
    HYSAW v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.
    Rehearing Denied April 23, 1913.)
    1. Homicide (§ 307) — Aggravated Assault —Evidence.
    Where defendant stabbed deceased in the stomach only once with an ordinary pocket knife and there was no testimony showing directly that it was a deadly weapon, defendant having testified that he had no idea of killing deceased, but, being greatly frightened at the way deceased came at him, stuck him once with the knife in order to defend himself, it was error to refuse to charge on aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    2. Homicide (§ 188)— Self-Defense — Reputation — Manner of Proof.
    While, ordinarily, proof that deceased was a violent and dangerous man must be by showing his general reputation, yet, when self-defense is in issue, evidence of specific acts of violence by deceased communicated to defendant and showing that deceased was a violent and dangerous- man is admissible, and, such specific acts being proved, the state, on cross-examination, may inquire as to the particulars of the specific acts to show that deceased was justified or to rebut defendant’s theory that such acts show deceased to have been a violent and dangerous person.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.]
    3. Homicide (§ 193) — Evidence — Materiality.
    In a prosecution for homicide, evidence that deceased had been previously seen to carry a pistol, but not on the day or at the time of the alleged homicide, was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 416; Dec. Dig. § 193.]
    4. Witnesses (§ 246) — Examination by Court.
    Where accused in a prosecution for- homicide did not attempt to show that deceased had the general reputation of being a violent and dangerous man, it was improper for the court of his own motion-to ask witness questions to prove or disprove that fact.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 852-857; Dec. Dig. § 246.]
    5. Criminal Law (§ 720) — Credibility of Witness — Argument to Jury.
    Where the credibility of a witness is to be passed on by the jury, the prosecuting attorney may discuss his testimony and argue to the jury that it was false.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    6. Criminal Law (§ 829) — Instructions— Reasonable Doubt.
    A requested charge that the law contemplates the concurrence of 12 minds before a conviction can be had, that each individual juror must be satisfied beyond a reasonable doubt of defendant’s guilt before he can consent to. a verdict of. guilty, that each juror should feel the responsibility resting on him and realize that his own mind must be convinced beyond a reasonable doubt of defendant’s guilt before he can consent to a verdict of guilt, so that if any individual juror, after having considered all the evidence and consulted 'with his fellow jurors, should entertain a reasonable doubt of defendant’s guilt, it was his duty not to surrender his convictions merely because the balance of the jury entertain different convictions, was properly refused; it being sufficient that the court’s charge on reasonable doubt was in substantial conformity to the statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Appeal from District Court, Caldwell County; F. S. Roberts, Judge.
    Searcy Hysaw was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    E. B. Coopwood and O. Ellis, Jr., both of Lockhart, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Upon a charge of murder appellant was convicted of manslaughter, from which he appeals.

It is unnecessary to give a statement of the evidence. In our opinion it raised the issue and was clearly sufficient to sustain a conviction for manslaughter.

For a long time before the evening of the killing appellant and deceased had known one another and they were friends. At least, no trouble was ever shown to have existed theretofore between them. Appellant, a short time before the killing, had borrowed a dollar and a half from deceased, promising to pay it on the day of the killing, which was Christmas day, 1911. On the evening of that day they met in a saloon. Deceased demanded the money from appellant, and trouble arose between them. There were more or less harsh words and temper displayed by both of them on this occasion. They separated, or were separated by the intervention of friends. Deceased went out the back door and appellant fhe front door of the saloon. Shortly afterwards they met on the street, when the trouble was renewed and the killing resulted.

From the state’s standpoint and evidence appellant was the aggressor, and the testimony was sufficient to have established murder or at least manslaughter. From appellant’s standpoint and his testimony, self-defense was raised. The court charged thereon, as well as murder in the first and second degrees and manslaughter. The court refused to charge on aggravated assault, although a special charge was requested on that subject by appellant, and proper complaint is made of the charge of the court, because of his failure and refusal to submit aggravated assault.

The knife with which the killing oc-eurred was produced, identified, and introduced in evidence, or, at least, displayed and exhibited to the jury. The testimony all shows that it was only an ordinary pocket knife. No testimony was introduced directly showing that it was a deadly weapon. The appellant stabbed deceased in the stomach only one time. Appellant testified: “I did not try to cut him but the one time. I could have cut him all to pieces. I did not intend to kill him. I cut him to keep him from hurting me. I had no idea of killing him.” The appellant further testified that, when he first saw deceased after they went out of the saloon, deceased was coming towards him, cursing, and that it scared him nearly to death; that he cut him with just a medium pocket knife and only once; that he did not know when he got the knife out; that he was scared to death. In our opinion, with the testimony as shown by this record, aggravated assault and battery was raised, and it was reversible error for the court to refuse to submit that question to the jury. It is true the stab was in a vital part of the body and proved fatal. This would not necessarily exclude aggravated assault, and especially in view of the fact that appellant claimed he was so badly scared, and the knife used was not necessarily a deadly weapon, and the manner of its use was not necessarily such as to exclude the idea that appellant did not intend to kill the deceased. So that, as stated above, in our opinion the evidence raised, and the court should have submitted, a proper charge on aggravated assault. For a collation' of the authorities, see section 434, Branch’s Crim. Law.

