
    DILL v. STATE.
    (No. 5552.)
    (Court of Criminal Appeals of Texas.
    March 3, 1920.)
    1. Schools and school districts @=176— Teacher'mat take pupil outside school GROUNDS POE CHASTISEMENT.
    Eor the purpose of chastising a pupil, a school-teacher may take him beyond the schoolhouse or grounds.
    2. Homicide @=110 — School-teacher has RIGHT ONLY TO PUNISH MODERATELY. ‘
    Under the statute authorizing a schoolteacher to punish his pupils moderately, if the punishment passes beyond that point, and is immoderate, or for the purpose of revenge, or maliciously done, the right does not exist, and the right of self-defense in the pupil obtains.
    3. Homicide- <&wkey;300(S) — Charges required ON ISSUE OP SELF-DEFENSE.
    In a prosecution for manslaughter against a pupil -who killed his school-teacher while being chastised, where the issue was raised whether the teacher’s attempted punishment of the pupil passed beyond proper limits to bring into existence the pupil’s right of self-defense, charges were required on such issue.
    4. Homicide <&wkey;300(3) — Instruction on SELF-DEFENSE IMPROPER AS NOT PRESENTING DEFENDANT’S STANDPOINT.
    In a prosecution for manslaughter against a pupil who killed his teacher while being chastised, the issue being raised of the pupil’s right of self-defense on account of improper chastisement, instruction on the pupil’s right of self-defense held improper as not presenting the case from his standpoint, but from that of the jury.
    5. Homicide @=116(2) — Pupil’s right of' SELF-DEFENSE AGAINST TEACHER MUST BE VIEWED UNDER CIRCUMSTANCES AS HE SAW THEM AT THE TIME.
    If a school-teacher took his pupil beyond the schoolhouse and grounds, not to chastise him as a student for a violation of rules, but out of revenge, or to inflict unnecessary and immoderate punishment in a cruel way, the pupil’s right of self-defense inured, as viewed under the circumstances as he saw them at the time, and not as the jury saw them when he was tried for manslaughter.
    6. Homicide <&wkey;268 — Pocketknife not “deadly weapon” per se.
    A pocketknife was not a deadly weapon per se in relation to a charge of homicide through using it.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Deadly Weapon.]
    7. Assault and battery @=54 — Homicide @=145 — If use of pocketknife did not SHOW INTENT TO KILL, OFFENSE WILL BE AGGRAVATED ASSAULT.
    If the use of a pocketknife in the manner in which it was used did not show evidently an intention to kill, the law excludes the idea that defendant who used the knife did intend to
    kill, and there is no presumption of intention to kill under such circumstances, and the offense would not be higher than aggravated assault, though death actually resulted.
    8. Homicide @=283(1) — Instruction as to presumption of intent from manner of USE OF WEAPON HELD ERRONEOUS.
    In a prosecution of a pupil for killing his teacher by the use of a pocketknife when chastised, instruction that in connection with other facts in evidence the means by which the homicide was committed were to be taken into consideration in judging defendant’s intent, and, if the instrument was not likely to produce death, it is not to be presumed death was designed, unless from the manner used the intention evidently appeared, held erroneous.
    9. Homicide @=Í45 — Presumption defendant WAS NOT GUILTY WHERE WEAPON USED WAS NOT ORDINARILY CALCULATED TO CAUSE DEATH.
    Where the means used to kill deceased were not in their nature ordinarily calculated to produce death, being a pocketknife,1 the law presumes that defendant was not guilty of homicide, unless there is showing of an intention to kill.
    10. Homicide @=286(1) — Statutes on consideration OF MEANS OF KILLING IN JUDGING! INTENT SHOULD HAVE BEEN GIVEN IN CHARGE.
    In a prosecution of a pupil for killing his teacher with a pocketknife while being chastised, defendant pupil’s contention being merely that he did not intend to take a serious thrashing, and used his pocketknife, not to kill, but in self-defense, Pen. Code 1911, arts. 1147, 1149, providing that the instrument whereby a homicide is committed is to be considered in judging of the intent of the offending party, etc., should have been given in the charge to the jury.
    11. Infants @=69 — Boy of 14% convicted of homicide and sentenced for less than 5 YEARS ENTITLED TO BE SENT TO REFORMATORY.
    In prosecution for homicide, defendant, a boy of 14%> years, under Rev. St. 1911, arts. 5229, 5231, as amended by Acts 33d Leg. 1st Called Sess. (1913) c. 6, §§ 9, 11 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5229, 5231), if convicted for a term of less than 5 years, was entitled to be sent to the reformatory instead of the penitentiary.
    Appeal from District Court, Parker County; F. O. MeKinsey, Judge.
    Ray Dill was convicted of manslaughter, and appeals.
    Reversed, and cause remanded.
    Hood & Shadle, of Weatherford, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was allotted a term of 2 years in the penitentiary for manslaughter.

