
    PRICE v. STATE.
    (No. 5719.)
    (Court of Criminal Appeals of Texas.
    March 24, 1920.)
    1. Homicide <§=>268 — Whether weapon is deadly is for the jury.
    Whether a weapon can be deemed a “deadly weapon” is usually for the jury, to be determined according to its size and means whereby it has been used.
    2. Criminal law <§=>l 159(2) — Verdict in prosecution for assault net disturbed unless record devoid of sustaining evidence.
    In prosecution for assault with intent to murder, where every issue possible in the case, assault to murder, aggravated murder, simple assault, and self-defense, had been submitted to the jury, held, court will not disturb the verdict of aggravated assault unless the record be devoid of evidence from which jurors might have fairly reached their conclusion.
    3. Criminal law <§=>741 (I) — Weight of evidence is for jury.
    It is the province of the jury to weigh the evidence and decide the issues of fact under appropriate instructions.
    4. Homicide <®=>I73 — Considerations in determining manner of use of weapon stated.
    In determining the manner of the use of a weapon the jury may consider the relative sizes' and strength of the parties, the character of the weapon, the injury it inflicts, and ail the surrounding circumstances.
    5. Homicide <§=>310(3) —Assault to murder properly submitted.
    Evidence held to warrant submission of issue of assault to murder.
    6. Homicide <§=>310(2) — Aggravated assault held properly submitted.
    In prosecution for assault to murder, issue of aggravated assault held properly submitted.
    7. Homicide <§=>310(2) — Refusal of charge on affray held proper.
    In a prosecution for assault to murder, held, that court properly refused to charge on an affray.
    8. Homicide <3=300(9) — Charge on right to arm in anticipation of danger held unwarranted.
    In prosecution for assault to murder, held, that there were no facts to warrant a charge on the right to arm one’s self in anticipation of danger when engaged in a lawful enterprise.
    9. Affray <§=>I — Mutuality is the distinguishing characteristic.
    The element of mutuality is one of the distinguishing characteristics of an affray.
    10. Homicide <§=>90 — When weapon used is a “deadly weapon” stated.
    A weapon may become deadly when from the manner of its use it is calculated to inflict death or serious bodily injury, but it is unnecessary that an injury be inflicted which is likely to produce death or give rise to apprehension before the weapon be deadly.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Deadly Weapon.]
    11. Criminal law <§=>723(2) — Prosecuting attorney’s statement as to brutality of crime held not ground for reversal.
    In prosecution for assault with intent to murder, county attorney’s remarks that in his judgment no more brutal or dastardly attack had ever been made held no ground for reversal, being merely a strong statement of his conclusion from the evidence. ,
    12. Criminal law <§=>1159(5) — That appellate court would have imposed less punishment not ground for reversal.
    That the punishment-may be more than appellate courts would have inflicted under the statement of facts would never be a reason for. setting aside a verdict.
    13. Assault and battery <§=>69 — Minor injury to fence no justification for aggravated assault.
    That owner of cattle inflicted a minor injury to defendant’s fence in hurriedly crossing the fence io head off his cattle did not justify defendant, who was' 6 feet 2 inches in height, weighing 200 pounds, in beating cattle owner, who weighed only Í50 pounds, until unconscious, with a rock and a stick.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Armstrong Price was convicted of aggravated assault, and lie appeals.
    Affirmed.
    Henry & Barkman and S. I. Robison, all of Texarkana, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was indicted for assault with intent to murder in the criminal district court of Bowie county, Tex., and upon his trial was convicted of an aggravated assault, his punishment being fixed at 18 months in the county jail and a fine of $375.-

The statement of facts is very short, and its testimony sharply conflicting.

The testimony for the state shows that, in an effort to head off some cattle which were turning down a wrong road, Chapman, the injured party, got over appellant’s fence and crossed a comer of his field, and after turning the cattle, and walking behind them some 100 yards or more, appellant appeared and demanded that Chapman come back and fix his fence. Upon Chapman’s refusal, appellant said he would make him do it, and started at Chapman, picking up a rock about the size of witness’ fist, and a stick about as large as his wrist, and when he reached a point about 10 feet from Chapman appellant threw the rock, striking Chapman on the head and stunning him so that he did not know whether he fell or just staggered. Appellant followed this with a blow on Chapman’s head with the stick, which knocked the latter down and dazed him; and when he came to his senses appellant had him by the foot and was beating him with a stick. Chapman had a gash in his head caused by the blow from the rock and a knot on his head, and black and blue places on his body, from the effects of the blows with the stick.

