
    MITCHELL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Homicibe (§, 307*) — Trial — Instructions — Aggravated Assault.
    Where defendant showed that deceased was misconducting himself at a social function at defendant’s residence, and that, under the impulse of the moment, he struck deceased on the head with a stick without intent to kill him, and where it was not shown that the stick was a deadly weapon, the failure to charge on aggravated assault on defendant’s theory of the case was reversible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.*]
    Appeal from District Court, Waller County ; Sami. J. Styles, Judge.
    Amos Mitchell was convicted of manslaughter, and be appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. J.

Tbe only bill of exceptions in tbe record was reserved to tbe action of tbe court overruling tbe motion for new trial. This does not add any strength to grounds of tbe motion. It is simply an exception to tbe action of tbe court in not. sustaining tbe grounds of tbe motion.

Tbe evidence, in brief, discloses that deceased, Lewis Wade, was struck on tbe bead by tbe defendant with a stick of wood from wbicb lick be died. Tbe evidence is such that tbe two wounds may bave been caused by tbe same blow, and it shows tbe skull was crushed or broken. There is evidence also that tbe first lick struck by appellant broke Wade’s arm, wbicb be threw up to ward off tbe blow, and with tbe remainder of tbe stick of wood deceased was struck on tbe bead. Tbe state makes a case wbicb would warrant conviction. Tbe defendant introduced evidence to tbe effect that be acted under tbe impulse of the moment growing out of a quarrel on account of misconduct of deceased at bis, appellant’s, residence. There was a social function at appellant’s residence at tbe time, and tbe defensive evidence is to tbe effect that deceased was misbehaving himself, out of which grew tbe difficulty. Deceased bad left tbe bouse, and was in tbe yard at the time be was struck. Appellant introduced testimony wbicb tends to show self-defense. The court charged on murder in both degrees, manslaughter, and self-defense, tbe jury asssessing a penalty of three and one-balf years for manslaughter. Appellant testified that when be struck deceased it was with no intent to kill him and be bad no purpose to kill. This was bis theory of the case. The court failed to charge tbe jury with reference to this phase of appellant’s testimony as well as on the issue of aggravated assault. There is no evidence in the record to show tbe size or weight of tbe stick, or that it was a deadly weapon, outside of tbe mentioned fact wbicb was tbe blow inflicted did break his skull, producing death. We are of tbe opinion tbe court should bave charged the jury on appellant’s theory of tbe matter, that inasmuch as there was no evidence that tbe weapon used was a deadly one, and no testimony introduced as to its size or weight, and in view of tbe fact that be testified be bad no purpose or intent to kill deceased, that these matters should have been charged to the jury in order they might pass upon bis side of tbe case. Tbe jury, of course, in acquitting of murder eliminated any question of malice, and decided it was a voluntary killing under adequate cause and sudden passion. Had tbe killing been intentional and voluntary and with a deadly weapon, tbe verdict of tbe jury would be warranted. But his testimony suggested be did not intend to kill, and tbe state failed to prove a deadly weapon, and all tbe facts show a sudden difficulty.

On account of tbe matters above stated, we are of opinion the court erred in not charging with reference to specific intent and aggravated assault, for wbicb reason tbe judgment is reversed, and tbe cause is remanded.  