
    FOREST v. STATE.
    (No. 11040.)
    Court of Criminal Appeals of Texas.
    Nov. 23, 1927.
    1. Homicide <&wkey;269 — In prosecution for murder, count in indictment charging killing was done by instruments and means unknown held properly submitted to jury.
    In prosecution for murder, where indictment contained count that killing was done by use of instruments, means, and weapons which were unknown to grand jury that returned indictment, it was not error for court to submit particular count to jury, in absence of issue having been raised by evidence, and it affirmatively appearing that it was uncertain as to what instrument inflicted fatal wound.
    2. Homicide &wkey;>309(6) — Charge which defined adequate cause to reduce killing to manslaughter held erroneous where it was not pertinently applied to facts.
    Where evidence raised issue of intent to kill, charge on manslaughter which defined adequate cause sufficient to reduce killing to manslaughter was erroneous where it was not pertinently applied to facts and this point was called to attention of court in timely manner by proper exception, since jury should have been pointedly told that, if they believed deceased made an unlawful assault on defendant and struck him, causing pain or bloodshed, this was adequate cause.
    3. Homicide <&wkey;>l45 — Where deadly weapon was not used, unless intent appears from manner of killing, intent cannot be presumed but must be shown (Pen. Code 1925, art. 1261).
    Where deceased was killed with weapon not deadly per se, under terms of Pen. Code 1926, art. 1261, jury cannot presume death was designed “unless from the manner in which it was used such intention evidently appears,” and where lack of intent was defensive issue, jury should have been charged that before conviction can be had for either murder or manslaughter, it must appear beyond reasonable doubt defendant had intent to kill deceased.
    4. Homicide <&wkey;286(l) — 'Where weapon used in killing is not deadly, jury should be charged that intent may be presumed from manner of use (Pen. Code 1925, art. 1261).
    Where weapon used in killing is not deadly per se, jury should be charged that, under Pen. Code 1925, art. 1261, intent to kill may be presumed from manner in which such weapon was used.
    5. Assault and battery <&wkey;96(7) — Court’s failure on murder trial to charge on aggravated assault in connection with statute held error (Pen. Code. 1925, art. 1263).
    Where on trial for murder with weapon not deadly per se, it was error, when called to court’s attention, not to charge on aggravated assault, under Pen. Code 1925, art. 1263, providing that where homicide occurs under influence of sudden passion, by means not likely to produce death, person killing may be convicted of any grade of assault.
    6. Homicide <&wkey;300(3)— Charge on self-defense, where aggravated assault was one of issues, held too restrictive.
    Where on trial of defendant where one of issues was aggravated assault, charge that authorizes acquittal on ground of self-defense only if it appeared to defendant that he was in danger of death or serious bodily injury .was too restrictive.
    Commissioners’ Decision.
    Appeal from District Court, Kerr County; L. J. Brueks, Judge.
    Pat Forest was convicted of murder, and lie appeals.
    Reversed and remanded.
    Lee Wallace, of Kerrville, and Dave Watson, W. A. Morriss, and W. A. Morriss, Jr., all of San Antonio, for appellant.
    W. C. Baker, of Kerrville, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, murder; punishment, life imprisonment in the state penitentiary.

The indictment charges appellant with the murder of W. A. Gray and is in six counts. The charge of the court submitted four of these, authorizing a conviction if the killing were done in either of the four means alleged in the indictment, one of which was “in a way and manner and by the use of instruments and means and weapons which were unknown to the grand jury.”

The evidence shows that appellant and deceased played poker together practically all night preceding the homicide and a part of the day of the homicide, during which time the deceased was a heavy loser to appellant, losing quite a sum of money and, in addition, his automobile. The body of deceased was found in a public road near a gate leading into the premises occupied by appellant. Only two witnesses saw any part of the trouble, these testifying that they saw appellant stomping or kicking the deceased and dragging Mm towards the front end of the car, and at the time deceased appeared lifeless. There were the prints of an automobile tire across the body of deceased and various wounds, some six or seven in number, on his head. His skull appeared to be fractured or crushed in two places, his jawbone was broken, some of his teeth knocked out, one eye was entirely gone, and the other protruding. Human blood was found on the heel of one of appellant’s boots. A' knife lay near the body of deceased which was shown to have belonged to deceased. The state was without direct testimony from eyewitnesses as to the exact means used by appellant in killing deceased. It was shown that some of the wounds on his head were caused by a blow from some blunt instrument or object; the character of instrument used was an inference to be drawn from circumstances introduced by the state, and from these circumstances it was made uncertain as £o its exact character. There was a general verdict of guilty returned by the jury. .