Appellant was a large man, being 6 feet 2 inches in height, and weighing about 200 pounds. Chapman was a smaller man, weighing about 150, pounds.

Just before appellant threw the rock, he said to Chapman, “X will kill you.” A negro boy, who was with Chapman, assisting him in driving his cattle, corroborated witness Chapman throughout, and stated also that the latter was knocked down twice, once by the blow from the rock, and again by the blow with the stick.

Appellant and his wife, who are negroes, both stated that when Chapman crossed the fence he “tore it down”; that, when appellant called Chapman and asked him if he tore down the fence, the latter said he “did not give a damn”, and that, when appellant told Chapman he had to fix it up, the- latter told appellant to “go to hell,” and called him a “black son of a bitch,” and told him to come down there and he would kill him. Appellant undeniably went down to where Chapman was, and as he approached he claimed that Chaprpan picked up a stick, and that he then also picked up one, and that as they met, Chapman struck at him, and he then struck Chapman on the head, when the latter fell; and while down appellant admitted striking him further with the stick. Appellant and his wife both denied that he had any rock.

On redirect examination of Chapman and the boy who was with him both denied that Chapman cursed appellant or called him any names before appellant picked up a stick.

In his main charge the trial court instructed the jury on assault with intent to murder, aggravated assault, and also self-defense, and in a special charge, asked by appellant, also charged the law of simple assault. The indictment did not allege the means or instrument used in committing the assault. No ground of aggravation being therein specified, the trial court submitted in his charge, as the means of -aggravation, only the one ground of the weapon used being a deadly weapon.

The first ground for reversal here urged by appellant is that the evidence does not support the verdict of guilty of an assault with a deadly weapon. Many authorities are cited, most of which we have examined, but, as said by Judge Willson in Pierce v. State, 21 Tex. App. 549, 1 S. W. 404, speaking of when a weapon would be deemed deadly, it would be deadly or not “according to its size or the manner of using it, and its character is usually to be determined by the jury.” The trial court in the instant case charged the jury that a deadly weapon was one which, from the manner used, is calculated or is likely to produce death or serious bodily injury.

We find also the following special charge given by the court at the request of appellant: •',

“Gentlemen of the jury, although you may believe that the defendant assaulted L. L. Chapman with a stick and a rock, unless death or serious bodily injury was reasonably calculated to result from the manner of their-use, yOu cannot convict him of any greater offense than a simple assault and battery, and if you have a reasonable doubt as to whether death or serious bodily injury was reasonably calculated to result from the manner of the use of said instrúments, you will give the defendant the benefit of such doubt and acquit him of any higher grade of offense than a simple assault and battery. If you find the defendant guilty of a simple assault and battery, you will assess his punishment at a fine in any sum not less than $5 and not to exceed $25.
“Special charge. No. 8 requested by the defendant.”

At tkp request of appellant, the court also gave the following special charge:

“Gentlemen of the jury, although you may believe from the evidence that the defendant assaulted the witness L. L. Chapman with a deadly weapon or an instrument reasonably calculated to produce death or serious bodily injury from the manner in which it was used and did actually inflict serious bodily injury on the said Chapman, yet if at the time of the said assault, if any, the defendant had no specific intention of killing the said Chapman, he would not be guilty of an assault to murder, and you could not convict him of any higher grade of offense than aggravated assault and battery; and if you have a reasonable doubt as to whether the defendant intended to kill the said Chapman or merely to inflict serious bodily injury on him, if either, you will give him the benefit of such doubt and acquit him of any higher grade of offense than aggravated assault and battery. If you find the defendant guilty of an aggravated assault and battery, you ■will assess his punishment at a fine in any sum not less than $25 and not to exceed $1,000 or imprisonment in jail for any term not less than 30 days nor more than 2 years, or by both such fine apd imprisonment.
“Special charge No. 10 requested by the defendant.” • “

It thus appears that the jury had before them every issue possible in this case, to wit, assault to murder, aggravated assault, simple assault, and self-defense, and, inasmuch as it is their province to weigh the evidence and decide the issues of fact under appropriate instructions, unless the record be devoid of evidence from which they might have fairly reached their conclusion as announced, we should not disturb their verdict.

