
    JONES v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1913.)
    1. Homicide (§ 307) — INSTRUCTIONS — Aggravated Assault.
    In a trial for murder, where there was evidence that deceased and defendant quarreled, that deceased said that she had killed one negro, and would kill him, or that he would kill her, and struck defendant and started to get her knife, and that defendant pushed her out of the buggy, and fatally cut her with a pocketknife, the refusal of an instruction on aggravated assault was error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dee. Dig. § 307.]
    2. Homicide (§ 286) — Instructions—Intent.
    On such facts the court should have charged the provision of Pen. Code 1911, art. 1147, that the instrument or means by which a homicide is committed are to be considered in fixing the intent, and that, if it be one not likely to produce death, it is not presumed that death was intended, unless from the manner of its use such intention appeared.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. § 286.]
    3. Homicide (§ 145) —Assault — “Deadlt Weapon.”
    A pocketknife not so large but that it could be carried in a watch pocket is not a weapon of deadly character as affecting the presumption as to intent.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 262-264; Dec. Dig. § 145.
    
    For other definitions, see Words and Phrases, vol. 2, pp. 1853-1856; vol. 8, p. 7627.)
    4. Homicide (§ 188) — Evidence— Character of Deceased.
    While isolated facts unknown to accused, bearing upon the character of deceased for violence, are inadmissible, evidence that deceased, who was a person of dangerous character, and who told defendant during their quarrel that she had killed one negro, and intended to kill him, had, in fact, killed her husband, was admissible in connection1 with her threat to kill accused as she had another man, though accused was not aware that it was her husband she killed.
    . [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 18S.]
    5. Criminal Law (§ 772) —Homicide (§ 300) — Instructions — Affirmative Defenses.
    The defendant is always entitled to an affirmative presentation of his matters of defense, and the charge on self-defense should not be mixed with other matters.
    [Ed, Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772; Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.] '
    Appeal from District Court, Navarro County; PI. B. Daviss, Judge.
    Jim Jones was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Gibson & Callaway, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, ‘P. J.

