
    THUROGOOD v. STATE.
    (No. 5748.)
    (Court of Criminal Appeals of Texas.
    April 7, 1920.)
    1. Assault and battery &wkey;>54 — Homicide <&wkey; 87 — Malice aforethought necessary in assault to murder; otherwise, crime is aggravated assault.
    If defendant was not actuated by malice aforethought, he was not guilty of assault with intent to murder; if he had the specific intent to kill under circumstances that would have constituted manslaughter, his assault, which failed to kill, did not constitute assault to murder, but was an aggravated assault.
    2. Assault and battery <@=354 — Homicide <@=397 —Firing in defense of friend not an assault to murder.
    If defendant negro fired upon officers under the defensive theory, to protect his friend from an assault made on him by either or both officers, defendant was not guilty of assault with intent to murder, though he may have fired too quickly, or have fired under circumstances showing no deliberation, which may constitute aggravated assault.
    3. Homicide &wkey;>310(2) — Evidence held to call for instruction-on aggravated assault.
    In prosecution of a negro for assault to murder a white man, who, with others, was searching the premises of his friend for stolen hogs, in view of circumstances and evidence, held, that trial court should have instructed at defendant’s request on issue of aggravated assault.
    4. Criminal law &wkey;>770(2) — Instructions must be given on issue from whatever testimony raised.
    From whatever testimony an issue may be raised, if it is in the case, appropriate instructions must be given.
    Appeal from District Court, San Jacinto County; J. L. Manry, Judge.
    Alf- Tliurogood was convicted of assault to murder, and appeals.
    Reversed, and cause remanded.
    J. M. Hansbro, of Cold Springs, and Earle Adams, of Crockett, for appellant.
    Alvin M. Owsley, Asst Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to murder, and given two years in the penitentiary. .

The evidence discloses that there was a question of ownership of hogs arising between Collie Griffin, a negro, and A. B. Knight, a white man. Griffin killed a couple of hogs, which were claimed by Knight as his property. An investigation of the matter was instituted, and on the morning of the trouble evidenced by this record five white men — two being officers, who summoned two other white men, and these four, accompanied by Knight — went to the residence of Griffin in reference to the hogs.- At Griffin’s residence was himself, his wife, an old negro woman, the grandmother of appellant, appellant, and a negro named White. When the white men came, Griffin was informed by one of the officers of their mission, and the further fact that they had papers authorizing them to investigate his premises. He told them the papers were unnecessary, that if they wanted to examine his premises they could do so with or without the papers, and immediately accompanied one of the officers into his smokehouse; the other white men following. Griffin and Officer Dolive, after being in the smokehouse a little while, looking; at the hogs, came out. The alleged assaulted party in this case, Williams, was standing by. the three men standing within three or four feet of each other, when Dolive informed Griffin that he wanted to search his person. To this Griffin demurred, remarking, “Now here.” Some of the witnesses testified that he holloed out, “Get your guns, boys!” oy words to that effect. This was denied by oth er witnesses.

The state’s theory was that, when Dolive informed Griffin of his purpose to- search him, Griffin demurred and reached for his pistol. When this was done, Williams and Dolive reached for and drew their pistols. The defensive theory of that phase of the case war that the officers reached for and drew their pistols first, and that Griffin then reached for his and the shooting began. The manner of the shooting and number of shots is widely variant under the testimony. From the testimony Williams may have shot first, or Do-live first, or Griffin first, and the state’s testimony indicates that appellant, who was standing on the gallery of the residence, eight or ten feet from where the three parties were, fired the first shot. These were issues shown by the evidence. The defensive evidence was that appellant did not fire; that when the shooting began he ran in the house, and was standing in the room by his old grandmother, and did not engage in the shooting, and that the shooting was done by Griffin and White. These two were negroes, as was appellant. All the others engaged in the trouble were the five white men.

