
    MERKA v. STATE.
    (No. 4415.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.
    On Motion for Rehearing, Jan. 16, 1918.)
    1. Criminal Law <§=>829(3) — Request Covered by Instruction.
    Requested instruction that to convict of murder defendant must be proved to have had the specific intent to kill was fully covered by general instruction that the jury must be satisfied beyond a reasonable doubt that defendant was actuated by malice aforethought, and with specific intent to kill, and the requested instruction need not be given.
    2. Homicide <§=>309(6) — Instructions—Manslaughter.
    In prosecution for murder, evidence held insufficient to raise issue of manslaughter.
    3. Criminal Law <§=>810 — Contradictory Instructions — Manslaughter.!
    In prosecution for murder, where accused requested instruction to acquit if he did not have specific intent to kill, it was proper to refuse instruction submitting manslaughter; the two instructions being contradictory.
    4. Homicide <§=>43 — Manslaughter — Passion-Cause.
    To reduce homicide to manslaughter, it is essential that there be sudden pássion arising from adequate cause.
    5. Homicide <§=>230 — Intent—Evidence.
    Evidence held to show that when accused struck deceased on the head with an ax handle it was his intent to kill him.
    6. Homicide <§=>304 — Instruction — Negligent Homicide.
    Evidence held insufficient to require submission of issue of negligent homicide.
    7. Criminal Law <§=>826 — Trial — Instructions — Time eor Request.
    Where accused in prosecution for murder made no objection to the charge for failure to charge on aggravated assault, and requested no special charge, but after the charge had been read and the argument of all attorneys concluded, except the final argument for the state, accused then asked a charge on aggravated assault, it was properly refused in view of Code Cr. Proc. 1911, art. 737a, added by Acts 33d Leg. c. 138 (Yernon’s Ann. Code Cr. Proc. 1916, art. 737a), prohibiting giving instructions after the' argument begins.
    On Motion for Rehearing.
    8. Homicide <§=>231 — Murder—Malice—Evidence.
    Evidence held insufficient to show express malice on the part of accused in killing deceased.
    9. Homicide .<§=>310(2) — Instructions — Included Offenses — Aggravated Assault.
    In view of Pen. Code 1911, art. 1147, requiring means of causing homicide to be considered on intent, article 1148, providing that if injury be inflicted in cruel manner with instrument not likely to produce death the killing will be manslaughter -or murder according to the facts, article 1149, providing that where a homicide occurs under the influence of sudden passion, but by means not calculated to produce death, the party may be prosecuted for any grade of assault and battery, and ■ an ax handle not being per se a deadly weapon, it was for the jury whether the manner of its use clearly showed intention to kill, and the jury should have been instructed on aggravated assault.
    10. Criminal Law <§=>1056(1) — Appeal.
    An omission to charge is not subject to review in the absence of exception or proffered special charge at the time of trial.
    11. Homicide <§=309 (3) — Questions eor Jury —Manslaughter.
    Where instrument in homicide is not per se deadly weapon, manslaughter need not be submitted on proof of sudden passion without proof of adequate cause arousing such passion.
    Appeal from Criminal District Court, Williamson County; George Calhoun, Judge.
    John Merka was convicted of murder, and he appeals. Affirmed. On motion for rehearing.
    Motion overruled.
    J. F. Taulbee and A. S. Fisher, both of Georgetown, H. C. Mantor and H. Z. Daril, both of Taylor, and A.- S. Fisher, Jr., of Georgetown, for appellant. E. B. Hendricks, Asst. At'ty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of the murder of W. G. Jones, and his punishment assessed at 20 years in .the penitentiary. The facts of the case were established by clear, undisputed, and unim-peached testimony.

