that he might obtain other witnesses; and while It Is true he says that some witnesses testified in another trial, the companion case to this the contrary of what said witnesses testified in this trial yet he fails to disclose the name of such witnesses or by whom he expected to contradict said witnesses.
There are none of the elements of surprise, as contemplated by the statute and decisions of this state authorizing a new trial. No error appearing in the record, the judgment Is affirmed.
Henry Pipkins- is the older brother of my great-grandfather, the late Marcellus Pipkins, Sr (1884-1972).
Henry died in 1918, according to my Great Aunts & Uncles their father, Marcellus mentioned Henry frequently when they were growing up. My grandfather and his siblings were close to Henry's son Jim Pipkins.