It is urged that the court was in error in authorizing a conviction upon the count in the indictment charging that the killing was done by the use of instruments and means and weapons which were unknown to the grand jury that returned the indictment, for the reason that there was no proof offered in evidence as to whether the instrument and the means and the weapons were known or unknown to the grand jury and no proof in evidence to sustain said charges. The evidence introduced by the state, as already indicated, made it uncertain as to the exact means used by the appellant in killing deceased. In this respect it was a case of circumstantial evidence, and any inference drawn rested not upon the testimony of eyewitnesses but upon circumstances from which more than one conclusion was possible as to how deceased was killed. There was nothing in the testimony indicating that the grand jury knew or could have known by the exercise of reasonable diligence the exact instrument used by appellant in killing deceased. This fact is made manifest and certain by the state’s evidence. In the absence of an issue having been raised by the evidence, and it affirmatively appearing that it was uncertain as to what instrument inflicted the fatal wound, it was not error for the court to submit this particular count to the jury as it did. Harris v. State, 37 Tex. Cr. R. 442, 36 S. W. 88; Satterwhite v. State, 77 Tex. Cr. R. 400, 177 S. W. 959; Walker v. State, 94 Tex. Cr. R. 418, 251 S. W. 235. It unquestionably is the safer and better practice for the state to'make proof originally of such an averment in the indictment, but we can see no good reason for requiring proof by the state in this case of a fact already made obvious by its evidence. See, also, Carr v. State, 80 Tex. Cr. R. 465, 190 S. W. 727. While some of the authorities above cited are perhaps not altogether clear, they are, we think, a sufficient basis for the ruling we make under the peculiar facts of this case.

The court gave a charge upon murder, manslaughter, and self-defense. The testimony of the appellant indicated that the killing was done with a bottle, a weapon used to strike with, and further indicated that he was being attacked by the deceased at the time with a knife. He testified:

“I believed I was in danger of serious bodily injury or death at his hands at that time. When he had this knife cutting at me, it appeared to me that he was trying to kill me or inflict serious bodily injury on me. It was during the time that he was cutting at me that he said he was going to kill me.”

He further testified that deceased cursed and abused him and attacked him, striking him on the head, causing severe pain and bloodshed, and that he then attacked the deceased with a large bottle with no intention of killing him. Many objections were urged to the court’s charge, some of which unquestionably point out error, and it appears that other and further valid objections could have been made. These will all appear in our discussion of the court’s charge.

It appears that the weapon, whatever it was, used by appellant was one to strike with and was not per se deadly. The evidence raises the issue of intent to kill by appellant.

The court’s charge on manslaughter in applying the law to the facts was as follows :

“Now, if you find from the evidence beyond a reasonable doubt that the defendant as alleged in the indictment, and on or about the date alleged, did in Bandera county, Tex., in a sudden passion arising from an adequate cause, and not in defense of himself against an unlawful attack under the law of splf-defense hereinafter submitted to you, kill the said W. A. Gray, in either one or more of the modes alleged in the indictment, and submitted to you in paragraph 5 of these instructions, then you will find the defendant guilty of manslaughter, so say in your verdict, and assess his punishment at confinement in the penitentiary for not less than 2 nor more than 5 years, as you may determine and state in your verdict.”

He‘further charged the jury:

“An assault and battery upon the deceased by defendant causing pain or bloodshed is, in law, deemed an adequate cause.”

The jury should have been pointedly told that, if they believed the deceased Made an unlawful assault upon appellant and struck him, causing pain or bloodshed, this, in law, was adequate cause, and, if, in view of such cause ■ or such cause in connection with all the other facts and circumstances of the case, the -jury believed appellant’s mind was thereby rendered incapable of cool reflection and in such condition he killed deceased, he would be guilty of no higher offense than manslaughter. Ware v. State, 49 Tex. Cr. R. 413, 92 S. W. 1093: Craft v. State. 57 Tex. Cr. R. 257, 122 S. W. 547: Smith v. State, 67 Tex. Cr. R. 27, 148 S. W. 699; Rogers v. State, 67 Tex. Cr. R. 467, 149 S. W. 127. While the court defined adequate cause, he omitted to pertinently apply the law to the facts, and this point was called to the attention of the court in timely manner by proper exception and its omission was error.