Deceased was a man of small stature, 54 years old, and weighed about 125 pounds. He lived with his family at Waterloo, about 5½ miles north of Taylor. Appellant, as most of the witnesses designated him, was a young man. He was a little larger than Jones, and lived at or near Taylor. One witness said be was about 19 years old at tbe time of tbe trial, in January, 1917. Tbe day before appellant billed deceased, be went to deceased’s place. Mrs. Jones, deceased’s widow, swore be was there and sbe saw him talking to her husband, but did not bear what be was talking about. Tbe next morning about 9 o’clock appellant called up Mrs. Jones over the phone at her borne and asked her if deceased was there. Sbe told him be was not, but was in the field pulling corn. He asked, “Is be coming to town?” Sbe replied, “He is coming this afternoon.” Appellant said, “1 will see him when be comes.” Deceased did go to Taylor that evening with a load of cotton seed, reaching there about 3 o’clock in tbe afternoon of October 2Sth. About that time he went to see the assistant county attorney in bis office. About an hour and a half thereafter be returned,-to this attorney’s office and remained there with tbe attorney and another witness, Mr. Kettler, about 10 or 15 minutes, and had a conversation with the attorney. He and the attorney with Mr. Kettler then left tbe attorney’s office, which was upstairs over the First National Bank, to go to the office of the justice of the peace, diagonally across two streets in another block, perhaps a little more than a half block distant from the ¡attorney’s office. While Mr. Kettler came downstairs with them he stopped on tbe sidewalk near the corner at said bank.

Just before deceased and Mr. Kettler went up to the attorney’s office the second time, deceased and Mr. Kettler were talking on the sidewalk at said hank corner. Appellant came up and spoke to them, saying, “Howdy do.” He then said, “I want to see you, Mr. Jones.” Jones replied, “I will see you a little bit later.” Appellant said, “No, damn it; I want to see you right now.” Jones said, “You go on now; I don’t want to fool with you.” Appellant then walked away from them, and Jones and Kettler at once went up in tbe attorney’s office. Appellant walked down the street about a half block to a store, went in and borrowed an ax handle, which weighed just one pound and a half. He then returned to the bank corner with the ax handle, and waited around there, without doubt, waiting for Mr. Jones to return to the street from the attorney’s office. Just after what was said between appellant and Jones just above related and before appellant got the ax handle Mr. John Fojtik, an acquaintance of appellant, approached him, spoke to him, and asked him what was the matter. He cried and said, “He got trouble with Mr. Jones; he got trouble; Mr. Jones is to see me next time.” A short time before this Mr. Fojtik saw him across the street from the bank and had some conversation then with him about getting him to take him, the witness, out to Waterloo. At that time appellant said nothing about Mr. Jones. When appellant returned to said bank corner with the ax handle, Mr. Fojtik went 'to him and spoke to him again, and said to him, “You had better let that trouble alone and get on.” But appellant commenced crying, and just said, “John, you go away and let me alone.” And the witness vyalked off from him, and had no more talk with him.

When deceased and the attorney left the office of the latter together going to that of the justice of tbe peace, they stepped off of the sidewalk at the bank corner and walked side by side until they got about half way across one street. Appellant with his ax handle then stepped off of the sidewalk at the bank corner following Mr. Jones. After getting a few steps he called to Mr. Jones. Mr. Jones partially turned without stopping and said something. No witness could tell what he said. He and the attorney continued going. Appellant continued after Mr. Jones rapidly. Mr. Jones and the attorney proceeded some steps further, without either of them looking back or knowing that appellant was approaching. When he got close enough to Mr. Jones, he raised the ax handle with both hands, and overhanded struck Mr. Jones on the right side of his head, to the rear of about the center of his head, an awful blow, which felled Mr. Jones on the street. The attorney said that the crash of the blow attracted his attention, and he turned and saw Jones as he fell upon the ground, though he did not see the blow struck. After striking Jones this blow and felling him to the ground, one witness said that appellant still held tbe ax handle in both hands, and gazed at Jones on tbe ground for a short time. Doubtless seeing he had accomplished his intention of killing him, he struck no more, but walked away. Eyewitnesses, who saw and testified to all this, at once went to and picked Mr. Jones’ body up and carried it into one of the stores. Mr. Jones never spoke after appellant struck him. A doctor was immediately summoned and at once had the body removed to bis office, where a hurried examination was made, and ascertaining that the wound was a very serious one, had him taken to tbe sanitarium, where a thorough examination was made of deceased’s skull. The doctors testified that they found bis skull crushed in by the blow an area about the size of a large egg. Tbe bones were driven into the brain tissue; that the skull was broken in as if you would take an egg and knock it. The doctors dressed the wound, removing therefrom two or three pieces of the broken skull about the size of a half dollar. When they first made this thorough examination, and before these bones were removed, a considerable portion of deceased’s brains poured out of the wound. Tbe doctor further testified that while there might be stronger places of the skull than where this blow was struck, it was about the average of the skull; that the skull bones at this point were in two layers — the brain was beneath the second; that this blow crushed both layers. Appellant did not testify at all. When the doctor was testifying that the blow with an ax handle would cause the crushing of deceased’s skull and his death, appellant admitted that that was the eause of his death. Mr. Jones died a few hours after appellant struck him and crushed his skull.

