
    CARNEY v. STATE.
    (No. 11744.)
    Court of Criminal Appeals of Texas.
    May 16, 1928.
    1. Witnesses &wkey;>274(I)— Cross-examination of character witness for accused1 will be confined to conduct antecedent to commission- of offense charged.
    The cross-examination of a character witness for accused in ci’iminal case must be confined to conduct antecedent to commission of offense charged.
    2. Criminal law <&wkey;1137(5) — Appellant could not complain of cross-examination of character witness on matters other than those antecedent to offense charged, where accused had made her inquiries include antecedent matters.
    On appeal, accused could not complain of error in the trial court’s permitting cross-examination of character witness on matters other than those antecedent to commission of the offense charged, where accused, herself, had made her inquiries include antecedent matters.
    3. Criminal law <®=o4I9, 420(1) — Defendant’s character witness’ testimony relative to defendant’s cutting deceased held inadmissible as hearsay.
    Defendant’s character Witness’ testimony in murder trial, relative to witness having heard that defendant cut deceased, and that deceased died from the cuts, held inadmissible as hearsay, 'where witness was not shown to have been qualified to give an opinion from personal observation and knowledge.
    4. Homicide <&wkey;>268 — Knife with blade two and one-half inches long is not deadly weapon per se.
    A knife with a blade about two and one-half inches long is not a deadly weapon per se.
    5. Homicide <&wkey;290 — In prosecution, for murder by attack with knife, court erred in. not defining deadly weapon.
    In prosecution for murder by defendant’s, having cut deceased with a knife which some witnesses testified had a blade about two and one-half inches long, court, under facts of case, erred in not defining a deadly weapon; there being proof showing the wounds inflicted were not necessarily fatal.
    6. Homicide &wkey;329l — In prosecution for murder by cutting, defensive theory that death resulted from deceased’s father packing cobwebs in wounds, causing blood poisoning, should have been given to jury (Pen. Code 1925, arts. 1202, 1203).
    In prosecution for murder by cutting, defensive theory of deceased’s death having resulted from deceased’s father packing cobwebs in wounds, resulting in blood poisoning, should have been given to jury, since, under Pen. Code 1925, arts. 1202, 1203, defendant was not guilty of murder, if her theory was correct.
    7. Criminal law <&wkey;772(6) — Accused is entitled to have any defense supported by evidence affirmatively submitted to jury.
    The accused is always entitled to have any defense supported by evidence affirmatively submitted to the jury.
    Commissioners’ Decision.
    Appeal from District Court, Robertson County; W. C. Davis, Judge.
    Rosetta Davis Carney was convicted of homicide, and she appeals.
    Reversed and remanded.
    Bush & Parten, of Eranklin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was indicted for the murder of Lessie Samuels. Appellant and deceased were negro women. A difficulty ensued between them in which appellant cut deceased with a knife, described by some of the witnesses as having a blade about two and a half inches long. There were two rather severe wounds on the body of deceased. These were packed with cobwebs by the father of deceased soon after she was cut. She died about a week later from blood poisoning. The attending physician testified that her wounds were not necessarily, fatal. He gave it as his opinion that the germs that set up the blood poison got into the blood streams from these cobwebs and dust that were put in the wounds by the father of deceased. He testified further, however, that such might have come from the knife. The issue was sharply drawn as to whether death was proximately caused by the knife wounds or by germ-laden cobwebs stuffed into such wounds, as stated above.

Appellant introduced evidence of her good reputation. On cross-examination, over proper objection, witness was permitted to testify that he “heard that she (defendant) cut Lessie Samuels (the deceased), and that she died from the cuts.” It further appears that the queston was asked if said witness believed that a person had a good reputation who kills another. It is urged that this was inadmissible, because the inquiry should have been directed to a time antecedent to the commission of the alleged offense. This contention is undoubtedly correct, but we observe the appellant herself improperly directed her inquiries so as to include the time antecedent to the trial rather than the offense. Under these circumstances she could not complain of the question. However, the statement to the effect that the witness had heard that deceased was cut and died from such cuts presents a different question. This was upon one of the sharp and hotly contested issues of the trial; that is, whether the deceased actually died from such cuts or from the poison injected into the blood streams from contact with dirty cobwebs. A character witness was thus permitted to give hearsay testimony upon this issue. He is not shown to have been qualified to give an opinion from personal observation and knowledge, and could not, of course, make a statement which amounted to the repetition of a hearsay opinion upon the issue of what killed deceased. Woodward v. State, 105 Tex. Cr. R. 556, 289 S. W. 407.

The court in his charge uses the word “deadly weapon” in referring to the killing of deceased by appellant. He nowhere defines “deadly weapon.” The average juror might regard a knife of the character shown in the record as a deadly weapon per se. That it is not such a weapon has been frequently decided. Hilliard v. State, 17 Tex. App. 210; Branch’s P. C. p. 934. The court should have in his charge under the facts of this case defined a deadly weapon. This especially in view of the proof showing. the wounds inflicted were not necessarily fatal and the size of the knife. Kouns v. State, 3 Tex. App. 13; Lawson v. State (Tex. Cr. App.) 32 S. W. 895.

The appellant insists that there should have been a direct and pertinent application of her defense by the court in his chárge to the jury, and that the jury should have been instructed in substance that, if the jury find from the evidence that deceased died because of the application of cobwebs to her wounds, and that not from the wounds as originally inflicted, to acquit her of the offense of murder, and next consider whether or not she was guilty of any other offense set out in the charge of the court. While the charge requested may not have been strictly accurate, we think that a direct and pertinent submission of the defensive theory of appellant should have been given the jury. We regard the language of paragraph 7 of the court’s charge as perhaps too general. It does not call the jury’s attention directly to appellant’s theory of the death of deceased being caused by the application of cobwebs to her wounds. While this error alone might not justify a reversal, in view of the disposition we make of the ease, we suggest to the court that a more direct and. pertinent application be given of appellant’s defense. Under the terms of articles 1202 and 1203, P. C., appellant is not guilty of murder if her theory is correct. There is abundant evidence to support same. The accused is always entitled to have any defense supported by evidence affirmatively submitted to the jury. Modica v. State, 105 Tex. Cr. R. 39, 285 S. W. 825, and authorities there cited. Simms v. State (Tex. Cr. App.) 4 S.W.(2d) 557.

Other bills not discussed we believe to be without merit.

For the errors discussed, the judgment is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. . 
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