
    POLK v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1910.)
    1. Homicide (§ 110) —Self-Defense—Intent to Kile.
    Where, when defendant stabbed and killed deceased, deceased was making an assault on defendant with the loaded end of a quirt, which as sought to be used was a deadly weapon, Pen. Code, art. 676, created from such fact a legal presumption that deceased intended to kill defendant, conferring on defendant the absolute right to kill deceased in self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 140-142; Dec. Dig. § 110.]
    2. Criminal Law (§ 829) — Requests to Charge — Instructions Given.
    Where it appeared that deceased, at the time defendant struck and killed him, was making an assault on defendant with a deadly weapon, and defendant was entitled as a matter of law to the benefit of self-defense, an instruction that if defendant did kill deceased by stabbing him with a knife, and when so stabbing him deceased was unlawfully striking or attempting to strike defendant with a quirt, defendant should be acquitted, did not justify the refusal of a request to charge that when a homicide takes place to prevent murder or disfiguring, and the weapon used by the party attempting to commit such murder, maiming, or disfiguring is such as would have been calculated to produce that result, it is presumed that the person so using such weapon designed to inflict the injury.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 829.]
    Appeal from District Court, Colorado County; M. Kennon, Judge.
    Ben Polk was convicted of manslaughter, and be appeals.
    Reversed.
    Brown, Carotbers & Brown, for appellant. F. J. McCord, Asst. Atty. Gen., for tbe State.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of manslaughter, and given the minimum punishment.

The strongest evidence for tbe state is that of tbe witness Nick Johnson to the following effect: That he saw appellant kill deceased, Smith. That when be first came to where tbe parties were, appellant was “squabbling” with Walter Williams. Deceased came up about that time, and appellant asked him, “What have you got to do with this, you black son of a bitch?” Deceased ran and picked up some rocks. Appellant said: “I will take that back. I wasn’t talking to you.” Deceased put down tbe rocks. Thereupon appellant got on bis horse and rode away, and when about 100 feet distant turned in bis saddle and said: “If you will follow me to tbe bottom of the bill, I’ll fight you, you black son of a bitch.” Deceased followed him, and tbe next thing this witness saw was tbe parties fighting. They threw bricks at each other, and deceased bad a quirt with which be was striking appellant. They kept “squabbling,” and never got far apart. Finally appellant made a rush at deceased, and deceased fell. Appellant fell on top of him. This witness saw appellant make a motion with bis arm, but could not say whether be struck deceased with a knife while they were scuffling, before they fell, or after they fell, nor did tbe witness do anything to stop tbe fighting. Tbe witness Gunn, for the state, testified: He saw tbe killing. That when be first saw tbe parties they were “squabbling,” and struck each other. Appellant was on tbe ground, and deceased bad a quirt. They threw brickbats at each other, and moved off a little distance from where they were standing. One brick thrown by appellant struck deceased on tbe back. Deceased struck appellant in the body with a brick. Appellant then ran at deceased, and deceased began to run, and they ran 76 or 80 feet, when deceased turned and began to run backwards. He ran in this manner several steps and fell, and appellant jumped on him and stabbed him with a knife. Hurd testified: That he saw tbe parties on tbe side of tbe road. That appellant was cursing, and deceased said to appellant not to curse him. Appellant then told deceased that he “was not any more to curse than any one else.” Appellant rode down tbe hill, and deceased followed. Tbe next thing this witness saw was deceased grabbed appellant’s quirt from tbe apron of appellant’s overalls and began to strike appellant with tbe butt end of the quirt. Appellant picked up a brick and threw it at deceased, but missed him. Deceased threw a brick at appellant, and bit him in tbe stomach. Deceased ran, and appellant followed. They ran a short distance, when deceased turned with tbe quirt held back in his hand as if to strike appellant. Deceased stumbled and fell, and appellant jumped on him and cut him with a knife. Another witness, Wade, for the state, testified: The parties were fighting. Deceased had a quirt. They were moving backwards and forwards. Part of the time appellant was advancing and deceased retreating, and part of the time deceased was advancing and appellant retreating. They were never far apart. This witness described the movements of the parties pretty much as did the other witnesses. There is a conflict in the testimony as to whether the 'knife wound was inflicted' before or after deceased fell. All the witnesses who testified in regard to the quirt stated that the handle of the quirt was heavily loaded with iron, and could be used easily to inflict death, and that it was in fact a deadly weapon. Lena Hurd testified she saw part of the difficulty, and saw deceased striking appellant on the side with a quirt, and while so striking he was using the loaded end of the quirt. She also saw deceased throw a brickbat at appellant and hit him in the stomach, which “doubled him up.” She saw deceased throw another 'brick at appellant, which struck him on the leg. She did not see appellant strike deceased. When she was noticing the parties, appellant ran behind his horse, was dodging, keeping the horse between himself and deceased, while deceased was striking him. She says she was passing by when this happened, and did not see any more of the difficulty than related.