The court gave a full and apt charge submitting murder alone. He correctly stated the case and told the jury what the offense of murder was in accordance with the statute. He correctly and fully defined malice aforethought.

The appellant complained of the court’s refusal to give his special charge as follows:

“That before you 'can convict the defendant in this case you must find from the evidence and beyond a reasonable doubt that at the time the defendant struck the deceased, if he did strike him, with an ax handle, that the defendant had the specific intent to kill deceased, and if you have a reasonable doubt about the intention of the defendant, you must acquit him.”

The judge at the time refused this charge, stating that it was covered by the general charge of the court.

The court in his main charge in one paragraph instructed the jury:

“To warrant a conviction for murder, the jury must be satisfied from the evidence, beyond a reasonable doubt, that the defendant, in the commission of the homicide, was actuated by malice aforethought, and with specific intent to kill.”

In two other paragraphs he instructed them:

“What is meant by deadly weapon, whenever used in this charge, is meant a weapon which from the manner used is calculated or likely to produce death or serious bodily injury.
“The instrument or means by which a homicide is committed are to be taken into consideration in judging the intent of the party offending. If the instrument be oiie 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.”

Then,, in the next paragraph, submitting the case to the jury for a finding, he instructed:

“Bearing in mind all the instructions given you, if you believe from the evidence in this case beyond a reasonable doubt that the defendant John Merka, in the county of Williamson, state of Texas, on or about the 28th day of October, A. I>. 1915, did then and there, unlawfully and with malice aforethought and with intent to kill, and with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, strike one W. G. Jones on the head with an ax handle, and thereby killed the said W. G. Jones, as charged in the indictment, you will find the defendant guilty of murder as charged, and assess his punishment at death, or by confinement in the penitentiary for life or for any term of years not less than five, as the jury may determine and state in their verdict. And unless the jury so find from the evidence the facts to be beyond a reasonable doubt, then they will acquit the defendant and say by their verdict, ‘Not guilty.’ ”

In addition, in a separate paragraph, the court told the jury:

“In all criminal cases the burden of proof is on the state. The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and in case you have a reasonable doubt as to the defendant’s guilt you will acquit him, and say by your verdict, ‘Not guilty.’ ”

Undoubtedly the court’s charge fully covered appellant’s special charge, and the judge correctly refused to give it.

Appellant objected to the court’s charge because he did not submit the question of manslaughter, claiming that the evidence raised that issue, and asked a charge on that subject. The court refused to charge on that subject on the ground, expressly stated by him, that the evidence did not raise the issue. The judge’s action was correct. The evidence did not raise manslaughter.

