
    McDOWELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 11, 1912.)
    1. Homicide (§ 308) — Tria:d—Instructions.
    An instruction that if the jury believed from the evidence beyond a reasonable doubt that defendant on the specified day, with a knife which was then and there from the manner of its use a deadly weapon, did cut and kill deceased as charged in the indictment, they should find defendant guilty of murder in the second degree, was erroneous as authorizing a conviction, though defendant may have killed deceased in self-defense, or been guilty of no higher offense than manslaughter, or unintentional killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-648; Dec. Dig. § 308.]
    2. Homicide (§ 309) — Sudden Passion-Evidence — Instructions.
    Where defendant and deceased had been intimate friends before the killing, and had had no previous difficulty, and there was no ill will or grudge between them prior to the fight which culminated in the homicide, it was error not to charge in accordance with White’s Ann. Pen. Code 1911, art. 1149, that if defendant killed deceased under the influence of sudden passion, but by the use of means not calculated to produce death, he would not be guilty of homicide, unless it appeared there was a specific intent on his part to kill deceased.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.]
    3. Homicide (§ 309) — 1Trial—Instructions —Evidence.
    Where, in a prosecution for homicide, there was no evidence of provocation other than the blows inflicted on deceased by accused at the time of the difficulty, it was error to charge on manslaughter that the provocation must arise at the time, and must not be caused or brought about by any former provocation, etc.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.]
    4. Homicide (§ 300) — Instructions—Self-Defense.
    In a prosecution for homicide, an instruction that if the jury believed that deceased was advancing on defendant and striking at him, and defendant had a knife in his hand, with which he had been whittling before the trouble commenced, and while defendant was backing and attempting to ward off the blows of decedent he struck him with the knife unintentionally and accidentally, and with no intent to injure or hurt him, then defendant should be acquitted, was objectionable as infringing the right of self-defense, since if defendant was warding off the blows of deceased, who was striking at defendant while he was retreating, and by such means deceased was cut with defendant’s knife, and with no intent on defendant’s part to injure him, then defendant was entitled to an acquittal, and if defendant under such circumstances struck deceased with a knife, with or without an intent, he might not be guilty, being entitled to stand on his right of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614r-632; Dec. Dig. § 300.]
    Appeal from District Court, Collin County; J. M. Pearson, Judge.
    Clint McDowell was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Clarence Merritt, of McKinney, for appellant. C. E. Lane, Asst. Atty.' Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of murder in the second degree; his punishment being assessed at five years confinement in the penitentiary.

Submitting the issue of murder in the second degree, the court thus charged the jury: “If you believe from the evidence beyond a reasonable doubt that the defendant, in the county of Collin and state of Texas, on the 21st day of May, 1911, as alleged, with a knife which was then and there from the manner of its use, a deadly weapon, did cut T. W. Allred and thereby kill T. W. Allred as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the state penitentiary for any period that the jury may determine and state in their verdict, provided it be not less than five years.” There were quite a number of exceptions to this charge urged below and insisted upon as grounds for reversal here. This charge has been condemned in many cases as being incorrect. It would authorize the conviction of appellant for murder in the second degree, although he may have killed in self-defense, or have been guilty of no higher offense than manslaughter, or even if it was an unintentional killing. • For this error the judgment must be reversed. Clark v. State, 51 Tex. Cr. R. 519, 102 S. W. 1136; Best v. State, 58 Tex. Cr. R. 327, 125 S. W. 909; Smith v. State, 57 Tex. Cr. R. 585, 124 S. W. 679; Patton v. State, 62 Tex. Cr. R. 71, 136 S. W. 459; Anderson v. State, 144 S. W. 282.

It is contended the court erred in not charging the provisions of article 1149 of the Revised Penal Code, to the effect that if they believed defendant killed the deceased under the influence of sudden passion, but by the use of means not calculated to produce death, defendant would not be guilty of homicide, unless it appeared that there was a specific intent on the part of the defendant to. kill the deceased. It seems that the evidence in this connection raised several issues: First, that appellant intentionally-stabbed tbe deceased; second, that it was an accident; third, that appellant did not intend to kill deceased; fourth, .that he was acting in self-defense; and, fifth, that the facts presented manslaughter. The weapon used was a pocketknife. This weapon, of course, might or might not be a deadly weapon, owing to' the manner of its use and the attendant' circumstances. Some of the evidence for the state indicates that appellant intentionally stabbed the deceased, and under circumstances that did not suggest self-defense or manslaughter. Several witnesses testified that the trouble came up between two other parties than the defendant and deceased, and appellant said “let them have a fair fist fight.” The deceased interfered and used violent epithets towards appellant, and struck him one or more licks, causing pain and bloodshed; that appellant was backing away, and did back 15 or 18 feet from the deceased who was following him up, inflicting the blows mentioned. Appellant’s testimony would suggest that he was acting in self-defense, that he had his knife in his hand whittling at the time of the difficulty, and was squatting down or was kneeling down on the ground at the time deceased first struck him. The testimony all shows without contradiction that defendant and deceased were young men barely grown, had been intimate friends and “chums,” and, so far as the record is concerned, they seemed not to have had any previous difficulty. Some of the testimony shows just immediately prior to the trouble they had their arms around each other, both somewhat under the influence of intoxicants. This was in a friendly manner. It may be stated as an undisputed fact from the evidence that the difficulty came up all in a moment, and that there was no ill will or grudge between them prior to the incidents of the fight itself. Appellant testified he did not intend to kill his heretofore friend. We are of opinion under these circumstances upon another trial the court should submit to the jury the provisions of the article referred to.

Another error is assigned on the charge of the court with reference to manslaughter. The court instructed the jury in this connection that the provocation must arise at the time, and must not be caused or brought about by any former provocation, etc. Upon another trial the charge should be limited to the facts. There was no provocation testified to by any witness other than the licks inflicted by deceased upon appellant at the time of the difficulty.

The court charged the law of self-defense from real and apparent danger, then followed it immediately with this charge: “If you find and believe from the evidence that Wood Allred was advancing on the defendant and striking at him, and you further believe from the evidence that the defendant had a knife in his hand, which he had had in his hand and was whittling with before the trouble commenced, and that while defendant was backing and attempting to ward off the blows of Wood Allred, and you further believe from the evidence while warding off the blows of his assailant that he struck Wood Allred with the knife unintentionally and accidentally, and with no intent to injure or hurt him, then you will acquit the defendant, and say by your verdict not guilty.” The criticism of this charge as it is given seems to be correct. This would indicate an infringement on the right of self-defense. If appellant was warding off the blows of the deceased, who was striking at him while appellant was retreating, and by this means he cut the deceased with his knife and with no intent to injure, they should acquit. If under those circumstances he struck the deceased with the knife with or without intent, he might be not guilty, and stand upon his right of self-defense. Upon another trial the question of accidental cutting of the deceased should be given disconnected with the theory of self-defense, or at least given in such way as not to infringe the right of self-defense.

For the errors indicated, the judgment is reversed, and the cause is remanded.  