
    MASON v. STATE.
    (No. 7618.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1923.)
    1. Criminal law &wkey;>815(4) — Instruction ignoring intent to kill and nondeadly character of weapon hold erroneous.
    In a manslaughter prosecution, an instruction requiring conviction if the jury found that defendant struck and killed deceased with a windmill sucker rod not in self-defense, and under passion produced by adequate cause, improperly ignored the controverted issue of intent to kill and the fact-that the weapon used was not deadly per se. Pen. Code 1911, arts. 1147, 1149, requiring that, in case of killing with a weapon not calculated to produce death, intent to kill must be shown in order to convict of manslaughter.
    2. Homicide <fc>l45— Intent to kill held not presumed in assault with windmill sucker pipe.
    Under Pen. Code 1911, arts. 1147, 1149, making proof of intent to kill a requisite to conviction of homicide with a hondeadly weapon, a “windmill sucker rod” not being deadly, its use did not create the presumption of an intent to kill, unless the jury believed from the evidence that the instrument was one likely to produce death either from its nature or manner of use.
    3. Homicide <&wkey;286(l)~-Manslaughter instructions held improperly refused.
    In manslaughter prosecution, the evidence of intent being conflicting, instructions that “unless you believe that in the manner used the sucker rod * * * was a deadly weapon, then you cannot convict the defendant, * * * unless you further believe * * * that at the time the blow was struck defendant had a specific intent to kill the deceased,” was improperly refused, in view of Pen. Code 1911, arts. 1147, 1149, making proof of intent to kill a requisite to conviction of homicide with a non-deadly weapon.
    4.Homicide <&wkey;309(l) — Manslaughter instructions held erroneous.
    In a manslaughter prosecution, instructions that, if the jury reasonably doubted whether defendant was guilty and that the killing was not in self-defense, they should acquit him of manslaughter, and determine whether he was guilty of aggravated assault under succeeding instructions does not sufficiently cover the necessity of proving intent in the case' of killing with a nondeadly weapon, although the subsequent paragraphs incorporate the law declared in Pen. Code 1911, arts. 1147, 1149, the jury being given to understand, by the wording of the instruction, that the subsequent paragraphs became important only in the event that a conclusion should be reached against the state on the issue of manslaughter.
    é=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District- Court, Hale County; R. Oi.Joiner, Judge.
    Grady Mason was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Kenneth Bain, of Floydada,' Kinder & Russell and A. B. Martin, all of Plainview, for appellant.
    R. G. Storey, Asst. A tty. Gen., for the State.
   MORROW, P. J.

The offense is manslaughter ; punishment fixed at confinement in the penitentiary for a period of two years.

The facts are stated in the opinion on the former appeals. See Mason v. State, 85 Tex. Cr. R. 254, 211 S. W. 593, and Id., 88 Tex. Cr. R. 642, 228 S. W. 952.

The sixth paragraph of the court’s charge reads thus:

“You are charged that, if you find and believe from the evidence beyond a reasonable • doubt, the defendant, with a windmill sucha' rod, unlawfully killed the deceased, Elder Morris, but not in his own self-defense, * * * (here follows matters relating to adequate cause), and while acting under the immediate influence of sudden passion, produced by the acts, words, or conduct of the deceased, at the time of the difficulty or prior thereto, the defendant struck and hilled the said Elder Morris, he will he guilty of manslaughter, and, if you so believe beyond a reasonable doubt, you will find him guilty of manslaughter, unless you find there was great neglect or manifest improper treatment, and assess his punishment at confinement in the state penitentiary for a term of years not less than two nor more than five years, at your discretion.”

Appellant excepted to this paragraph, and requested the court to read to the jury a special charge containing these words:

“You are instructed that, unless you believe that in the manner used the sucker rod in question was a deadly weapon, then you cannot convict the defendant of manslaughter, unless you further believe beyond a reasonable doubt that at the time the blow was struck the defendant had a specific intent to kill the deceased.”

It cannot be denied that the paragraph of the court’s charge referred to falls short of- fully stating the law applicable to the facts in two respects, namely: (a) It ignores the controverted issue' of intent to kill; and (b) it takes no note of the fact that the weapon used was not per se of a deadly character.

On the former appeal, the charge on self-defense contained a similar omission of which this court took cognizance in the following language:

“Pailure of the court to charge the law applicable to a striking under sudden passion and with an instrument not calculated to produce death was excepted to, and a_ special charge asked containing two said omitted elements which might have reduced the offense to aggravated assault. This was sufficient to have called the court’s attention to the error. The evidence showed that the instrument used was a wooden sucker rod with an iron piece in the end. Both questions, to wit, the deadly character of the instrument, and the fatal nature of the .blow, were raised by the evidence, as well as the mental condition of the appellant at the time of the' difficulty, and we think the court should have given the substance of article 1149, P. 0. to the jury.”

The issue of intent to kill was, under the evidence of the case, important and closely contested, and it was essential that the jury in solving it should be guided by adequate and proper instructions. See Hoover v. State, 87 Tex. Cr. R. 372, 222 S. W. 245, and various cases therein cited construing articles 1147 and 1149 of the Penal Code, in which it is said:

“Art. 1147. 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.”
“Art. 1149. 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.”

That paragraph 6 submitting the issue of manslaughter fails to do so seems clear. By that charge, if the jury believed beyond a reasonable doubt that the appellant, under the influence of sudden passion produced by adequate cause, killed the deceased by striking him with the sucker rod, a conviction of manslaughter might.result. Under the statute, article 1147, a “sucker rod” not being a deadly weapon per se, its use did not create the presumption of an intent to kill, -unless the jury should believe from the evidence that the instrument was one likely to produce death either from its nature or the manner of its use. Vernon’s Tex. Crim. Stat. vol. 1, p. 716. The special charge requested would have cured the fault in the charge, and should have been given, unless it can be said that the omission was cured by expressions in other paragraphs of the charge or special charges given, or that, taken as a whole, the charge was not misleading.

Paragraph 15 of. the court’s charge reads as follows:

“You are instructed that, if you have a reasonable doubt as to whether the defendant is guilty of manslaughter and that said killing was not in his own, self-defense, then you will acquit the defendant of manslaughter and determine whether*the defendant is guilty of an aggravated assault under the succeeding instructions herein given you.”

In subsequent paragraphs of the charge there is incorporated the law declared in articles 1147 and 1149, supra. The difficulty presented is that, in paragraph 15, quoted above, the jury is given to understand that the rule which they are to follow in determining whether the offense was manslaughter is to be found in the antecedent paragraphs; that those subsequent became pertinent only in the event a conclusion had been reached against the state on the issue of manslaughter ; and that, in that event only, they would govern the jury in deciding whether the appellant was entitled to an acquittal or should be convicted of simple assault or aggravated assault. As stated above, the issues are very closely drawn, and, in deciding between the higher and the lower grades of offense, it is not. possible to determine that the jury was not misled. Considering the nature of the evidence and the doubt which is entertained touching the effect which the fault in the charge on manslaughter may have produced upon the minds of the jury, the court is constrained to hold that a new trial should have been granted.

The judgment is therefore reversed, and the cause remanded.  