Even if manslaughter could have been raised by the mere fact that the ax handle might not have been a deadly weapon per se, and that appellant might not have intended to kill the deceased when he struck the fatal blow, yet he cut himself off from a submission of that issue by specially requesting his special charge above copied. Doubtless the court, because of that special charge and appellant’s contention therefor, instructed the jury as he did as copied above, “To warrant a conviction for murder, the jury must be satisfied from the evidence beyond a reasonable doubt that the defendant * * * was actuated by malice aforethought, and with specific intent to kill,” and required the jury to believe beyond a reasonable doubt that at the time he struck him he did so with intent to kill, before they could convict him of murder; “and unless the jury so find from the evidence the facts to be beyond a reasonable doubt, then they will acquit the defendant and say by their verdict, ‘Not guilty.’ ” To have then told the jury that if he did not intend to kill to find him guilty' of manslaughter would have been in direct conflict with his charge telling them if he did not intend to kill “you must acquit him.”

Our statute (article 1128 et seq.) on manslaughter is clearly and fully to the effect, as has many, many times been held by this court, that to constitute manslaughter two things are absolutely necessary: First, sudden passion; and, second, that that passion must arise from an adequate cause. If either of these requisites are wanting, an unlawful homicide cannot be manslaughter.

In Davis v. State, 70 Tex. Cr. R. 37,155 S. W. 546, this court, through Judge Davidson, said:

“It may be laid down as an uncontrovorted proposition that two things are requisite to constitute manslaughter: First, adequate cause; second, existing passion. If these coexist, the homicide is manslaughter. If they do not combine or coexist, it may be murder in one of the degrees.”

In Redman v. State, 67 Tex. Cr. R. 374, 149 S. W. 670, this court said:

“The statute itself defining manslaughter requires two requisites to reduce voluntary homicide to, manslaughter, to wit: ‘Sudden passion,’ and that that passion ‘must arise from an adequate cause.’' If either of these requisites are lacking, the offense cannot be manslaughter, but must be murder in one or the other degrees.”

In McKinney v. State, 8 Tex. App. 626, this court, through Presiding Judge White, said:

“A killing upon such sudden passion as is mentioned may be murder in the second degree, even though the passion was anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection. To make such killing manslaughter, there must actually have existed not only such state or emotion of the mind, but the adequate cause which produced them must also exist. Penal Code, art. 602 [1137]. Insulting words or gestures, or an assault a_n.d battery so slight as to show no intention to inflict pain or injury, may be sufficient to cause the emotions of the mind known as anger, rage, sudden resentment, or terror, to the extent even of rendering it incapable of cool reflection, and yet a killing under such circumstances would not be manslaughter. Why? Because such insulting words or gestures, or such assault and battery, are not adequate causes (P. C. art. 596 [1131]), and manslaughter cannot be predicated upon any voluntary homicide upon sudden passion not arising from an adequate cause (P. C. art. 593 [1128]).”

