MORROW, Presiding Judge.
The offense is manslaughter; punishment fixed at confinement in the penitentiary for a period of -two years.
On a previous trial the appellant had been acquitted of murder.
Appellant was a young man about nineteen years of age. The deceased Catón was about twenty-five years old. The deceased was a much larger and heavier person than the appellant. The deceased was conducting a cafe in the town of Moran, an oil district in Shackleford County. Some of the employees of the deceased were women. The appellant walked from the front to the rear part of the building and was engaged in conversation with one or more of these women when the deceased ordered him to leave the premises. Both appellant and deceased went outside and engaged in an altercation which culminated in the stabbing of the deceased several times by the appellant, two of the wounds being serious. After the deceased was wounded, he was removed by automobile to Cisco, some twenty miles distant, and taken to a hospital where he received medical treatment. His death ensued about ten or twelve hours later. One of the wounds entered the bowels cavity and the intestines protruded; another entered the lung cavity and a hemorrhage resulted.
There was an issue of fact concerning the nature of the wounds; that is, whether they were mortal wounds or whether death would
have ensued had there been more prompt and more scientific attention given to the deceased.
Appellant admitted that he cut and stabbed the deceased with a knife and that after using it he cast the knife aside. The knife was not produced upon the trial, nor was there any testimony showing its size, character or measurement further than what might be inferred from the nature and result of the wounds inflicted upon the deceased.
In instructing upon the law of the case, the court seems to have proceeded upon the theory that the only phase of the evidence calling for a specific application of the law to the issue of aggravated assault was that arising from the evidence tending to show that the wounds were not mortal; that death resulted from an intervening cause, namely, the removal of the deceased from the place of the homicide and the failure of the attending physicians to select the most scientific means in treating him after he reached the sanitarium.
In his brief the appellant insists that there was an issue of want of intent to kill the deceased upon the legal effect of which the jury was not properly informed. We have perceived no exception to the charge which presents this alleged fault for review, but appellant contends that it was brought to the attention of the court in a special charge-which was refused, said special charge being in these words:
“Gentlemen of the Jury: If you believe that the deceased struck the défendant and knocked him down and the defendant was in the act of retreating and asked the deceased to stop, and that the deceased having failed to stop, defendant inflicted injury upon him with a knife, and that the defendant at such time and place did not intend to kill deceased, then and in that event, the defendant would not be guilty of manslaughter.”
In Paragraph 11 of the charge the court instructed the jury that if while the appellant and deceased were standing near each other the deceased knocked him down or advanced on the appellant and that the conduct of the deceased, either alone or in connection with the comparative size and strength of the parties, or taken in connection with all the facts in evidence, there was created in the mind of the appellant, viewed alone from his standpoint at the time, a reasonable expectation of fear of death or serious bodily injury, that the appellant was privileged to use sufficient force to repel the assault, as viewed from his standpoint, and that if in doing so he stabbed and cut the deceased, he was not guilty. This paragraph of the charge seems to have instructed the jury upon that part of the special charge relating to the assault by the deceased and the movements of the appellant.
The court, in Paragraph 5, also gave this instruction to the jury:
“The instrument or means by .which an homicide is committed may be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death, it is not presumed that death was the design unless, from the manner in which it was used,
such intention evidently appears. Where the homicide occurs under the influence of sudden passion, by the use of means not in their nature calculated to produce death the person is not deemed guilty of the homicide unless it appear that there was an intention to kill, and the party from whose act the death resulted may be prosecuted and convicted of any grade of assault and battery, unless the party inflicting the injury or injuries was acting in his necessary self-defense.”
Appellant testified that in striking the blows, he did not intend to kill the deceased. The special charge requested takes no note of the character of the weapon used. If the appellant used, in the manner in which it was intended, a knife which was a deadly weapon, and inflicted mortal wounds upon the deceased, his declaration or testimony that he did not intend to kill him would not be conclusive against the State. The evidence in the case was such as to justify the jury in concluding that the knife used was a deadly weapon. The knife itself was not described. So far as shown by the record, appellant alone knew its description. He cast it aside, and according to some of the circumstances introduced in behalf of the State, he threw it into the creek. At all events, it was not produced; nor was there testimony describing it. The nature of the wounds which the appellant inflicted upon the deceased by using the knife were described by the attending physicians who examined the deceased. According to the State’s testimony, the wounds resulted in the death of the deceased. With this evidence before the jury, the court was not warranted in giving an instruction which assumed that the weapon used was not of a nature reasonably calculated to kill. See Goodman v. State, 49 Texas Crim. Rep., 189; Thomas v. State, 44 Texas Crim. Rep., 344; Walters v. State, 37 Texas Crim. Rep., 388; Scott v. State, 42 Texas Crim. Rep., 607; Ashton v. State, 31 Texas Crim. Rep., 479; Crow v. State, 21 L. R. A., (N. S.) 502, note; Branch’s Ann. Tex. P. C., Sec. 1587, subdivisions 4 and 5.