Ordinarily proof that the deceased was a violent and dangerous man must be made by showing that that was his general reputation. Heffington v. State, 41 Tex. Cr. R. 319, 54 S. W. 755; Connell v. State, 45 Tex. Cr. R. 153, 75 S. W. 512; Poole v. State, 45 Tex. Cr. R. 362, 76 S. W. 565; Darter v. State, 39 Tex. Cr. R. 44, 44 S. W. 850. However, when self-defense is an issue and it is necessary to show the state of mind of the appellant at the time of the commission of the offense specific acts of violence of the deceased, which are then known to appellant or have been communicated to him, which show, or tend to show, he was a violent and dangerous man, etc., may be shown for the purpose of showing that he acted in self-defense based on this information and knowledge to him of the character of the deceased, and to show his state of mind at the time. See section 473, Branch’s Crim. Law, where these rules are stated and authorities establishing them are collated. However, such proof of specific acts of violence by the deceased cannot be shown by the appellant, unless he knew, or was informed thereof, prior to the commission of the offense. Where he testifies on the trial that he knew or had this information, then he will be permitted to go further and prove by others, who know the facts, the said specific acts of violence without going into the details thereof. But he cannot introduce hearsay on that subject. In the event he shows that he had such knowledge or information, and testifies to such specific acts of violence, then introduces testimony by persons who know the facts and testify to such specific acts, the state, in cross-examination of such witnesses, should be permitted to go into the particulars of the specific acts for the purpose of showing that the deceased was justifiable, or rebut defendant’s theory that such acts show him to have been a violent and dangerous person, etc.

It is unnecessary to take up and discuss or decide each of appellant’s bills of exceptions along this line. Upon another trial of the case, what we have said is sufficient to govern the lower court in the admission and exclusion of evidence on this point.

The court did not err in excluding the testimony of Austin Henderson wherein appellant sought to prove by him that he saw deceased at one time carrying a pistol. That the deceased was seen to carry a pistol at one time, which was not on the day or at the time of the alleged commission of this offense, would not be admissible; but proof that he habitually carried a pistol, if such were a fact, might be admissible. Lilly v. State, 20 Tex. App. 9; Glenewinkel v. State, 61 S. W. 123; Branch v. State, 15 Tex. App. 101. Especially would this be the case if appellant should show that he knew deceased was in the habit of carrying concealed weapons.

As appellant, who alone had the right to do so, did not attempt to show that the deceased had the general reputation of being a violent and dangerous man, it was improper for the court of his own motion to ask the witness Henderson questions seeking to prove or disprove that fact. We think that where the appellant puts the reputation of the deceased in issue on this subject by evidence either of his general reputation to that effect, or by specific acts showing it, then it would be proper for the state to rebut this by showing that his reputation in this respect was not as attempted to be shown by such evidence, but his character was that of a peaceable, quiet, and law-abiding man.

While prosecuting attorneys should observe the rules of propriety in cross-examining witnesses wh.ere they believe they are giving false testimony, yet appellant’s bills in this case, claiming that the court should not have permitted the district attorney to ask and say what he did with reference to the witness Lee Moore, as qualified by the court, show no error; for the court states that the demeanor and answer of the witness justified the conduct of the district attorney. Certainly, if the witness’ credibility is to be passed upon by the jury, the prosecuting officer has the unquestioned right to discuss Ms testimony,-and argue before tiie jury that it is false.

■ It is useless to discuss appellant’s bills wherein he complains of the action of the court in imposing a fine upon his attorney for the manner in which he attempted to ask questions that had been prohibited by the court, for they doubtless will not occur upon another trial.

The court did not err in refusing to give this charge requested by appellant: “Upon the trial of a criminal case by a jury the law contemplates the concurrence of twelve minds in the conclusion of guilt before conviction can be had. Each individual juror must be satisfied beyond a reasonable doubt of the defendant’s guilt before He can, under his oath, consent to a verdict of guilty. Each juror should feel the responsibility resting upon him as a member of the jury and should realize that his own mind must be convinced beyond a reasonable doubt of the defendant’s guilt before he can consent to a verdict of guilty. Therefore, if any individual member of the jury, after having duly considered all the evidence in the case and after consultation with his fellow jurors, should entertain such reasonable doubt of the defendant’s guilt as is set forth in their instructions in this case, it is his duty not to surrender Ms own convictions simply because the balance of the jury entertain different convictions.” It is never proper to give such a charge in any case. It has uniformly been held by this court that it is sufficient for the court to charge the reasonable doubt in substantial conformity to the language of the statute.

Outside of giving a proper charge on aggravated assault, no other charge requested by appellant and refused by the court should have been given.

There are no other questions raised which require any discussion or decision on our part.

For the error pointed out the judgment is reversed and the cause remanded.  