
    HANNERS v. STATE.
    (No. 10985.)
    Court of Criminal Appeals of Texas.
    Nov. 9, 1927.
    Rehearing Denied Dec. 14, 1927.
    1.Homicide <&wkey;145 — Where weapon is per se deadly, law presumes intent to kill, but, if not per se deadly, intent to kill must be determined from manner of use (Pen. Code 1925, art. 1261).
    In homicide prosecution, where it is shown that weapon is per se deadly, law presumes intent to kill, but, if weapon is not per se deadly, intent to kill is question of fact to be determined under Pen. Code 1925, art. 1261, from manner in which weapon was used.
    2. Homicide <&wkey;268 — Whether accused struck fatal blow with knife with intention to kill held for jury (Pen. Code 1925, art. 1261).
    Question of intention of accused to kill deceased, being controverted issue, and there being nothing in record to show that knife used by accused was per se deadly weapon, it was province of jury to determine whether fatal blow was struck by accused with intention to kill deceased, under Pen. Code 1925, art. 1261.
    3. Homicide <&wkey;309(I) — Failure to embody in manslaughter charge instruction covering statute relating to considering instrument used in determining intent to kill held error (Pen. Code 1925, art. 1261).
    In homicide prosecution, failure to embody in charge on manslaughter an instruction covering provisions of Pen. Code 1925, art. 1261, relating to considering instrument used in determining intent to kill, where evidence showed weapon used was pocket knife, was error as withholding from consideration of jury a guide by which they could determine whether intent to kill was'present in accused’s mind at time he struck fatal blow.
    4. Homicide <&wkey;>309(l) — Failure to charge statute regarding homicide by means not calculated to produce death in connection with manslaughter oiiarge held error (Pen. Code 1925, art. 1263).
    Where evidence raised issue that homicide occurred under influence of passion, and that knife used to inflict wound, which resulted in death, was not in its nature calculated to produce death, and that there was no intention to kill, it was error to fail to charge Pen. Code 1925, art. 1263, relating to prosecution for assault and battery, where homicide occurs under influence of sudden passion, but by use of means not in their nature calculated to produce death, in connection with chargf on manslaughter, since article should not only have been given in charge, but pointed application of its provisions should have been made to facts of case.
    5. Homicide <&wkey;>29Q — Unless deadly character of weapon used to kill is shown beyond question, failure to define deadly weapon is reversible error.
    When weapon used may or may not be deadly in character, it becomes duty of trial court to define what is deadly weapon, and, unless the deadly character of weapon used to kill is shown beyond question, failure to so define same is reversible error.
    On Motion for Rehearing.
    6. Homicide <&wkey;>l93 — Admitting evidence that no arms were about body of deceased after killing, and that he left weapons at another place, held not error.
    In prosecution for homicide, admitting evidence that two pistols belonging to deceased were left by him at his home when he left some little time before homicide, and that, when body of deceased was searched at hospital to which he was carried after homicide, no pistol or weapon was found thereon, held not error.
    
      'Commissioners’ Decision.
    Appeal from District 'Court, Wilbarger County; Robert Cole, Judge.
    George Hanners was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Fires & Williams, of Childress, C. Y. Welch, of Quanah, and Warlick & Poteet, of Vernon, for appellant.
    A. A. Dawson, 'State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is manslaughter; the punishment confinement in the penitentiary for five years.

This is the second appeal of this cause; the same having formerly been tried in the district court of Hardin county, wherein appellant was convicted of the offense of murder. On appeal from said conviction, the cause was reversed by this court, as appears from the opinion in 104 Tex. Cr. R. 442, 284 S. W. 554.

Appellant lodged an exception to the epurt’s charge as follows;

“The charge as a whole is error because of the failure to give article 1261,' Penal Code, the evidence showing that the injury inflicted by the defendant was done with a knife, and there is no evidence offered as to the size or character of the knife, or that the same was a deadly weapon per se. There is no other evidence ta show any intent to kill other than the bare fact that the wound that was inflicted produced death.”

Article 1261, Penal Code, provides:

“The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the defendant; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appears.”