Just what was the purpose of Dolive in wanting to search Griffin is not shown or disclosed by the evidence. It is shown that Griffin had a pistol on his person, but the officers had no authority to take that from him. He was not violating the law. He was not arrested. He was on his own premises, and had a right to have his pistol. Griffin was the only one of the parties who received a wound. He was shot in one arm and dropped his. pistol, which was gotten by one of the officers, who kept it, and had it, and offered to make profert of it at the trial. There is an issue as to who fired the first shot, and who was the occasion of the first shot being fired. It is asserted upon one side, and denied upon the other, that appellant fired or had anything to with the shooting. He denies it, and other evidence denies it for him. None of the officers were struck by the shots. The papers claimed to have been in possession of the officers, duthorizing their visit to Griffin’s place, either to search his premises or to arrest him, were.not produced at the trial. It was claimed by Dolive, the officer, that he lost them. The justice of the peace, who is supposed to have issued the papers, seems not to have testified in regard to the matter, and the record is anything but satisfactory as to what the papers held by the officers contained.

Under this state of case the court defined assault and battery and malice, and submitted the case for the consideration of the jury only upon the theory of assault with intent to murder. The jury convicted of that offense and gave appellant two years in the penitentiary. The party alleged to have been assau!1> ed was Williams, and the state’s claim was that appellant shot at Williams; that Williams was within about eight or ten feet of appellant when he fired more than once with a rifle of some character supposed to have been a Winchester; that Dolive was about two or three feet, or such matter, from Williams and Griffin, and about the same distance from both of them, and all within a few feet of appellant. The court, applying the law to the case, instructed the jury, if they were satisfied beyond a reasonable doubt that appellant, with a deadly weapon and with malice aforethought, assaulted John Williams with intent then and there to kill him, by the means charged in the indictment, and if they should further find from the evidence beyond a reasonable doubt that, said assault was not made under the immediate influence of sudden passion, produced by an adequate cause, as same is hereafter explained to them, and not in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, then they would find defendant guilty of an assault with intent to murder. There was no exception taken to this phase of the charge, except in a general way in the motion for new trial. This charge did not go far enough to meet what appellant thought was a defect in submitting the case fairly, and to meet this defendant asked the court to instruct the jury with reference to aggravated assault, and that if appellant did make the assault, but at the time was so excited, either by fear, rage, excitement, or anger, as to deprive him of his power of cool deliberation, and had no malice toward the injured party, then defendant would only be guilty of an aggravated assault and battery, and if the jury so believed, or had a reasonable doubt, . they should find him guilty of aggravated assault and punish him as provided by the statute. Appellant also asked the court to instruct the jury that, in order to convict defendant of assault to murder, the evidence must show that the defendant, if he made an assault on the injured party, had at the time of making such assault a specific intent to kill Williams, and, if such specific intent did not appear beyond a reasonable doubt, he could not be convicted of an assault with intent to murder.

If appellant was not actuated by malice aforethought, he could not be guilty of assault with intent to murder. He may have had the specific intent to kill, yet if it was under circumstances . that would have constituted manslaughter, had the killing occurred, his failing to kill would not constitute assault to murder. It would be but aggravated assault. But if he did not have the specific intent to kill, or had no intent to kill, or was firing under the defensive theory, to protect Griffin from the assault made upon him by either or both officers, Dolive and Williams, then he would not be guilty of assault with intent to murder. He may have fired too quick, or he may have fired under circumstances that showed no deliberation, and under the impulse of the moment, seeing his friend and relative about to be shot by others. This might constitute aggravated assault, or even might suggest a charge upon self-defense. There were five white men at Griffin’s home, and armed. It seems that defendant and White were there accidentally; at least such is the theory of the defensive testimony, and the testimony upon this is pretty clear, if the jury should believe it. He may have fired with no specific intent to kill, or he may have fired under such circumstances that, had he intended to kill and the killing occurred, it would have been manslaughter, and therefore, failing in the homicide, it would be aggravated assault. The court charged the jury that, if the shooting occurred under malice aforethought with intent to kill, he would be guilty of assault to murder; but in order to reach this he instructed the jury that his mind must not be influenced by sudden passion and adequate cause, but failed to instruct the jury of what he would be guilty if his mind was so influenced. It occurs to us that the charge asked by appellant, but refused by the court, should have been given. It seems conceded that Williams and appellant had always been on very friendly terms.' We think the issue of aggravated assault was in the case. It is immaterial from what testimony the issue may be raised, but, if it is in the case, appropriate instructions must be given. We are of opinion the court should have charged on aggravated assault, as requested by appellant.

The judgment will therefore be reversed, and the cause remanded. 
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