
    (85 Tex. Cr. R. 371)
    HOLLMAN v. STATE.
    (No. 5361.)
    (Court of Criminal Appeals of Texas.
    May 28, 1919.)
    1. Homicide <©=3268, 286(1) — Weapon Not Deadly Per Se — Intent—Manner of Use-Instruction — Statute.
    A stick, described as a black jack limb about two or three feet long and about as big as witness’ wrist, with which defendant struck and killed deceased, yvas not per se a deadly weapon, and its character as such was a question of fact, notwithstanding death resulted from the blow struck with it; and it was error for the court, after having its attention called thereto, not to charge the substance of Pen. Code 1911, art. 1147, providing that “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.”
    2. Criminal Law <©=3829(5) — Self-Defense— Instruction.
    In a prosecution for murder, the court having given the jury an instruction on the law of self-defense without in any way qualifying it, there was no error in refusing to instruct the jury that appellant had a right to arm himself and seek the deceased for an explanation or discussion of the previous difficulty.
    3. Homicide <©=300(8) — Instruction — Presumption of Deceased’s Intent to Kill-Use of Deadly Weapon — Evidence.
    In a prosecution for murder, where there was evidence that deceased had his knife in his hand, but no evidence describing the knife upon which the jury could predicate a finding that it was a deadly weapon, the failure of the court to instruct the jury on the presumption of intent to kill by the deceased, arising from his use of deadly weapon, was not error.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    John Hollinan was convicted of manslaughter under a charge of murder, and he appeals.
    Judgment reversed.
    Lawhorn & McNair, of Taylor, and Wynne & Wynne, of Kaufman, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The appeal is from a conviction of manslaughter under a charge of murder, and punishment fixed at confinement in the penitentiary for three years.

A short time prior to the homicide appellant (who was a youth 19 years of age) and a son of the deceased got into a difficulty, in which the deceased interfered, and angry words passed between him and the appellant. The deceased, according to some of the testimony, applied to appellant insulting epithets and exhibited his knife in a threatening manner. Subsequently they met, and the homicide took place; the appellant striking the deceased one blow on the head with a stick, fracturing the skull. From the state’s standpoint the appellant when about 15 feteps from the deceased, said: “Mr. Bruce, you called me a son of a bitch, and I came to make you take it back.” Bruce replied, “All right,” when the appellant struck the blow.

The appellant and his witnesses presented the theory: That appellant, after the first difficulty, was informed by his brother that the deceased was willing to make friends, and that appellant approached him for that purpose, and began the conversation by saying: “Mr. Brúce, if I have said anything to hurt your feelings, X want to apologize, and I think you owe me one for what you called me at the schoolhouse.” That the deceased responded by drawing his knife and starting toward the appellant, when appellant picked up a stick that was lying upon the ground to defend himself.

Various exceptions were reserved to the charge of the court and the refusal of requested charges. The stick used was described as a black jack limb, the witness describing it stating, “It was about two or three feet long and about as big as my wrist.” This testimony was given by a girl 14 years of age, and we find in the record no other description of the instrument used nor of its character as a deadly weapon. Our statute (article 1147) provides that “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,” and the court has uniformly held that, in cases where the instrument used was not necessarily a deadly weapon, the court should charge the substance of this article of the statute and inform the-jury in appropriate language that if there was no intent to kill, and the instrument -was not a deadly weapon in the manner used, the jury might find the accused guilty of an aggravated assault. Crow v. State, 55 Tex. Cr. R. 202, 116 S. W. 52, 21 L. R. A. (N. S.) 407, and other cases listed in Branch’s Ann. P. C. p. 1180. The stick used by appellant was not per se a deadly weapon, and its character as such was a question of fact, notwithstanding that death resulted from the blow struck with it. Sheffield v. State, 1 Tex. App. 641; Coker v. State, 59 Tex. Cr. R. 244, 128 S. W. 137; Branch’s Ann. P. C. § 2102; Merka v. State, 199 S. W. 1128.

The failure of the court to observe and apply the proper rule was specifically brought to his attention by exceptions to the charge, as well as requested charges, and is brought forward for review in accord with the statutes.

The court having given to the jury an instruction on the law of self-defense, without in any way qualifying it, there was no error in refusing to instruct the jury that appellant had a right to arm himself and seek the deceased for an explanation or dis\ cussion of the previous difficulty. Such a charge has been held appropriate, and often necessary, in cases in which there was a limitation on the right of self-defense embodied in the court’s charge; but the rule requiring it is limited to cases in which there is such limitation. Williford v. State, 38 Tex. Cr. R. 397, 42 S. W. 972; Smith v. State, 81 Tex. Cr. R. 368, 195 S. W. 599.

There was evidence that at the time of the homicide deceased had his knife’in his hand. We find none, however, descriptive of the knife, or upon which the jury could predicate a finding that it was a deadly weapon. In this state of the evidence we do not regard the failure of the court to instruct the jury on the presumption of intent to kill by the deceased, arising by the use by him of a deadly weapon, as error. Hudson v. State, 59 Tex. Cr. R. 655, 129 S. W. 1125, Ann. Cas. 1912A, 1324.

The error pointed out requires a reversal of the judgment, which is ordered. 
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