The evidence further shows appellant was talking with Walter Williams, whom appellant describes as a sort of religious fellow; that when any one cursed around him he would curse, too, and it generally made him mad; that appellant was cursing to worry Walter Williams, but had not said anything to deceased, when deceased walked up and told him to quit cursing him. Appellant said to deceased that he was not cursing him. A few moments later Williams said something, and appellant said to him, “Damn that.” Deceased again walked up to appellant, and said, “I thought I told you to quit cursing me.” Appellant turned, and deceased looked like he wanted to fight, and appellant said, “You look like you want to fight.” Deceased said, “I do.” Appellant said, “Well, I won’t fight you here; but, if you will follow me down to the bayou, I will fight you.” Appellant got on his horse and started away, deceased following. When about half way down to the bayou deceased rushed up, grabbed the quirt out of the apron of the overalls worn by appellant, and began whipping appellant with the quirt end of it. Appellant said to him: “Give me my quirt. If you will give me my quirt, I will go home and let you alone.” This deceased refused to do, but kept striking appellant with it. Finally deceased reversed the quirt, and began striking at the head of appellant with the loaded end. One lick struck appellant on the temple and dazed him. He testified that he had that scar at the time he was testifying, and exhibited it to the jury. This blow stunned appellant, and he slipped, off the opposite side of his horse, picked up a brick, and threw it at, but missed, deceased. Deceased picked up a brick and threw at him, striking him in the stomach. This doubled appellant up, and while he was in a stooping position deceased started at him with the loaded quirt, having the tail end of the quirt in his hand. Realizing, as he said, that this was a deadly weapon, and deceased could kill him with it, he jerked out his pocket knife, opened it, and, as deceased came upon him with the quirt, struck him one blow. All witnesses agree there was but one lick struck with the knife, which proved to be fatal. The knife is described as being a pocket knife with a curved blade about three inches long.

Summed up, the facts briefly show that Williams and appellant were, as the witnesses state, “squabbling.” Deceased came upon the scene and entered into the controversy. Appellant rather deprecated what had been said, but finally told deceased, if he would follow him down to the bayou, he would fight him, as appellant says, with his fist. He rode away, and deceased followed. Before reaching the point designated, deceased ran up by the side of appellant, grabbed his quirt out of the apron of his overalls, began beating him with it, first, with the whip end of the quirt, and then with the loaded end, and this quirt used with the loaded end was a deadly weapon. Appellant made one stab with his knife, and killed deceased. The court charged the jury in regard to murder in both degrees and manslaughter. Appellant having been convicted of manslaughter, the question of murder passes out of the case.

Appellant asked a special instruction in writing, as follows: “When a homicide takes place to prevent murder, maiming, or disfiguring, if the weapon or means used by the party attempting or committing such murder, maiming, or disfiguring are such as would have been calculated to produce that result, it is presumed that the person so using them designed to inflict the injury.” The court charged the jury that if they should find from the evidence that on the occasion under investigation the defendant did kill the deceased by stabbing him with a knife, but that, when he so stabbed the deceased, the deceased was unlawfully striking or attempting to strike the defendant with a quirt, defendant should be acquitted. It is contended by the state that this charge is sufficient on the point indicated by the special charged asked by appellant and refused by the court. The charge asked by appellant should have been given. The weapon as sought to be used was shown to be a deadly weapon. Deceased was making an assault at the time with the loaded end of á quirt, and appellant had the right, from his standpoint, self-defense being in the ease, to believe that deceased intended to kill him. The law provides that under such circumstances the accused will have the right to so believe, and as a matter of law the statute fixes that intent upon the party making such assault. It is the legal presumption arising by provisions of article 676 of the Penal Code.

Por the error pointed out, the judgment is reversed, and the cause is i'emanded.

McCORD, J., being disqualified, WALTER C. LANE, Special Judge, sat in the case.  