
    POOL v. STATE.
    (Court of Criminal Appeals of Texas.
    May 17, 1911.)
    Homicide (§ 290) — Assault to Murder — Instructions — Statutes — Application to Case.
    Pen. Code 1895, art. 717, provides that, the means by which a homicide is committed is to be considered in judging as to intent, and, if the instrument be one not likely to produce death, it is not to be presumed that death is designed, unless from the manner of its use such intention evidently appeared. Article 719 declares that 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 homicide, but may be convicted of any degree of assault and battery. Defendant struck prosecutor in the left breast, inflicting a wound supposed to be about 2% inches deep, but away from, and not toward, the cavity. No one saw the instrument by which the wound was inflicted, and when defendant was discovered he had an open pocket knife, with a blade 2% or 3 inches long, in his coat pocket; but it was not shown that there was any blood on the knife. Held that, the court having charged article 717 in connection with its definition of assault, the court erred, in applying the law to the case, in failing to inform the jury of defendant’s relation to the difficulty, under the law as given in both articles 717 and 719.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 595; Dec. Dig. § 290.]
    Appeal from District Court, Delta County; R. L. Porter, Judge.
    Tom Pool was convicted of assault to murder, and he appeals.
    Reversed.
    Lane & Ratliff and Patteson & Patteson, 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 assault to murder; his punishment being assessed at two years’ confinement in the penitentiary.

A brief statement of the facts shows that three young men were at the depot waiting for the train. Appellant went where they were about the time the train made its appearance. After a short colloquy he inflicted a stab on two of them — one of them while on the ground, and the other on the platform of the car. This case involves the infliction of the wound upon the party on the platform of the car. The wound was in the left breast, and was supposed to be about 2% inches or such matter in depth. The doctor says the wound did not go towards the cavity, “but the other way.” No one saw the instrument with which the wound was inflicted. Later during the night appellant was found in a church asleep, and in his coat pocket was found an open pocket knife, with a blade something like 2y2 or 3 inches in length. The evidence does not show there was blood upon the knife.

Under this state of case the court gave, among other things, article 717 of the Penal Code of 1895. This was given in connection with the definition of assault. It was simply a copy of the statute. When the court came to apply the law to the case, the jury were not instructed with reference to this statute, nor informed of the relation appellant would stand to the difficulty under the law as declared in articles 717 and 719. We are of opinion that the provisions of that article should have been applied by the court in a proper charge submitting the issues to the jury, and because this was not done the judgment will be reversed. We deem it unnecessary to enter into a discussion of the reasons why this should be done, or what was necessary to have been given in the charge, in view of the fact that these matters were discussed very fully and cogently by Judge Hurt in Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361, which case was reviewed in Honeywell v. State, 40 Tex. Cr. R. 199, 49 S. W. 586.

We think this omission in the court’s charge and the failure to properly apply the law as provided by the Legislature in articles 717 and 719, supra, is of sufficient importance to require a reversal of the judgment. It is upon a crucial point in the case, and it might have been, if this law had been properly given with reference to this statute, the jury may have found appellant guilty only of aggravated assault.

There is a question with reference to newly discovered evidence suggested in the motion for new. trial. We deem it unnecessary to review this question, as it may not occur upon another trial. The witness may be found and the testimony produced. In any event, it will not be newly discovered upon another trial.

The judgment is reversed, and the cause is remanded.  