To precisely the same effect as these cases quoted from is the very recent case of Marshbanks v. State, 192 S. W. 247. And also Wilson v. State, 71 Tex. Cr. R. 403, 160 S. W. 83, Kelly v. State, 68 Tex. Cr. R. 317, 151 S. W. 304, Clore v. State, 26 Tex. App. 624, 10 S. W. 242, Hill v. State, 11 Tex. App. 456, Neyland v. State, 13 Tex. App. 536, Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597, Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836, Ex parte Jones, 31 Tex. Cr. R. 422, 20 S. W. 983, and a great many other cases. The testimony herein not only shows no adequate cause, but it excludes any such idea. It also not only fails to show any sudden passion of appellant aroused by any adequate cause, but it affirmatively shows, and authorized the jury to find and believe, that appellant bore maliqe against deceased, and for that reason slew him, and the jury so believed and found. The evidence would not have authorized the jury to.believe that any passion of appellant against deceased, even if it was sufficient to show any at all other than malice, was caused by what occurred at the time he- killed deceased or that day prior thereto. It shows that appellant went to deceased’s place the day before and sought, and had an interview with, deceased at the time. What then occurred and was said the state could not prove. Appellant had the rignt to refuse to testify and tell anything about it. He had killed the deceased, so that deceased could not tell it. No one was present at the time. Deceased’s widow did not hear what was said and could testify only, as she did, that appellant talked to the deceased at the time. It further shows that he again sought, the deceased the next morning, calling for him at his residence over the phone, and when Mrs. Jones told' him that he was In the field pulling corn, he asked if- he was coming to town. She told him he was that evening, and then he said that he would see him at that time, and he did. He told Mr. Eojtik just a few minutes before he killed the deceased that he had trouble with Mr. Jones, and that Mr. Jones would see -him the next time. He thereupon armed himself with an ax handle. This handle was produced, identified, and introduced in evidence. The jury saw and must have handled it. They, therefore, from it and the other testimony, could tell with certainty, as used and the effect it had, that it was a deadly weapon. Crutchfield v. State, 68 Tex. Cr. R. 476, 152 S. W. 1053; Luttrell v. State, 70 Tex. Cr. R. 193, 157 S. W. 157. From all the facts and circumstances the jury were clearly justified in believing it was a most deadly weapon. As used it killed deceased. As soon as he procured it he .returned to where he knew Mr. Jones would necessarily return shortly. 1-Ie laid in wait there for him. When Mr. Jones did return where he must have seen him he did not then approach him to his face and say or do anything to him, but he waited till Mr. Jones got some distance from him with his back to him. Then he stealthily slipped up behind him, and without any notice to him, and without Mr. Jones knowing his danger, assassinated him by striking him a most powerful blow on the back of his head, crushing his skull, and felling him like a beast to the ground, from which, in a few hours, he died. These facts all show, and authorized the jury to believe, as they did, that appellant bore malice against Mr. Jones, and caused by this malice aforethought he stealthily slipped upon him from behind and struck him such a blow on the skull with such an instrument as to crush his skull and thereby unquestionably show that his intention was to kill him as he did.

Appellant relies upon Johnson v. State, 42 Tex. Cr. R. 377, 60 S. W. 48, as in point on the question of manslaughter. Some expressions of Judge Henderson in the opinion in that case if taken alone might be construed as tending to show that from the mere fact that the instrument used might not be a deadly weapon per se, that that would raise the issue of manslaughter, but when rightly considered in connection with the whole opinion and all the facts of that case, that fact alone was not held to raise manslaughter, but that it should be considered by the jury in determining whether or not appellant intended to kill the deceased. Judge Henderson in that case says that the stick used in that instance was not a weapon ordinarily calculated to produce death. “At least this fact should have been presented to the jury, so that they might pass upon it.” That was done in this case fully and completely by the charge of the court. He expressly told them what was meant by a deadly weapon in clear language, and just such language as has all the time been approved as correct by this court. 2 Branch’s Ann. P. O. p. 935.

From the decisions of this court Mr. Branch correctly says:

“A charge is correct which informs the jury that a deadly weapon is one which, from the manner used, is calculated or likely to produce death or serious bodily injury. Kouns v. State, 8 Tex. App. 13: McReynolds v. State, 4 Tex. App. 328; Hardy v. State, 36 Tex. Cr. R. 400, 87 S. W. 434Wilson v. State, 37 Tex. Cr. R. 159, 38 S. W. 1013; Henry v. .State, 54 S. W. 592; Tollett v. State, 55 S. W. 335; Leal v. State, 46 Tex. Cr. R. 336, 81 S. W. 961; Prescott v. State, 54 Tex. Cr. R. 485, 113 S. W. 530: Harris v. State, 72 Tex. Or. R. 491, 162 S. W. 1150.”

Judge Henderson further said in said Johnson Case that the issue therein for the jury was whether the circumstances showed appellant evidently intended to take the life of the deceased by the blow given; and if he did so, then he might be guilty of murder or manslaughter “according to the other facts of the case.” In that case it does not appear that the court told the jury what would be a deadly weapon as the court did in this case. Doubtless “the other facts” in that case might have raised manslaughter, but in this case they did not.