It appears that the court omitted from the charge the article above quoted, and that in no part of the charge was said article given application. On the issue of manslaughter, in applying the law to the facts, the court charged the jury as folows:

“Now, if you believe from the evidence in this case beyond a reasonable doubt that the defendant George Hanners, in a sudden passion, aroused by adequate cause, as the same has hereinbefore been explained, and not in self-defense, did kill the said Wesley Taylor by cutting him with a knife, with the intent then and there to kill the said Wesley Taylor, as alleged in the indictment, then you will find the said defendant guilty of manslaughter, and assess his punishment at confinement in the state penitentiary for a term of not less than two, nor more than five, years. But, if you do not so believe from the evidence in this case, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of manslaughter.”

It is contended by appellant that, in the absence of a description of the knife used by Mm in inflicting the wound that resulted in the death of deceased, it became necessary for the court to give the provisions of article 1261; supra, in bis charge. Briefly, the record discloses that appellant, the deceased, and several other parties .were engaged in gambling; that .appellant and deceased had a •dispute over a bet, and that deceased called appellant a s-< of a b-; that appellant demurred, and requested deceased not to apply such epithets to him; that the dispute was settled, and the parties continued to gamble; that shortly afterwards appellant and deceased had a second dispute over a bet, which was also amicably arranged; that a third dispute arose between appellant and deceased, during which time deceased again applied to appellant the epithet he had theretofore used; that appellant a'nd deceased walked toward each other, both cursing; that just prior to the cutting of deceased by appellant the left hand of deceased flew up, and that immediately thereafter appellant struck deceased three blows with a pocket knife, inflicting three wounds, from one of which deceased thereafter died; that the knife used by appellant was an ordinary small pocket knife. Appellant’s theory was, as disclosed by the testimony, that deceased threatened him, and that he cut deceased in an effort to defend himself. All of appellant’s witnesses, and practically all of the witnesses for the state, testified to the effect that deceased cursed and abused appellant and threatened to kill him. The testimony of appellant’s witnesses shows that the deceased ran his hand in his bosom and threatened to shoot appellant immediately before appellant cut the deceased. The record further discloses that, immediately after the fatal blow was struck, appellant said: “I hurt him; I just as soon hit a brother.”

It is seen that no description of the knife used by appellant was given other than that it was an ordinary small pocket knife. It is true that the record shows that the wound from which deceased died penetrated the liver, and severed the cartilage ■forming the connection between the eleventh and twelfth ribs. This is the only evidence in the record from which the jury might have inferred that the intention to kill evidently appeared. If it is shown that the weapon is per se deadly, the law presumes the intent to kill; but, if the weapon is not per se deadly, the intent to kill is a question of fact to be determined, under the statute, from the manner in which the weapon was used, and in such case it must evidently appear from the manner and use of such weapon that there was an intent to kill. While the court in his charge on manslaughter in- ■ structed the jury that they must find that appellant intended to kill the deceased before they could find him guilty of the offense of manslaughter, a guide for the determination of‘the question of the intention to kill was entirely omitted from the charge. The question of the intention of appellant to kill the deceased being a controverted issue, and there being nothing in the record to show that the knife used by appellant was per se a deadly weapon, it was the province of the jury to determine whether the fatal blow was struck by appellant with the intention to kill deceased. In the case of Hoover v. State, 87 Tex. Cr. R. 372, 222 S. W. 244, this court said:

“In instances in which under the evidence the instrument used in producing the homicide was not a deadly weapon, or in which there was an issue upon that point, this court, with marked uniformity, has held that upon appellant’s request his theory of an absence of intent to kill should be put before the jury in a manner clearly informing them as to the law.”

In the case of East v. State, 296 S. W. 883, this court said:

“There is nothing in the record showing the deadly character of the knife used by appellant, and, this being true, he is entitled to have the question of intent presented as an issue to the jury” — citing Griffin v. State, 40 Tex. Cr. R. 312, 50 S. W. 366, 76 Am. St. Rep. 718.

In the ease of Garrett v. State, 82 Tex. Cr. R. 64, 198 S. W. 308, the testimony show-, ed that the weapon used by appellant was a razor, and that the wound inflicted was serious and dangerous. In submitting a charge on assault with intent to murder, the court said:

“If, from the evidence, you are satisfied beyond a reasonable doubt that the defendant, Mary Garrett, * * * with a deadly weapon, and with malice aforethought, did assault the said Alberta Johnson with the intent then and there to kill and murder her, by the means charged in the indictment, * * * then you will find the defendant guilty of an assault with intent to murder. * * * ‘Before you convict the defendant in this case of assault with intent to murder, you must find beyond a reasonable doubt: (1) that the defendant cut the said Alberta Johnson; (2). that she did so with the specific intent of killing said Alberta Johnson.