Appellant was convicted of manslaughter. The jury acquitted appellant of murder in both degrees. Therefore it is not necessary to state with any degree of particularity the state’s evidence. In a general way the evidence shows that deceased and appellant had been living in adulterous relations — at least, such is the inference from the facts. On the evening of the homicide they .had been in the town of Kerens, appellant having driven there in a buggy. The deceased, Mary Lee Martin, became outraged with appellant for some reason, got in appellant’s buggy, and demanded that he go home with her, which he at first declined. When she told him to get in the buggy and appellant told her he did not want to she said, “You God damn scar-eyed son of a bitch, if you don’t go home with me, you will kill me, or I will kill you.” Appellant did not just at that moment get in the buggy, and deceased started to drive away in the buggy. He then got in the buggy to keep her from carrying off his horse and buggy. Deceased was driving when she left the town of Kerens. After going some distance from town, they got into trouble. The evidence is very confusing, and much in conflict as to how this arose, and what occurred at the time. The state’s theory was that after they got out of the buggy appellant wanted her to get in, and go with him to get some clothing of his which he had left at her house. She had changed her mind, and said she would not go, and was going to return to Kerens. The state’s evidence at this particular point is that appellant told her she must go with him, or he would kill her, or words to that effect, and the difficulty began. Some of the witnesses testified that, while they were in the fight, appellant struck the deceased on the head ■ with a buggy whip, which broke. He then got his knife, and cut her with it, inflicting one blow from which she subsequently died. After striking her with the knife, he helped her into the buggy, and drove away, carrying her to her own home, where she was subsequently found dead. It is not intended to follow out the state’s case on the facts with any detail statement because of the acquittal of murder. Appellant’s testimony substantially was that he had known the deceased three or four years; that he went to Kerens on the Saturday afternoon of and preceding the killing, in a buggy with his brother, reaching that point about 1 o’clock, and hitched his horse to a cultivator south of Mr. Foether’s store. About half past 1 dr 2 o’clock he saw deceased for the first time, and saw her several times during the afternoon. He testifies: That during the first conversation after he reached Kerens 'deceased asked him if he was going home with her. That he informed her he was not, and no further reference was made to the matter until late in the afternoon, when she again asked him if he was going home with her. That he again told her he was not, and she then informed him she was going to take his horse and buggy, and he told her to leave it alone, that he did not want to go to her house. Just before leaving town, he was standing in company with Fred and Gensie Colbert and Noland Tolliver. At this time deceased drove up in his buggy, and was right at him before he saw her. She told him to get in the buggy. He says: “I told her I didn’t want to, and she said, ‘You God damn scar-eyed son of a bitch, if you don’t go home with me, you will kill me, or I will kill you.’ ” That he did not then get in the buggy, and she started away. That he then got in the buggy to keep her from carrying away his horse and buggy. When they started out of the town, deceased was quarrelling with him, and cursing him for a son of a bitch and one thing and another along the road. That she said to him, “I killed one negro, and I will kill you.” When they reached a point just below Mr. Floyd’s, she decided she would go back to town, and he told her he had some clothes down at her house and wanted to go get them, and she said she was not going a God damn step.- That she then hit him on the side of the head with her fist. ' “That hurt, me. She then started into her stocking after her knife, and I pushed her out of the buggy.” That, after he had pushed her out of the buggy, he tried to get her to get back, and go with him and get his clothes, but this she would not do. He says: “I pulled at her and she cut at me, and I cut at her, and she cut my shirt. When I hit her with the buggy whip, she was cutting at me with her knife. I did not have my knife out at that time. It was in my pocket. I have seen the knife which is now shown me before.” Counsel for defendant here showed the defendant the knife which defendant testified he picked up at the scene of the killing, thinking it was his knife. Then appellant states: “That is her knife. That is the knife she had. I said I struck her with the whip because she was cutting at me with her’knife. At that time I had not gotten my knife. I got it in a little while after that.” That he was in his shirt sleeves, and had his knife in his right-hand watch pocket of his pants. He gave a description of the cut on his shirt showing that it was about the waistband of his pants and several inches long. That he had not worn that shirt any more until he wore it the day of the trial and showed it to the jury. He further testified: “I cut that woman with my knife because she was trying to kill me or cut me or something. When I cut at her, I did not know where I hit her. I just knew I hit her up there somewhere. I was not aiming at any particular spot when I cut. I was just cutting anywhere I could. When I reached home that night, there was nobody there but my mother and my wife. After I cut her, she staggered back a little, and I just caught hold of her arm, and carried her to the buggy. When she fell, I did not try to cut her throat or choke her. When I cut or stabbed her, I did not intend to kill her. Just before I drove off I picked up a knife. It was her knife that I picked up. I intended to pick up my knife. I dropped my knife, and she dropped hers, and I picked up her knife.” Without going into further detail of the testimony we think this is sufficient to discuss the main question involved.