We take from the opinion of this court, written by Judge Hawkins, in Twyman v. State, 96 Texas Crim. Rep., 441, a statement of the law which is deemed pertinent in the present case, which we quote as follows :
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MORROW, Presiding Judge.
The offense is manslaughter; punishment fixed at confinement in the penitentiary for a period of -two years.
On a previous trial the appellant had been acquitted of murder.
Appellant was a young man about nineteen years of age. The deceased Catón was about twenty-five years old. The deceased was a much larger and heavier person than the appellant. The deceased was conducting a cafe in the town of Moran, an oil district in Shackleford County. Some of the employees of the deceased were women. The appellant walked from the front to the rear part of the building and was engaged in conversation with one or more of these women when the deceased ordered him to leave the premises. Both appellant and deceased went outside and engaged in an altercation which culminated in the stabbing of the deceased several times by the appellant, two of the wounds being serious. After the deceased was wounded, he was removed by automobile to Cisco, some twenty miles distant, and taken to a hospital where he received medical treatment. His death ensued about ten or twelve hours later. One of the wounds entered the bowels cavity and the intestines protruded; another entered the lung cavity and a hemorrhage resulted.
There was an issue of fact concerning the nature of the wounds; that is, whether they were mortal wounds or whether death would
have ensued had there been more prompt and more scientific attention given to the deceased.
Appellant admitted that he cut and stabbed the deceased with a knife and that after using it he cast the knife aside. The knife was not produced upon the trial, nor was there any testimony showing its size, character or measurement further than what might be inferred from the nature and result of the wounds inflicted upon the deceased.
In instructing upon the law of the case, the court seems to have proceeded upon the theory that the only phase of the evidence calling for a specific application of the law to the issue of aggravated assault was that arising from the evidence tending to show that the wounds were not mortal; that death resulted from an intervening cause, namely, the removal of the deceased from the place of the homicide and the failure of the attending physicians to select the most scientific means in treating him after he reached the sanitarium.
In his brief the appellant insists that there was an issue of want of intent to kill the deceased upon the legal effect of which the jury was not properly informed. We have perceived no exception to the charge which presents this alleged fault for review, but appellant contends that it was brought to the attention of the court in a special charge-which was refused, said special charge being in these words:
“Gentlemen of the Jury: If you believe that the deceased struck the défendant and knocked him down and the defendant was in the act of retreating and asked the deceased to stop, and that the deceased having failed to stop, defendant inflicted injury upon him with a knife, and that the defendant at such time and place did not intend to kill deceased, then and in that event, the defendant would not be guilty of manslaughter.”
In Paragraph 11 of the charge the court instructed the jury that if while the appellant and deceased were standing near each other the deceased knocked him down or advanced on the appellant and that the conduct of the deceased, either alone or in connection with the comparative size and strength of the parties, or taken in connection with all the facts in evidence, there was created in the mind of the appellant, viewed alone from his standpoint at the time, a reasonable expectation of fear of death or serious bodily injury, that the appellant was privileged to use sufficient force to repel the assault, as viewed from his standpoint, and that if in doing so he stabbed and cut the deceased, he was not guilty. This paragraph of the charge seems to have instructed the jury upon that part of the special charge relating to the assault by the deceased and the movements of the appellant.
The court, in Paragraph 5, also gave this instruction to the jury:
“The instrument or means by .which an homicide is committed may be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death, it is not presumed that death was the design unless, from the manner in which it was used,
such intention evidently appears. Where the homicide occurs under the influence of sudden passion, by the use of means not in their nature calculated to produce death the person is not deemed guilty of the homicide unless it appear that there was an intention to kill, and the party from whose act the death resulted may be prosecuted and convicted of any grade of assault and battery, unless the party inflicting the injury or injuries was acting in his necessary self-defense.”
Appellant testified that in striking the blows, he did not intend to kill the deceased. The special charge requested takes no note of the character of the weapon used. If the appellant used, in the manner in which it was intended, a knife which was a deadly weapon, and inflicted mortal wounds upon the deceased, his declaration or testimony that he did not intend to kill him would not be conclusive against the State. The evidence in the case was such as to justify the jury in concluding that the knife used was a deadly weapon. The knife itself was not described. So far as shown by the record, appellant alone knew its description. He cast it aside, and according to some of the circumstances introduced in behalf of the State, he threw it into the creek. At all events, it was not produced; nor was there testimony describing it. The nature of the wounds which the appellant inflicted upon the deceased by using the knife were described by the attending physicians who examined the deceased. According to the State’s testimony, the wounds resulted in the death of the deceased. With this evidence before the jury, the court was not warranted in giving an instruction which assumed that the weapon used was not of a nature reasonably calculated to kill. See Goodman v. State, 49 Texas Crim. Rep., 189; Thomas v. State, 44 Texas Crim. Rep., 344; Walters v. State, 37 Texas Crim. Rep., 388; Scott v. State, 42 Texas Crim. Rep., 607; Ashton v. State, 31 Texas Crim. Rep., 479; Crow v. State, 21 L. R. A., (N. S.) 502, note; Branch’s Ann. Tex. P. C., Sec. 1587, subdivisions 4 and 5.