The facts show deceased was a school-teacher and appellant a pupil about 14% years of age. The teacher concluded appellant had been sufficiently obstreperous to require punishment. Instead of punishing him in the schoolhouse or upon the school grounds he took him off beyond these grounds in the edge of some woods "or bushes. The state’s theory was that deceased had a. right to do this, and to chastise him there instead of doing so at the schoolhouse or grounds. Under the authorities we are inclined to agree that for the purpose of chastising the school-teacher may have had the right to carry him to a point beyond the schoolhouse or school grounds. This conclusion would seem to be justified under the authorities. The statute authorizes the school-teacher to punish moderately his pupils. If it passes beyond that, and the punishment is immoderate, or for the purpose of revenge or is maliciously done, then the right does not exist, and the right of self-defense obtains. If deceased undertook to whip the boy in a way that showed revenge or malice, then the purview of the statute should forfeit his right of chastisement and the boy’s right of self-defense became an issue in his favor. The evidence is not satisfactory upon this phase of the case. There is evidence, however, to the effect that the school-teacher at the time had exceeded his authority, and appellant was acting within his legal rights in resisting. The evidence shows that deceased was stabbed with a pocketknife, one stab inflicted, and when the assault was renewed by the school-teacher he was struck on the head with a rock. This was not of any particular force in the case. The serious question in it arose from the use of the pocketknife which resulted in death some days afterward. The wound 'seems not to have been thought fatal or necessarily so, but it did result in death. The conflict in the testimony it is not necessary to notice. The issue was raised which required charges whatever the lower court may have thought of it, or what this court might think: The jury was to pass on it viewed from the defendant’s standpoint.

A charge on self-defense was given to which exception was reserved, and we think correctly. This court submitted the theory of self-defense in its application to the facts as follows:

“The deceased, George Cooper, as a teacher, had the legal right of moderate restraint or correction over the defendant, and had the right to inflict moderate corporal punishment to enforce obedience of any reasonable rule, regulation, or demand made by said deceased in the conduct of the school at the time in question.
“So, if you believe from the evidence that on the occasion in question the deceased, George Cooper, conducted or accompanied the defendant from the schoolhouse and grounds to the point where the difficulty between them is alleged to have occurred, and if you believe the deceased was inflicting, or was about to inflict, corporal punishment upon the defendant, and that such punishment was moderate, and that in so doing the deceased was exercising moderate restraint or correction over the defendant as a pupil, then and in such case, and in event you so believe from the evidence beyond a reasonable doubt, I instruct you that you will disregard the defendant’s plea of self-defense, as under such circumstances he would have no lawful right to cut or stab deceased.
“On the other hand, á teacher has no right to inflict excessive or immoderate punishment upon a pupil, or to inflict punishment upon a pupil merely for the purpose of gratifying the passion of anger or resentment. So if you believe from the evidence that the deceased, in escorting the defendant to the place where the difficulty occurred, or in inflicting, or attempting to inflict, corporal punishment upon the defendant, if he did so, was doing so merely for the purpose of gratifying his anger,” etc., or if they had a reasonable doubt, the defendant would have the right to act in self-defense.

The objection to the above charges is based upon the ground that same presented the case, not from the standpoint of defendant, but that of the jury. We think this exception is well taken. It is not what the jury might think of it in the light of all events and circumstances, but it is the light in which it presented itself to defendant at the time it occurred. If defendant so believed, his rights were the same whether the jury believed it or not as viewed by them in the light of subsequent events. The case must be viewed from defendant’s standpoint, and what prompted him to act at the time that he did act. If he believed that deceased took him out there, not to chastise him as a student for a violation of the rules of the school, but "out of revenge or to inflict unnecessary and immoderate punishment upon him in a cruel way, then appellant’s right of self-defense did inure, and, as viewed from the circumstances as he saw the facts at the time, and not how the jury viewed them at the trial. We think the exception to the court’s charge is well taken.