1. The court failed and refused to charge on the law of aggravated assault, stating in his qualification to the bill of exception that he did not believe the facts suggested this issue. There is no description of the knife given by any of the witnesses that is as specific or certain as that given by the defendant, above quoted. It is evident that the knife was a pocketknife, and could not have been a very large one if it was carried, as appellant says, in the watch pocket of his pants. The state’s witnesses do not undertake to describe the knife. The wound proved to be a deadly one, and is described as having been inflicted about three inches below the collar bone and a little to the left .of the medium line of the breast. It was in a dangerous locality as testified by the physician, and inflicted at a point where the probabilities were that it would strike an artery. There is practically no evidence in regard to the amount of loss of blood. Appellant requested an instruction submitting the issue of aggravated assault and giving in charge the provisions of article 1147 of the Revised Penal Code. This article reads as follows: “The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; 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.” The weapon not being one of a deadly character, it is not to be presumed that it was such a weapon, and, it not being deadly in its nature, the intent would not be presumed from that fact. Appellant himself testifies that he did not intend to kill her, but was cutting at her because she was cutting at him. It would be a useless consummation of time or words to review this question. It has been so often decided that we will content ourselves by simply citing the cases which made a charge of this sort necessary. Connell v. State, 45 Tex. Cr. R. 153, 75 S. W. 512; Danforth v. State, 44 Tex. Cr. R. 105, 69 S. W. 159; McDowell v. State, 55 Tex. Cr. R. 596, 117 S. W. 831; Snowberger v. State, 58 Tex. Cr. R. 530, 126 S. W. 878; Washington v. State, 53 Tex. Cr. R. 480, 110 S. W. 751, 126 Am. St. Rep. 800; Craiger v. State, 48 Tex. Cr. R. 500, 88 S. W. 208; Crow v. State, 55 Tex. Cr. R. 200, 116 S. W. 52, 21 L. R. A. (N S.) 497; Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361. The question involved has been so thoroughly discussed and reviewed in these cases we dismiss that part of the case by saying that it was error on the part of the court to refuse to give instructions, and submit that issue to the jury.

2. There is another question in the case that appellant insists should reverse the judgment. Without conflict the evidence shows the deceased to have been a woman of dangerous, if not desperate, character. She told appellant during their altercation that she had killed one negro, and she purposed killing him. In this connection appellant offered to prove by the witness Pox that the deceased did kill another negro, who was at the time of his being killed, the husband of the deceased. This was offered for various purposes, and thought by appellant to be germane and permissible under the peculiar facts of the case, as affecting her reputation as dangerous, as well as in connection with her statement to him that she had killed a negro. The court excluded this upon the theory that it was not proposed by defendant to show that he was aware of the fact that she had killed her husband. The general rule is that testimony of isolated facts unknown to the accused that bear upon the reputation and character of deceased for violence would not be admissible. If he was aware of it, or had been informed of it, it would be admissible as tending to affect the mind, and for such other legitimate purposes in the case. While we do not believe, under the peculiar facts of the ease, it would be reversible error, yet, under what has been stated, we are of opinion that it should have gone to the jury for what it was worth in relation to the question of her threats and reputation in regard to being a dangerous woman. She had informed him of the fact that she had killed a negro, but had not specified what negro she had killed. While the fact that the deceased negro was her husband was not material, in view of the fact of his want of knowledge of said fact, but that she had killed another negro was known to him, the mere fact that it was her husband would not exclude the particular fact, and it might have assisted the jury to determine the fact whether or not she was a woman of dangerous character, and one who would execute her threats. If the statement had not been made to defendant by deceased that she killed one negro, then there would have been no error on the part of the court rejecting the testimony. If she stated to the defendant at the time of the difficulty that the negro she had killed was her husband, then it would have been admissible to show that she had killed her husband. The mere fact that she did not designate the particular negro she had killed, when she threatened the defendant, we believe would not, therefore, exclude the evidence that her husband was the negro she had killed. Under all the circumstances, this may not have amounted to a great deal, but still under the peculiar facts of the case we are of opinion that this evidence should have gone to the jury. This seems to be in line with the decision in the Childers Case, 30 Tex. App. 160, 16 S. W. 903, 28 Am. St. Rep. 899, and quite a line of cases which follow, and is in line with the Childers opinion. The deceased in the Childers Case informed appellant of the fact that he killed a man, etc., not specifying who the man was, and stated that he had been in the penitentiary for killing a man. The court held that character of testimony was clearly admissible, and the court in this case seems to have followed the Childers Case in admitting testimony that she had killed one negro at the time she threatened to kill him. If this matter comes up on another trial, we see no reason why the name of the negro could not be produced in evidence.

3. There is some criticism of the charge on self-defense. Upon another trial we suggest to the trial court to give a clear charge on this subject unmixed with other matters in the case. The defendant is always entitled to a clear and affirmative presentation of his defensive matters -whatever they may he.

The judgment is reversed, and the cause is remanded.  