
    BEAUPRE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Homicide (§ 234) — Trial — Evidence —Sufficiency.
    In a prosecution for homicide, evidence held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 482-493; Dec. Dig. § 234.]
    2. Homicide (§ 171) — Evidence — Admissibility.
    In a prosecution for uxoricide, where accused introduced testimony that at the time of the killing he was in great distress and shedding tears, testimony that his grief was feigned is admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 351-358; Dec. Dig. § 171.]
    3. Criminal Law (§ 1166%) — Appeal and Error — Harmless Error.
    Where accused did not exhaust his challenges and no objectionable juror was for.ced on him, errors in the selection of jurymen nmst be considered harmless, and will not be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    4. Homicide (§ 309) — Manslaughter.
    Where there was no evidence presenting the issue of adequate cause tending to produce such a degree of anger, rage, or resentment as to render the mind incapable of cool reflection, a charge on manslaughter is not authorized.
    [Ed. Note. — For other cases, see Homicide. Cent. Dig. §§ 649, 650, 652-655; Dee. Dig. §
    5. Homicide (§ 330) — Trial—Instructions.
    While a hammer in the hands of a vigorous adult male would be a deadly weapon, yet, in the absence of proof as to the physical characteristics of one accused with committing murder with a hammer, a charge that the instrument by which a homicide is committed may be considered in judging the intent of the party, and if it is one not likely to produce death it will not be presumed that death was intended, and that if accused killed deceased with a hammer and such hammer was not an instrument likely to produce death it will not be presumed that death was intended, cannot on appeal be held inapplicable to the evidence.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 697; Dec. Dig. § 330.]
    6. Homicide (§ 307) — Instructions — Included Opeenses — “Aggravated Assault.”
    The killing of another with a weapon not likely to produce death is only aggravated assault in the absence of evidence showing a design to kill, consequently in a-homicide case, where the court properly charged the jury that, if the hammer used in the offense was not an instrument likely to produce death, it cannot be presumed that death was intended, a further instruction on aggravated assault was necessary.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 270, 271.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge'.
    O. P. Beaupre was convicted of murder in the second degree, and he appeals.
    Reversed.
    C. A. Pippin, Co. Atty., of Dallas, and C. E, Lane, Asst. Atty. Gen., -for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

In this case appellant was indicted for murder in the district court of Dallas county, the venue was changed to Ellis county, and on trial he was convicted of murder in the second degree.

Appellant earnestly insists that the evidence will not support the verdict, in that it does not -point out with unerring certainty that appellant is the person who killed Mrs. Beaupre. We have studied the record carefully, and are of the opinion that, taking all the facts and circumstances, the fact that a woman’s screams were heard just prior to the time appellant called his neighbors, the fact that when he approached she showed resistance, being killed with a hammer belonging on the place, and no other person being shown to have been on the place, "the jury was justified in finding that appellant struck the blow.

Nor was there error in the court permitting the two witnesses to state that appellant’s grief on the occasion was feigned. He had proven and was proving by every witness he could the distress he was suffering, the tears he was shedding, and grief he was manifesting, and it would be a strange rule of law to permit this character of testimony, and yet exclude evidence that it was not genuine.

As appellant did not exhaust his challenges, and no objectionable juror was forced on him, the bills in regard to selection of jurymen are presented in a way that we are not called on to review this question.

Where there is no evidence presenting the issue that “adequate cause” existed to produce a degree of .anger, rage, or resentment as to render the mind incapable of cool reflection, the court is not required nor authorized to charge on manslaughter.

There is one question presented, however, which will require a reversal of the ease.' Appellant’s wife was struck on the head with a hammer. This inflicted a wound from which she died in two or three days. The court instructed the jury: “The instrument or means by which a homicide is committed are to be taken into consideration in judging 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. Therefore, if you find from the evidence that the defendant did kill Hattie Beaupre by striking and beating her with a hammer, and you find that said hammer was an instrument not likely to produce death, you will not presume that the death of said Hattie Beaupre was designed by him, unless you find from the evidence beyond a reasonable doubt that from the manner in which it was used such intention evidently appears.” If the hammer was such an instrument to call for this charge, then the jury ought to have been instructed if they so found of what offense appellant would be guilty. If the instrument was not likely to produce death, and the intent to kill was not manifest from the manner of its use, the offense would be of no higher grade than aggravated assault. The court gave the above charge, and leaves the jury without chart or compass as to the verdict they should render in such an event. We have given considerable thought as to whether the above charge was called for under the evidence. A hammer in the hands of a vigorous adult male would be a deadly weapon, and such a charge would be wholly uncalled for. But, as the court in this case saw proper to submit that issue to the jury, and there is no proof of the height, weight, or strength of appellant, and the hammer being introduced in evidence, in deference to the opinion of the judge that this issue was in the ease, we do not feel authorized to so hold. But certainly, if the jury found with the defendant on this issue or issues, the jury should not be authorized nor permitted to find him guilty of murder in the second degree in such state of case, and yet under the charge as given in this case they would feel compelled to so find.

The other matters in the record present no error, but because the charge authorized the jury to find appellant guilty of murder in the second degree on a state of facts which would only justify a verdict for aggravated assault the judgment is reversed, and the cause is remanded.  