The charge on manslaughter as well as on murder in effect assumes an intent to kill. The jury were nowhere required to find such intent beyond a reasonable doubt before a conyietion of such offense was authorized. Where the weapon is per se deadly, the law presumes an intent to kill, but if the weapon used by appellant is one not likely to produce death, under the terms of article 1261, P. C. 1925, the jury cannot presume that death was designed, “unless from the manner in which "it was used such intention evidently appears.” One of the defensive issues made by the evidence in this ease was appellant’s lack of intent to kill. This issue was nowhere charged upon. We find no exception in the record to this omission in the court’s charge, but we mention this in view of another trial. The jury should hereafter be directly charged that, before a conviction can be had for either murder or manslaughter, it must appear from the facts beyond a reasonable doubt that appellant had an intent to kill deceased. 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; and the case of Collins v. State, 299 S. W. 403, where this question is gone into at some length, opinion delivered October 26, 1927, not yet officially reported. Where the weapon used is not deadly per se, the intent to kill may be presumed from the manner in which such weapon was used, under article 1261, P. C., which likewise should'be charged. We believe further the facts proved place it within the terms of article 1262, P. C., which should be given in charge if the evidence on any subsequent trial justifies it. The article reads as follows:

“If any injury be inflicted in a cruel manner, though with an instrument not likely under ordinary circumstances to produce death, the killing will be manslaughter or murder, according to the facts of the case.”

The court should further have charged on aggravated assault in connection with art. 1263, P. C. See Dugan v. State, 82 Tex. Cr. R. 422, 199 S. W. 616; Neal v. State, 98 Tex. Cr. R. 468, 266 S. W. 410; Mason v. State, 96 Tex. Cr. R. 48, 255 S. W. 986; Collins v. State, supra. This was pointedly called to the court’s attention by proper exception, and the omission was error.

It is insisted that the court erred in his charge in failing to submit the right of self-defense of the appellant against an unlawful attack being made or about to be made on him by deceased less than one endangering life or serious bodily injury to the appellant.

Chapter 12, P. C., contains the law of self-defense in Texas in homicide eases. By express terms of article 1226 of said chapter:

“The attack upon the person of an individual in order to justify homicide must be such as produces a reasonable expectation or fear of death or some serious bodily injury.”

An attack of lesser character than the above may mitigate or reduce the offense, but will not excuse the slayer. While it is true that the right of self-defense exists in all eases, it does not follow that the right to kill coexists with it. The first right may be without thfe last, but the last cannot exist without the first. So in this ease, if it reasonably appeared to appellant that the attack by deceased was less than to kill or do serious bodily injury, the. offense might be reduced to either manslaughter or aggravated assault under a proper charge submitting these issues, but such an attack would in no event justify appellant in slaying deceased.

Bearing in mind, however, that one of the issues in this case is aggravated assault, as well as murder, is a charge correct which authorizes an acquittal only if it reasonably appeared to defendant that he was in danger of death or serious bodily injury? This was the effect of the court’s charge in this case on self-defense. This is correct in a homicide case, but unquestionably too restrictive in an aggravated assault case. Hix v. State, 51 Tex. Cr. R. 431, 102 S. W. 405; Britton v. State, 95 Tex. Cr. R. 209, 253 S. W. 519; Schutz v. State, 96 Tex. Cr. R. 287, 257 S. W. 880. Ah analysis of the authorities on this subject makes it plain, that, while an attack which evidences a purpose less than to kill or do serious bodily injury may reduce the offense below the grade of murder, such an attack cannot justify the defendant, except when his own act is not of a higher grade than aggravated or simple assault, and not then unless he used nó more force than was necessary to protect his person from the assault so made or threatened. Hix v. State, supra.

Aggravated assault being a proper issue in this case, it will be necessary for the court to give a further charge on self-defense in accordance with the views herein expressed.

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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