The court also instructed the jury that they could not convict of manslaughter unless they should believe from the evidence beyond a reasonable doubt that defendant at the time intended to kill deceased, George Cooper, and unless they should so believe they would acquit of manslaughter; “and, in connection with other facts and circumstances in evidence, the means Or instrument by which the homicide was committed are to be taken into consideration in judging of the intent of the defendant; if the instrument or instruments used were not likely to produce death, it is not to be presumed that death was designed, unless, from the manner used, such intention evidently appears.” This is the court’s predicate for a charge on aggravated assault. ■ Various exceptions were urged to this, and we think some of them are well taken. The quoted charge submitting the issue of aggravated assault was general in expression. Article 1147 of the Penal Code provides:

“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.”

Appellant’s evidence shows he did not intend to kill; he used an ordinary pocketknife, and to prevent an attack not within the right of the school-teacher. Even if the accused resented the attack of the schoolteacher and his whipping or threatened whipping, and used his pocketknife when he may not have been authorized to do so, while it might not be perfect self-defense, still it might relieve under the circumstances from a conviction for a felony. The instrument used was one not likely to produce death under ordinary circumstances; it was not a deadly weapon per se. If the use of it in the manner in which it was used did not show evidently an intention to kill, then the law excludes the idea that he did intend to kill. There would be no presumption of death under such circumstances, and the court should so have charged the jury. Under such circumstances the offense would not bo higher than aggravated assault, although death did result. If there was no intent to kill in fact, and the means used were such that ordinarily would not produce death, such facts cannot be taken to show an intent to kill unless that intention evidently appears, and from the weapon and manner of its use.

Attention is also called to article 1149, P. C., which provides:

“Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery.”

The question of sudden passion was in the ease. The means used were not in their nature ordinarily calculated to produce death; same being a pocketknife. Under such cir-cumstances the law presumes he is not guilty of homicide unless it should appear that there was an intention to kill. The intention to kill must be drawn for the state in this case from the facts occurring at the time and precedent facts that were in evidence. If defendant intended to kill and used suitable means to carry out that purpose, the presumption would obtain, so far as the jury was concerned, that he did, for this would be viewing it from his' standpoint, but his view is to the effect and his whole theory of the case was that he did not intend to kill, but that he did not intend to take the serious thrashing impending, and that he used his pocketknife, not for the purpose of killing, but to relieve himself of the situation. These two articles, 1147 and 1149, should have been given in charge to the jury, and' to the mind of the writer were rather controlling .legal phases of the case.

There is another question suggested' claimed to be of fundamental nature. The evidence shows it .‘seems without question that appellant was a boy about 14 years and 6 months of age. Therefore he was within the juvenile law which authorizes, if not requires, in ease of conviction, that he be sent to the reformatory or training ‘school. This was not submitted to the jury by the court, and seems not to have been raised in the trial court. It is suggested here, however, as a fundamental proposition for reversal. We are of opinion that appellant, under articles 5229 and 5231, Revised Civil Statutes, as revised by the Acts of-the First. Called Session of the Thirty-Third Legislature (1913) pages '7, 10, 11 (Vernon’s Sayles’ Ann, Civ. St. 1914, arts. 5229, 5231), was entitled, if convicted for a term of yfears of less than’ 5, to be sent to the reformatory instead of the penitentiary. His punishment was assessed at 2 years. Article 5231, supra, as revised, provides he cannot be sent to the penitentiary unless the punishment is in excess of 5 years, or rather that the juvenile must be sent to the reformatory if his punishment is 6 years or less. Under the view taken by this court in the decisions in McLaren v. State, 199 S. W. 811, and Slade v. State, 212 S. W. 661, and the revision of the juvenile act as above cited, appellant was entitled, if convicted and his punishment assessed under 5 years, to commitment to the training school and not to the penitentiary. It might be, without deciding that question definitely, however, within the authority of this court to reform the judgment in accordance with this law, and so make the judgment and sentence as to place him in the reformatory for 2 years, instead of the penitentiary. Without definitely deciding that question in the present case, as it goes back for another trial, we call attention of the trial court to this matter. It may be under the authority of Ex parte Mathews, 38 Tex. C. R. 617, 44 S. W. 153, that this court would have authority to reform this judgment to conform to the legislative enactment.

For the errors indicated, the judgment will be reversed, and the cause remanded. 
      <8=For other cases see same topic and K3Y-NUMBI3R in all Key-Numbered Digests and Indexes
     