
    TOLSTON v. STATE.
    (No. 6001.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1920.)
    1. Criminal law <&wkey;476 — Whether empty bottle thrown at a man would be likely to kill him held not subject of expert testimony.
    In prosecution for murder committed by throwing a bottle at deceased, involving issue of whether defendant bad an intent to kill when he threw the bottle, question to the physician as to whether an empty quart bottle, thrown 30 feet and striking a man square on the top of the head, was likely to produce death, held to call for improper expert testimony, it calling for a mere conjecture, and not an opinion founded on fact or knowledge acquired as a physician.
    2. Criminal law &wkey;>829(3) — Deadly weapon; refusal of instruction that a bottle was not in itself likely to produce death held error.
    In prosecution for murder committed by throwing -an. empty quart bottle at deceased, where the court in .applying the law to the facts used the expression, “deadly weapon” in both the murder and manslaughter paragraphs in his charge, but nowhere defined what constituted a deadly weapon, refusal of requested instruction, that the bottle was not itself an instrument likely to produce death, on the ground that it was covered by the general charge, held error.
    3.Homicide <5&wkey;268 — An empty quart bottle not per se a dangerous weapon.
    An empty quart bottle is not' per se a dangerous weapon.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    Levi Tolston was convicted of murder, and he appeals.
    Reversed.
    Stanley Thompson, of Houston, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Polk county of murder, and his punishment fixed at 25 years’ confinement in the penitentiary.

He was charged with killing an Indian named Batise by throwing a bottle at him. The main defense was an alibi, but appellant insisted throughout that the evidence was insufficient to show an intent to kill. The evidence is conflicting, but enough appears to support the jury’s conclusion, that appellant was the person who threw the bottle, apparently causing the death of the deceased.

The real issue in the case is whether or not the evidence is sufficient to show appellant’s intent to kill when he threw the bottle, if he did so, and whether errors were committed in matters affecting the question of intent. Over objection by appellant two physicians were permitted to testify for the state and answer affirmatively the following question:

“Doctor, judging from your experience, would you say, in your opinion, that a man weighing about 175 or 180, about 29 years of age, size of the defendant — I think the defendant looks to be 5 feet 10 or 11, or 6 feet — standing about a distance of 30 feet away, on an elevation of about 5 feet, throwing a bottle, a quart bottle, him holding it by • the neck, throwing a round quart bottle that distance, and striking another man in the top of the head, who at that time was in a stooping position, wearing a hat, with hair on his head, felt hat, striking him square on the top of the head with that bottle, in your opinion would you say that would likely produce death V”

We think this error, and that the question was one which a physician could not answer as an expert. Whether an empty quart bottle, thrown 30 feet and striking a man square on top of the head, would likely produce death, seems to us a matter of pure conjecture, and not an opinion founded on fact or knowledge acquired by reason of the profession of the witness. The character of wound inflicted was not included in the hypothetical question asked. We have held that a physician may state as to the probable cause, nature, and effect of wounds, and the consequences thereof. Branch’s Ann. P. C. § 1853. But in a matter in winch the jury are as competent to judge as the witness, we have held it error to permit the witness to give his opinion. Branch’s Ann. P. C. § 131. Also that no opinion should be allowed that appears to be only conjecture. Warren v. State, 9 Tex. App. 629, 35 Am. Rep. 745; Dowell v. State, 58 Tex. Cr. R. 482, 126 S. W. 871; Hardin v. State, 40 Tex. Cr. R. 219, 49 S. W. 607; Clay v. State, 41 Tex. Cr. R. 656, 56 S. W. 629. Appellant asked oí his witness, Dr. Pullen, if a bottle of the kind in evidence, thrown 30 feet and hitting a man, would, under ordinary circumstances, be likely to kill him. Upon objection by the state that this would be a conclusion of the witness and not expert testimony, the evidence was rejected. We are unable to see any great difference between this question, which was held incompetent, and that asked by the state, objection to which was overruled and the other two physicians permitted to answer. .

Further bearing on his intent, appellant asked a special charge in which he sought to have the jury told that the bottle alleged to have been used was not in itself an instrument likely to produce death. This charge was refused, partially because given in the main charge. We have examined the main charge, but find nowhere the statement that said bottle was not per se a deadly weapon, or one not likely to cause death. No witness testified that appellant did more to deceased than throw said bottle at him. The officer who arrested appellant said he had worked up cases in which men had been hit on the head with bottles, and knew of cases where bottles had been thrown and men struck on the head, but that he knew of none where they were killed by such means. The most positive statement from any of the physicians was that from a thrown bottle which struck a man square on top of the head death might possibly result. While the language of the special charge referred to may have been inapt, still we believe it sufficiently called the court’s attention to the fact that he should have charged that a bottle thrown was not a deadly weapon per se. We further observe that in applying the law to the facts the trial court used the expression “deadly weapon” in both the murder and manslaughter paragraphs of his charge, and yet nowhere in the charge was there a definition of what constituted a deadly weapon. We have held that when the weapon used may or may not be deadly in character, it becomes the duty of the trial court to define what is a deadly weapon (Howard v. State, 18 Tex. App. 348; Dawson v. State, 32 S. W. 895); and that unless the deadly character of the weapon is shown beyond question the failure to so define same is reversible error (Kosmoroski v. State, 59 Tex. Cr. R. 296, 127 S. W. 1056; Wheeler v. State, 56 Tex. Cr. R. 550, 121 S. W. 166). We do not think an empty quart bottle, thrown 30 feet, is per se a deadly weapon, and the charge should have so stated in plain words. This is a most unusual case. Many contradictions appear in the record. No ill will, difficulty, or quarrel seems to have been shown as being between appellant and deceased, who were strangers so far as the record reveals. The most that could be claimed' was that appellant, a negro, objected to the Indian coming to the negro dance hall. We will forego a discussion of the facts in view of the necessity of another trial.

A reversal of the judgment is ordered.  