Taking the state’s case as made by its evidence, we have a man, almost a giant, with a flint rock the size of a man’s fist, at a distance of 10 feet, striking another man on the head therewith, knocking him down and dazing him, and then with a stick as large as a, man’s wrist again knocking the man down and stunning hinj. In determining the manner of the use of a weapon, the jury has the right to consider the relative sizes and strength of the parties, the character of the weapon, the injury it inflicts, and to judge the surrounding circumstances, and, if all the issues be submitted, as in this case, we do not feel at liberty to arbitrarily set aside their verdict.

We cannot agree to the contention that there was error in submitting assault to murder. Both Chapman and the witness Eord testified that just before the assault was actually committed appellant threatened to kill Chapman. In view of what we have said above, it would be useless for us to further state that we think no error was committed in submitting the issue of aggravated assault, and in refusing to charge on an affray.

The court fully charged on the law of self-defense, based on both real and apparent danger, as viewed from appellant’s standpoint at the time, and we think no error was committed in refusing appellant’s special charges on said issue.

There appears to us to be no facts calling for a charge on the right to arm one’s self in anticipation of danger when engaged in a lawful enterprise. Appellant had only a rock and a stick. He picked both up from the ground just before making the assault. Neither he nor any one else contended that he was seeking an interview with Chapman for a peaceable purpose. Indeed, almost the most urgent insistence of appellant here is that he was only guilty of an affray. The element of mutuality is one of the distinguishing characteristics of an affray.

Appellant asked a special charge, as follows:

“Gentlemen of the jury, a serious bodily injury, in law, means an injury which gives rise to apprehension, an injury which is attended with danger to life. Now, if you should believe from the evidence that the defendant did strike the witness Chapman with a 'stick and a rock and did inflict an injury on him, but have a reasonable doubt hs to whether the defendant intended to take the life of Chapman and whether such injury was one attended with danger to the life of the said Chapman, you cannot convict the defendant of assault to murder nor of an aggravated assault and battery, but will acquit Mm of said offenses.”

This charge was refused, and its refusal assigned as error. We do not think this a correct presentation of the law applicable to an assault with a deadly weapon. The conviction was of aggravated assault; the only ground of aggravation submitted being that the instrument or means used was deadly in character. As we have stated above, a weapon may become deadly when from the manner of its use it is calculated to inflict death or serious bodily injury, but this does not necessarily mean that ah injury must be inflicted which is likely to produce death, or give rise to apprehension, before the weapon be deadly. For instance, an effort may be made to shoot another with a gun, under circumstances not amounting to an assault to murder, and some injury may be inflicted, as where the injured party receives a slight flesh wound; or, again, an assault may be made with a knife capable of inflicting death, and the deadly blow be diverted, so as to inflict but a slight injury. In either illustration it would be error to state to the jury that the weapon used would not be deadly, unless the injury be one attended with apprehension, or danger to life. In the authorities cited by appellant in support of his contention that this charge should have been given the ground of aggravation appears to be that serious bodily, injury was inflicted, and in such case a definition of such injury would be proper. Porter v. State, 60 Tex. Or. R. 588, 132 S. W. 935; Grayson v. State, 42 S. W. 293.

The remarks of the county attorney to the effect that in his judgment no more brutal or dastardly attack had ever been made was merely a strong statement of his conclusion from the evidence, but is no such statement of outside facts or personal abuse as would justify a reversal for erroneous argument. Tha't the punishment may be more than this court would have inflicted under such a statement of facts would never be reason for setting aside a verdict of a jury. No appeal to race passion or prejudice appears in the record, nor does such state of facts therein appear as any wise justified the assault made by appellant. If, in hurriedly crossing appellant’s fence, where he could reach a point to head off his cattle, a post was broken, or other minor injury inflicted to the fence by the injured party, this would furnish no reason why a man 6 feet 2 inches in height, weighing 200 pounds, should pursue a man weighing 150 pounds, and beat him into unconsciousness with a rock and a stick.

The witnesses and the facts were before the jury. Their verdict was sanctioned by the trial court; and, finding no error in the record, the judgment of the trial court is affirmed. 
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