
    MORALES v. STATE.
    (No. 11666.)
    Court of Criminal Appeals of Texas.
    June 6, 1928.
    1. Assault and battery <§=^-96(7) — Homicide <§=»90 — Piano stool held not deadly weapon per se, and denial of charge on aggravated assault was erroneous (Pen. Code 1925, art. 1263).
    Where defendant during difficulty in dance hall armed himself with a piano stool, helctt such weapon was no-t a deadly weapon per se, and denial of charge on aggravated assault under Pen. Code 1925, art. 1263, was error.
    2. Homicide <§=3309(1) — Evidence held1 to require instruction as to"'necessity of intent to kill before conviction for manslaughter (Pen. Code 1925, art. 1261).
    Evidence as to killing in course of fight in dance helctt to require instruction as to necessity under Pen. Code 1925, art. 1261, of intent to kill before conviction for manslaughter.
    3. Homicide <§==>305 — Failure in homicide cáse to charge converse of law of principals held erroneous under evidence.
    In prosecution for manslaughter in course of fight in dance hall, failure to charge the converse of the law of principals held! error under evidence.
    Commissioners’ Decision.
    Appeal from District Court, San Patricio County; T. M. Cox, Judge.
    Jesus Morales was convicted of manslaughter, and he appeals.
    Reversed, and cause remanded.
    E. G. Lloyd, Jr., of Alice, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, manslaughter; penalty,. two years in the penitentiary.

The difficulty which terminated in the tragedy originated at a Mexican dance in a crowded room full of people whose version of same is contradictory and impossible to reconcile. The indictment charged that deceased, Faustino Ramirez, came to his death at the hands of Amado Garcia, Tsidro Morales, and appellant, and that he was killed by stabbing, striking, and cutting with a knife, by beating, striking, and wounding with an iron rod, and by striking, beating, and wounding with a bludgeon. There was testimony tending to establish the truth of the allegations of the indictment.

Appellant’s version of the affair was entirely different from that of the state, and finds ample corroboration in the testimony of the witnesses. He was the floor manager at this Mexican dance, and as such it was his business to keep order. According to a custom among Mexicans, the young ladies are seated to themselves during the interval between dances. During one of these intervals, Alberto Ramirez, brother of deceased, came and sat near one of the young ladies, and appellant was asked by the young lady to request Alberto Ramirez to move. After repeated requests from appellant, Ramirez attacked appellant with a knife, whereupon appellant procured a piano stool, finally getting out of the building without participation in the general fight which followed. He emphatically denied any complicity in the killing or that he knew of the death of Ramirez until some time afterwards. Apparently the only weapon in possession of appellant during the melée was a piano stool. Deceased was stabbed, as well as bruised and beaten about the face and head. The attending physician testified that the knife-wound caused his death. The offense 'occurred prior to the enactment of the present murder statute, and the court charged on murder and manslaughter. He also charged upon assault to murder based upon the use-of a piano stool as a bludgeon by appellant.

The record as a whole clearly raises two-defensive matters, viz.: (1) That if the offense was committed by another and appellant did' not participate therein in such manner as. to make him a principal as that term is defined by law, he would not be guilty, though he was present when same was committed. (2) That since the weapon which the state claims appellant used was not per se a deadly weapon, the issue of aggravated assault was raised under article 1263 of the Penal Code, which provides as follows:

“Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery.”

If appellant used any weapon, it was one used to strike with and was not shown to have been a deadly weapon. It was not per se deadly. Crow v. State, 55 Tex. Cr. R. 200, 116 S. W. 52, 21 L. R. A. (N. S.) 497; Washington v. State, 53 Tex. Cr. R. 481, 110 S. W. 751, 126 Am. St. Rep. 800; Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361; Mitchell v. State, 71 Tex. Cr. R. 93, 158 S. W. 812; House v. State, 75 Tex. Cr. R. 338, 171 S. W. 206.

The court erred in refusing to charge on aggravated assault. Forest v. State, 108 Tex. Cr. R. 159, 300 S. W. 53, and authorities there collated; also, Hanners v. State, 108 Tex. Cr. R. 302, 300 S. W. 71, and authorities there collated.

The court charged for the state upon assault to murder, and the evidence raising the issue of aggravated assault on behalf of appellant was fully as cogent as that which raised the issue of assault to murder.

It was further an issue under the facts of this case and by’ the terms of article 1261, P. C., as to whether an intent to kill existed, and the jury should on another trial be appropriately instructed that a conviction for manslaughter could not be had unless it appeared from the facts beyond a reasonable doubt that an intent to kill existed. Forrest v. State, 108 Tex. Cr. R. 159, 300 S. W. 53; Griffin v. State, 40 Tex. Cr. R. 312, 50 S. W. 366, 76 Am. St. Rep. 718; Hoover v. State, 87 Tex. Cr. R. 372, 222 S. W. 244; Collins v. State, 108 Tex. Cr. R. 72, 299 S. W. 403. The Collins Case will indicate to the trial judge the law in this particular. We find no exception raising this point, but deem it best to discuss it in view of another trial.

There was further error in the charge of the court in failing to charge the converse of the law of principals. He charged this law affirmatively upon the state’s theory, but did not charge that, if another did in fact commit the offense and appellant did not know ot che unlawful intent of such person and did not aid him by acts or encourage him by words or gestures, he would not be guilty, even though he was present. Jackson v. State, 20 Tex. App. 192; Wood v. State, 28 Tex. App. 14, 11 S. W. 678; Silvas v. State, 71 Tex. Cr. R. 213, 159 S. W. 223; Elliott v. State (No. 11219) 4 S.W.(2d) 61, not yet officially reported.

Alleged errors not discussed are such as we deem unlikely to again occur, and we pre-termit discussion of same.

For the errors discussed, the judgment is reversed and 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. 
      <§=»For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     