Appellant objected to this charge on the ground that the court failed to charge articles 1147 and 1149, of the Penal Code, now articles 1261 and 1263, Penal 'Code of 1925. The majority of the court held that the failure of the court to charge these articles constituted reversible error. It is noted that the court instructed the jury in the charge immediately hereinbefore quoted, among other things, that, before they could find the appellant guilty, they must find that she had the specific intent of killing the injured party. Notwithstanding the fact that the intent to kill was submitted to the jury in the language quoted, this court held that error resulted from the failure to charge the provisions of article 1147 of the Penal Code, now article 1261, Penal Code of 1925. See Craiger v. State, 48 Tex. Cr. R. 500, 88 S. W. 208.

We are constrained to hold that, under the facts of this case, the court in failing to embody in the charge an instruction covering the provisions of article 1261, Penal Code, which was in effect .at the time, withheld from the consideration of the jury a guide by which they could determine whether the intent to kill was present in appellant’s mind at the time he struck the fatal blow.

Timely exception was taken by appellant to the failure of the court to give, in connection with the charge on-manslaughter, an instruction covering the provisions of article 1263, Penal Code, which said article was in effect at the time of the trial. Article 1263, Penal 'Code, provides:

“Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to producé 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.”

Paragraph 11 of the court’s charge reads as follows:

“If, under the foregoing instructions, you acquit the defendant of the offense of murder and of manslaughter, you will next consider whether or not he is guilty of aggravated assault.”

Immediately succeeding the above-quoted instruction are paragraphs submitting the law of aggravated assault.

The provisions of article 1263 were not given application in connection with the charge on manslaughter, and were entirely omitted from the charge as a whole. While, in the charge on aggravated assault, the court instructed the jury, in substance, that, if they had a reasonable doubt that the knife used -from the manner and mode of its use was a deadly weapon, the offense would be aggravated assault, the difficulty is that paragraph 11 of the court’s charge, in effect, advised the jury that the antecedent instructions should govern them in determining whether the offense was manslaughter. The evidence raising the issue that the homicide occurred under the influence of sudden passion, and that the knife used to inflict the wound which resulted in the death of deceased was not in its nature calculated to produce death, and that there was no intention to kill, it was error to fail to charge article 1263, supra, in connection with the charge on manslaughter. Not only should the article have been given in charge, but pointed application of its provisions should have been made to the facts of the ease. See Mason v. State, 96 Tex. Cr. R. 48, 225 S. W. 986.

Appellant contends that the court erred in failing to embody in the charge a definition of what constituted a deadly weapon. We must sustain appellant’s contention. When the weapon used may or may not he deadly in character, it becomes the duty of the trial court to define what is a deadly weapon; and, unless the deadly character of the weapon is shown beyond question, the failure to so define same is reversible error. See Tolston v. State, 88 Tex. Cr. R. 269, 225 S. W. 1098, and authorities cited.

Por the errors pointed out, the judgment is reversed, and the cause remanded.

PER OURIAM. 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. -

On Motion for Rehearing.

OATTIMORE, J.

Appellant is not satisfied with our opinion reversing this case, and mates complaint that we failed to pass on two of his bills of exception. Said bills substantially presented objection to proof that two pistols belonging to deceased were left by him at his home when he left some little time before the homicide; also proof of the fact that, when the body of deceased was undressed and searched at the hospital to which it was carried after the homicide, no pistol or weapon was found thereon. We do not believe error was committed in either particular. Many authorities are cited by Mr. Branch in his Annotated P. C., under section 1931, supporting the proposition that the state may always prove that the deceased was unarmed at the time of the homicide in self-defense cases. See Seeley v. State, 43 Tex. Cr. R. 69, 63 S. W. 309; Thomas v. State, 45 Tex. Cr. R. 114, 74 S. W. 36; Dougherty v. State, 59 Tex. Cr. R. 469, 128 S. W. 398. If the state might prove this fact directly by positive testimony of witnesses, it might prove the same inferentially by testimony which showed, that there were no arms about the body of deceased after he was killed, or that he had left his weapons at another place. An objection to such testimony would go more to its weight than to its admissibility.

Appellant’s motion for rehearing will be overruled. 
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