Now further as to the question of whether or not the evidence in this ease was sufficient to show and authorize the jury to find as they did that appellant intended to kill the deceased. The question of intent, as held by Judge Hurt in Fitch v. State, 37 Tex. Cr. R. 500, 36 S. W. 584, and other cases where the instrument used in the killing might not be a deadly weapon per se, is a fact to be found by the jury from all the evidence, and is .not a matter of law alone. In this case, as shown, this question of fact was expressly left to the jury for its finding from all of the testimony. The court did not charge as a matter of law that appellant’s intent was to kill, but left that question to the jury for it to find and determine as a fact. Now, how is this intent to be shown? As stated, appellant did not testify himself that he had no such intent. He had the right to testify, and he had the right to decline. He declined. Therefore the question of intent must be ascertained from all the facts and circumstances.

Judge White in his Annotated Penal Code, 1901, § 74, says:

“A man is always presumed to intend that which is the necessary, or even probable consequence of his acts, unless the contrary appears. McCoy v. State, 25 Tex. 42, 78 Am. Dec. 520; Aiken v. State, 10 Tex. App. 610; Lane v. State, 16 Tex. App. 172; High v. State, 26 Tex. App. 546, 10 S. W. 238, 8 Am. St. Rep. 488; Wood v. State, 27 Tex. App. 393, 11 S. W. 449; Hatton v. .State, 31 Tex. Cr. R. 586, 21 S. W. 679; Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361.”

Our statute (article 1149, P. C.) in homicide cases expressly states in effect when and how the intent of an accused when he has killed another may be found, stating that where a homicide occurs even 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. This statute was expressly given to the jury by the judge in his charge, and, as stated, the question of what appellant’s intent was at the time when he struck the fatal blow was to be found as a matter of fact by the jury, and they were told that they must believe beyond a reasonable doubt that at the time he struck the blow he did so with the specific intent to kill, and unless the jury found beyond a reasonable doubt from the evidence that that was his specific intent at the time, that they not only could not convict him of murder, but they must find him not guilty. There can be no question but from the charge in this case the jury had to find and- believe beyond a reasonable doubt that it was appellant’s intention to kill the deceased at the time he struck the blow, and unless they did they had to acquit him. The evidence was amply sufficient for the jury to believe that that was his intent, and they so found.

Another contention by appellant is that the court refused to submit the issue of negligent homicide in the second degree. And he asked a charge on that subject which the court refused to give, stating thereon at the time that the evidence did not raise the issue of negligent homicide. The court’s action was right. The evidence did not raise the issue of negligent homicide. A case might well be supposed where negligent homicide would arise. Thus in this case if there had been any testimony, for instance, that appellant merely intended to give the deceased a beating with the ax handle, and that as he attempted to strike him therewith on some other portion of his body other than his skull the deceased dodged or stumbled, or he himself stumbled, and he accidentally struck him on the head when he intended to strike him elsewhere on the body which would not have proved fatal, then negligent homicide might have been in the case; but there is no such state of fact, and none such could be inferred from the evidence. The evidence from no viewpoint would have authorized or justified the court to have submitted a charge on negligent homicide either from the statutes on the subject or any decision thereunder. Mr. Branch in 2 Branch’s Ann. P. C. § 1990, truly states the law thus:

“The facts showing an intentional blow without negligence, the issue of negligent homicide is not raised; on the contrary, if the defendant did not intend to kill but intended to beat the deceased with a stick, a weapon not necessarily deadly but calculated to inflict and which did inflict serious bodily injury, the issue of aggravated assault, but not of negligent homicide, is raised.”

He further says:

“An intentional killing is not negligent homicide. Thompson v. State, 2 Tex. App. 558; Dwyer v. State, 12 Tex. App. 540; Tomerlin v. .State, 26 S. W. 66; Flynn v. State, 43 Tex. Cr. R. 407, 66 S. W. 551.” .

Again, lie says:

“The court need not charge on negligent homicide in the absence of facts showing no apparent intention to kill. Aiken v. State, 10 Tex. Cr. App. 617; Houston v. State, 34 Tex. Cr. R. 587 [31 S. W. 403]; Clifton v. State, 47 Tex. Cr. R. 478 [84 S. W. 237, 111 S. W. 740, 122 Am. St. Rep. 715].'’