We take from the opinion of this court, written by Judge Hawkins, in Twyman v. State, 96 Texas Crim. Rep., 441, a statement of the law which is deemed pertinent in the present case, which we quote as follows :
“* * * (b) Where violence to one is prompted by malice (cruelty aside) and death results, but the violence is executed by means not likely to produce death, the law does not aid the State by a presumption of intent to kill but by article 1147 the presumption is all the other way, and the party committing the violence would not be deemed guilty of murder unless from the manner in which the means are used the intent to kill evidently appears; the intent to kill becomes a matter of proof and its presence must be shown before the State can convict for murder, (c) If the killing occurs under the influence of sudden passion aroused by adequate cause by the use of means well calculated and likely to produce death, the killing is manslaughter, (d) but if the kill
ing occur in sudden passion, either with or without adequate cause (cruelty aside) and the means used is not likely to produce death, the party killing is not deemed guilty of the homicide unless it appear that there was an intention to kill; here also the intent is not presumed but is a matter of p~oof.”
Many of the decisions of this court are collated in the opinion in the Twyman case, supra.
In the instant case, subdivision five of the court’s charge stated the law more accurately than did the special charge requested. It covered the same subject, and no pertinent exception was addressed to it. The court could not, without doing violence to the State’s case, have given the special charge.
Appellant offered to prove by the witness Cook, a deputy sheriff that some time before the homicide, the witness had told the deceased that it has been reported that he had stated that he intended to keep those women if he had to buckle on a “forty-five in order to do so, and that deceased made no response; that the witness was told by the deceased that he was running his own business and wanted the deputy sheriff to keeo his nose out of it and stay away from his business. The relevancy of this testimony is not made apparent by the bill; nor do We perceive from the record in what particular it was pertinent to any issue in the case.
There are many criticisms to the argument reflected by bills of exception but a reproduction of the language used in many of them is deemed unnecessary. It is sufficient to say that, in the judgment of this court, the bills, as qualified, fail to show abuse of the privilege of argument. In two of the bills complaint is made of the remarks of State’s counsel in these words:
“When the court tells you that you must view if from the defendant’s standpoint, he means that the defendant claims he has a standpoint, but you cannot believe his standpoint to be true.”
Appellant had testified that from his standpoint he was acting in his necessary self-defense. The verity of his testimony was manifestly a proper subject of inquiry by the jury, and the comment by counsel for the State by the remark mentioned appears to be within the scope of legitimate argument. Nor is the argument of the State’s counsel criticised in Bill No. 6 such as would, in our judgment, warrant a reversal. Therein he said:
“You can back me across this room if I am coward enough to back off, and I have no right under the law to use anything but my fists on you to repel your attack just because you are advancing upon me. This is not the law and they know it.”
State’s counsel took the position before the jury that the evidence on the present trial was sufficient to show that the appellant was guilty of murder. It appears in the court’s charge that the appellant had been acquitted of murder upon the evidence on the former trial. It was not
contended by counsel for the State that in the present trial the jury should convict the appellant of more than manslaughter. On a trial for manslaughter the State has the right to prove and make use of in argument, such facts as bore upon the homicide, including malice and motive, not for the purpose of convicting the accused pf murder, but for the purpose of enabling the jury to determine whether he was guilty of manslaughter and to aid them in fixing the penalty if they found him guilty.
There is evidence from which the jury might have concluded that the deceased accompanied the appellant to the outside of the building upon the invitation of the appellant; that the appellant struck the first blow, hitting the deceased in the stomach. It was the theory of the State that at the time this blow was struck, a knife was used which inflicted a wound through which the bowels of the deceased protruded.
The appellant, on the same night after the difficulty, denied to a bystander that he had cut the deceased at all. Commenting upon this, counsel for the State used this language:
“Why, gentlemen, this man, when he was far removed from that difficulty and talking to a friend, why then was he denying it? because he knew he had assassinated that boy and took him unawares and it was his own conscience tearing at him that caused him to deny it.”
By the witness Simmons, as shown by Bill of Exceptions No. 12, appellant sought to show that some days before the homicide, deceased had stated in a barber-shop that he intended to keep women and whisky in his place of business if he had to do so at the point of a pistol. We have discerned nothing in the case which would render this testimony admissible. It was not the proper way to show that the deceased was a violent man.
The evidence is sufficient, and we have failed to find in the complaints of the manner of trial any error which warrants a reversal of the judgment. It is therefore affirmed.