
    SENSOBAUGH v. STATE.
    (No. 6760.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1922.)
    1. Assault and battery —Husband not immune from prosecution for maiming paramour.
    Pen. Code 1911, art 1102, justifying homicide when committed by the husband upon the person of any one taken in the act of adultery with the wife, if the killing takes place before the parties to the act have separated, does not give immunity to the husband, where he inflicts serious bodily injury upon the paramour without intent to kill.
    2. Homicide <S=>II2(3) — Paramour does not forfeit privilege of escape or right to defend his life.
    Under Pen. Code 1911, art. 1102, justifying homicide when committed by the husband upon the person of any one taken in the act of adultery with the wife, if the killing takes place before the parties to the act have separated, the paramour does not forfeit his privilege of escape, nor does he wholly forfeit the right to defend his life, in view of article 1105.
    3. Criminal law <®=)í 134(3) — Manner in which defense of maiming was submitted not considered, where conviction was for aggravated assault.
    Where a husband was convicted of aggravated assault upon the wife’s paramour, the manner in which the defense of maiming was submitted will not be considered.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    J. O. Sensobaugh was convicted of aggravated assault, and he appeals.
    Affirmed.
    Parks & Hall, of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for aggravated assault; punishment fixed at a fine of $300 and confinement in the county jail for a period of 60 days.

Appellant is charged with maiming. Appellant entered his house, and found therein the injured party with the wife of appellant under circumstances justifying the conclusion that they were about to have criminal relations. Appellant presented a gun, but told the injured party that he did not want to kill him. Appellant then tied the injured party, and, while tied, cut off his penis with a razor. The facts are not in dispute, but in justification the appellant contends that he is immune under our statute which provides that—

A “homicide is justifiable when committed by the husband upon the person of any one taken in the act of adultery with the wife; provided, the killing take place before the parties to the act of adultery have separated.” Renal Code, art. 1102.

We have been referred to no authorities supporting this construction of the statute, and we are constrained to believe that it is not sound.

Under the facts, the statute might have justified the appellant had he killed the injured party. He chose, however, not to kill him, but to maim him, or .to inflict serious bodily injury upon him without the intent to kill. We find no warrant for extending the statute so as to give immunity for such conduct. The common law, and in many jurisdictions, we understand, the statutes, do not excuse one -for taking the life of the paramour. Our statute upon the subject is an innovation. Wharton on Homicide, § 239. Even, under our statute, the paramour does not forfeit his privilege of escape, nor does he wholly forfeit his right to defend his life. Reed v. State, 11 Tex. App. 516, 40 Am. Rep. 795. Article 1105 of the Penal Code expressly permits homicide to prevent maiming. The conviction is, under the facts, for aggravated assault, making the infliction of serious bodily injury the ground of aggravation. Doubtless, if serious bodily injury had been inflicted by the appellant in an attempt to kill the injured party, his immunity would be secure under the statute, but the record negatives such an intent, and makes it plain that his intent was not to kill, but to torture and maim the paramour.

The bill of exceptions and special charges have been examined. They, in the main, are directed to presenting the defense of immunity under article 1102 and to various phases of the offense of maiming. The conviction was not for maiming. Hence the consideration .of the criticism of the manner in which that offense was submitted has passed out of the case.

We find no error in the judgment, and an affirmance is ordered. 
      
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