The evidence may have raised, and it may have been proper for the court to have charged on, aggravated assault, but the record conclusively shows that the court under the statute, after the evidence was closed and before the argument was begun, submitted his charge to the appellant and his attorneys for their action thereon. They did not then make any objection whatever to the court’s charge because he had failed or omitted to charge on aggravated assault. Neither did they at the time request any special charge .on that subject. However, after the charge of the court had been read to the jury and the argument of all the attorneys concluded, except when the district attorney, who made the final argument for the state, was about concluding his argument, the appellant’s attorneys for the first time then asked a special charge on aggravated assault. The court refused to give it at that time, stating the facts above as the reason therefor. His action was strictly in compliance with the statute which forbade him to give a charge at that stage of the case. Article 737a, O. O. P., as added by Act April 5, 1913, p. 278 (Vernon’s Ann. Code Cr. Proc. 1916, art. 737a).

The judgment is affirmed.

On Motion for Rehearing.

MORROW, J.

The appellant was a youth about 19 years of age, not fully grown. Deceased was a man about 54 years of age, weighing about 125 pounds. On the morning ol' the day of the homicide appellant talked over the telephone to the wife of deceased. Inquiring if deceased was at home, and learning that he asked whether he was coming to town, and on being informed that he would that afternoon, said, “I will see him when he comes.” This occurred about 9 o’clock in the morning. On the day prior to this conversation, the father of appellant had been to the deceased’s home and had a conversation with him. During the afternoon, while the deceased and a witness were in conversation on the street, appellant approached, and after saying “Howdy do” to the deceased, said, “I want to see you, Mr. Jones,” to .which deceased replied, “I will see you a little bit later.” Appellant said, “I want to see you right now.” Deceased replied, “You go on now; I don’t want to fool with you.” Appellant walked away, and the witness and the deceased walked upstairs to the office of Mr. Peters, assistant county attorney. The three, the witness, Jones,’ the deceased, and Peters shortly afterward walked down the stairway together, Peters and deceased starting to walk across the street. The appellant, who in the meantime had borrowed an ax handle, approached them and called to the deceased, and when called, the deceased, who had his back to appellant, turned around and spoke to appellant, and after doing so walked on, appellant following him, striking him one blow .with the ax handle, holding it in both hands when he struck. The deceased fell, was taken to a sanitarium, and shortly thereafter died.

A witness testified that shortly before the homicide, during the afternoon he had met the appellant and had a conversation with him, in which nothing was said about the deceased; that afterward the witness saw him talking with deceased, and thereafter he met appellant again, and he cried and said he had trouble with Mr. Jones, the deceased. At that time he did not have an ax handle, but the witness later saw him with an ax handle crying, and said to him, “John, you had better let that trouble alone and go on.” Appellant would not talk, pushed him away, and said, “Let me alone.”

There was evidence by the attending physician that the blow crushed the skull of deceased; that the bones were driven into the brain tissues on an area about as large as an egg; that two pieces of bone about the size of a half dollar which were broken into' fragments were removed from the head, and as a result of the blow a part of the brain exuded or poured out of the wound.

This is a substantial statement of the facts. I do not find in it any evidence of express malice. The cause of the difficulty or trouble between the appellant and Jones is not disclosed. The facts, I think, are sufficient on the question of manslaughter to raise an issue as to whether his mind was in a.condition for cool reflection, but there is an absence of testimony of the other essential element to reduce the homicide to manslaughter, namely, evidence of adequate cause. The appellant’s theory in the trial of the case was to the effect that the issue of manslaughter would exist without proof of adequate cause. This idea was founded upon decisions of this court in the Johnson Case, 42 Tex. Cr. R. 377, 60 S. W. 48; Betts v. State, 60 Tex. Cr. R. 635,133 S. W. 251; Lee v. State, 44 Tex. Cr. R. 460, 72 S. W. 195; Taylor v. State, 41 Tex. Cr. R. 151, 151 S. W. 1106. These cases construe articles of the Code relating to a homicide taking place by the use of a weapon other than a deadly weapon.

