holding that defendant was not entitled to charge on lesser-included offense of aggravated assault when only evidence was that the victim saw defendant run off with a woman’s purse, the victim gave chase, and the defendant slashed at him with a knife
How later courts described this case
- holding that defendant was not entitled to charge on lesser-included offense of aggravated assault when only evidence was that the victim saw defendant run off with a woman’s purse, the victim gave chase, and the defendant slashed at him with a knife
- explaining that, depending upon the facts proven, aggravated assault can be a lesser included offense of aggravated robbery
- explaining that depending upon facts proven, aggravated assault can be lesser included offense of aggravated robbery
- holding adopted by majority of court in Aguilar v. State, 682 S.W.2d 556 (Tex.Crim.App.1985)
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
Some six months ago, in Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1980), my Brother Dally and I dissented separately against further application of the “guilty only” test of Daywood 1 McBrayer 2 in determining whether a charge on a lesser included offense should be given. However, we were unable to agree on what the proper standard is. He urges adoption of a federal rule 3 whereas I opt for the law that was fully developed and followed in this State long before the pure dicta of Day-wood was turned into conventional cant by rote, Watson, supra, 887-888 .
Now, writing for the Court Panel in this cause, Judge Dally has restated the Sansone rule, which the Court En Banc has just resisted in Watson v. State. Though I respectfully disapprove of the continued adherence to the Daywood/McBrayer test, I cannot agree to adopt the federal Sansone rule. 4
Accordingly, I must dissent.
*446 Before the court en banc.
. Daywood v. State, 157 Tex.Cr.R. 266 , 248 S.W.2d 479 (1952).
. McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974).
. In Sansone v. United States, 380 U.S. 343 , 85 S.Ct. 1004 , 13 L.Ed.2d 882 (1965), the source of the rule advocated by Judge Dally, Justice Goldberg explained that it is a creature of judicial sanction of distinctive legislative policy considerations, id. 350, n. 6 , 85 S.Ct. 1009 , n. 6: “This Court has long recognized that to hold otherwise would only invite the jury to pick between the felony and the misdemeanor so as to determine the punishment, a duty Congress has traditionally left to the judge.” He went on to point out that the “general principle” was particularly applicable in Sansone , a willful tax evasion case, since legislative history of the statutes reflected a congressional objective that judges be enabled “to better fix the penalties to fit the circumstances.”
Indeed, the most recent authority cited for the federal rule stated by Justice Goldberg, Berra v. United States, 351 U.S. 131 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1958), is also a federal tax evasion prosecution in which the offense charged and that asserted to be a lesser included one “covered precisely the same ground.” In deciding the contention in Berra , the Supreme Court insisted, 351 U.S. at 134-135 , 76 S.Ct. at 687-688 , on the strength of the case against jury nullification made by the majority in Sparf v. United States, 156 U.S. 51, 63-64 , 15 S.Ct. 273 , 39 L.Ed. 343 (1885), that “[t]he role of the jury in a federal criminal case is to decide only the issues of fact,” and any questions “the assumed overlapping” of the two offenses raised “were questions of law for the court.” The Sparf Court for its part, voiced similar insistences but, curiously enough, sounds much like Daywood/McBrayer in saying, “Upon a careful scrutiny of the evidence, we cannot find any ground whatever upon which the jury could properly have reached the conclusion that the defendant Hansen was only guilty of an offence [sic] included in the one charged.... [emphasis mine].”
.Contemporaneously with Sparf , however, the Supreme court decided Stevenson v. United States, 162 U.S. 313 , 16 S.Ct. 839 , 40 L.Ed. 980 (1896) — to this one Justice Goldberg did not allude. It arose in the Eastern District of Texas on an indictment for murder, and at the close of the evidence Stevenson requested a jury charge on manslaughter but was refused. Reversing on that ground alone, a unanimous Supreme Court analyzed the problem as follows:
“The question is whether the court erred in refusing this request. The evidence as to manslaughter need not be uncontradicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder. * * * The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in self defence [sic], and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court.”
It then found that there was “enough, in any view that could be taken of such evidence, to require the submission of the question of man *446 slaughter,” but did not “intimate an opinion as to what the jury ought to find upon such evidence, taken in connection with all the other evidence, but it seems to us entirely clear that there was enough to ask the jury to decide whether the killing was ... murder or manslaughter.” This, I respectfully submit, was the law in Texas prior to the advent of Day-wood/McBrayer. See, e. g., Liskosski v. State, 23 Cr.R. 165, 3 S.W. 696 (1886), quoted in my dissenting opinion in Watson, supra.