Article 1147 is as follows:

“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 appeared.”

Article 1148 is as follows:

“If any injury be inflicted in a cruel manner, though with an instrument not likely under ordinary circumstances to produce death, the killing -will be manslaughter or murder, according to the facts of the case.”

Article 1149 is as follows:

“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 mag be prosecuted for and convicted of any grade of assault and battery.”

The ax handle was not per se a deadly weapon. Branch’s Ann. P. C. § 2102, and cases cited. It therefore became a question of fact for the jury as to whether from the manner in which the ax handle was used, the intention to Mil evidently appeared. Branch’s Ann. P. 0. p. 1180. The court gave the sub- ' stance of this statute (article 1147) in charge to the jury. He submitted no issue except that of murder. Under the facts of the case the instrument not being per se a deadly weapon, and the question of the evident intent to kill, in the manner of its use, being one of fact, the charge to have been complete in submitting the law should have charged on aggravated assault. See Hill v. State, 11 Tex. App. 470, and numerous cases following it listed in Branch’s Ann. P. C. p. 1182. In other words, the jury should have been informed of what offense appellant would have been guilty in the absence of an intent to kill. Beaupre v. State, 70 Tex. Cr. R. 19, 156 S. W. 626.

This being an omission in the charge, however, is not subject to review in the absence of an exception, or proffered special charge at the time of the trial, and the special charge on aggravated assault which was requested by appellant not having been requested until argument was practically completed, its refusal is not available for review.

In Johnson’s Case, 42 Tex. Cr. R. 377, 60 S. W. 48, Judge Henderson, delivering the opinion of this court, used the following language:

“We believe, under our statutes, in every case where it becomes a question whether or not there was an intention to kill on the part of the slayer suggested by the character of weapon used not being deadly, that it is the duty of the court to submit the issue of manslaughter; and, furthermore, if there was no intention to kill, he should submit the issue of aggravated assault. See Fitch v. State, 37 Tex. Cr. R. 500 [36 S. W. 584]; Taylor v. State [51] Tex. Cr. App. [148] 51 S. W. 1106; Dones v. .State, 8 Tex. Cr. App. 112; Whitaker v. State, 12 Tex. Cr. App. 436.”

This does not seem to have been necessary in deciding the case. A similar construction of the statute is given in Taylor v. State, 41 Tex. Cr. R. 148, 51 S. W. 1106; Lee v. State, 44 Tex. Cr. R. 460, 72 S. W. 195; Betts v. State, 60 Tex. Cr. R. 635, 133 S. W. 251.

We believe that in so far as these decisions that lay down the proposition that the statutes quoted above require the submission of manslaughter without proof of adequate cause where the instrument used is not per se a deadly weapon, that they misconceive the purpose and effect of the statute. This is the view of Mr. Branch as stated in his Ann. P. O. p. 1183. This is in accord with the opinion of this court written by Judge Hurt in the Hill Case, 11 Tex. App. 470. Relying upon this interpretation in the published opinions of this court in Johnson v. State, supra, and the other cases mentioned in that connection, appellant’s counsel regarded the evidence such as to require the trial court to submit the charge of manslaughter and excepted to its failure to do so. The exception was general, however; its terms being, in substance, such as were held insufficient in the cases cited in Branch’s Ann. P. C. p. 1131, § 2004. The trial court, guided by the opinion of this court in Hill v. State, supra, and its own interpretation of the statute, held, we think correctly, that the issue of manslaughter was. not raised.

The manner in which the blow was struck with the ax handle, in connection with the circumstances, and the effect of the blow in crushing the bones of the skull of deceased, was such that we would not be justified in holding the evidence insufficient to sustain the finding of intent to kill.

I therefore believe that the motion for rehearing should be overruled.

PRENDERGAST, J.

I concur in overruling the motion. In the original opinion by mistake I stated it was appellant who called on deceased at his home the day before he killed him. It was not appellant, but his father. This mistake was in no way material. against appellant. 
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