DAVIDSON, Presiding Judge.
The conviction was for assault to murder, the punishment being assessed at two years in the penitentiary.
Appellant was, or had been, in the employ of the Banners’ Union Telephone Company of Alto, at Alto, in Cherokee County. There had been a settlement in the afternoon about two or three o’clock, between the board of directors and appellant, in regard to his wages as manager of the switchboard of the telephone company. This, seems to have grown out of the fact of some delay or trouble with reference to payment of his wages, and we judge from the record that there had been some delay in one or more previous payments. When the meeting occurred in the afternoon and the settlement was had it was understood that appellant was to vacate his position and the company had selected to 'succeed him a young man by the name of Henderson, and that appellant was given a reasonable time to vacate the establishment and ship his goods. That night, some time after dark, some of the directors got together and went to the room where the switchboard was located. Appellant and his wife and Miss Baxter were there. Appellant used the same room where the 'switchboard was situated as a bedroom' for himself and wife. The directors demanded
that appellant should place a cot in this room for Henderson so that he might sleep near the switchboard to answer calls and give attention to work. This appellant declined to permit, as it was his bedroom for himself and his wife and he did not want the young man sleeping in the same room on a cot. The parties became a little warm in their conference and appellant stepped into an adjoining hall, which was under the control of the Masonic Fraternity, and returned in a moment or two and placed something under his coat. Just what this was none of the witnesses knew. The parties insisted that Henderson should take charge at once and sleep in the room. Appellant remarked that if the ladies were not present he would tell them what he thought of them. One of the board of directors remarked, “Well, we will go downstairs.” Appellant accepted and said that he would go. The director changed his mind about the. matter and did not go. Appellant then called three of the board who were present curs, and said to another, C. L. Belters, he did not know what to call him, and to Mr. Henderson he remarked, “You are a scab.” The assaulted party, Perry Bounds, a boy about 16 or 18 years of age, was sitting on the bed not joining in the conversation. There was a gun in the room close to the switchboard which appellant secured and remarked to the effect that he would kill all of them. This produced an immediate exit from the room with the exception of one of the board of directors. As they ran out of the door into the hallway in the direction of the stairway, appellant fired one shot. This struck Perry Bounds. There is a controversy as to whether the'ball entered from the rear or front. It may be judged, however, that the ball entered the front as shown by the testimony of the physician and the general description of the wound, the larger hole being in the rear and the small one in front. It may be fairly concluded that the ball entered the nose and came out behind the right e'ar. At the discharge of the gun the lights went out, the boy fell and one witness testified that as he ran out' he heard him groan. He was in a hurry and did not pay any attention to the boy. Appellant passed out and saw there was some one shot and remarked to the boy, “Well, I did not intend to shoot you.” The hoy got up, went down the street where his wound received attention. He testified on the trial. This is a sufficient statement to bring in review the questions urged for reversal.
1. The 'court charged the jury that if they should believe beyond a reasonable doubt that defendant with a deadly weapon and with malice aforethought, did assault Perry Bound with the specific intent on the part of defendant -to kill and murder him and such assault was committed under circumstances that had said Perry Bounds been killed, the killing would be murder, he would be guilty of an assault with intent to murder; or if they should find from the evidence that appellant unlawfully and with express malice aforethought did shoot into a crowd of persons with a gun and that' such gun was a deadly weapon with-the-specific intent to kill, among, which crowd was Perry
Bounds, and that he shot and wounded Perry Bounds, although he may have intended to shoot some other person in the crowd, then you will find him guilty of assault with intent to murder. And further, if they should find that defendant shot said Bounds but that the shooting was without malice and while his mind was under the immediate influence of sudden passion arising from an adequate cause such as anger, rage, sudden resentment, etc., they would find him not guilty of an assault to murder. The court also charged aggravated assault. It will be noted the indictment charged that the assault was made with malice aforethought upon Perry Bounds with intent to kill him. The particular clause in the charge criticised is that which authorized the conviction of appellant if they should believe that he, with express malice, shot in the crowd and shot Bounds, although he may have intended to shoot some other person in the crowd, then “you will find him guilty of assault with intent to murder.” The contention is sharply and tersely put that appellant would not be guilty of assault with intent to murder Perry Bounds unless he had the specific intent to kill Perry Bounds and that the specific intent to kill some other or any other person in the crowd would not satisfy the demands of our statute. In support of this we are cited to White v. State, 13 Texas Crim. App., 259. By a long list of decisions in this State by this court as well as the Supreme Court, it seems to be well settled that there must be a specific intent to kill. It is claimed that the mere fact that shooting at one party and killing another would not be sufficient, although the killing of the third party might be murder. This is based upon the proposition that there may be a case of murder under such circumstances without the specific intent to kill the party actually killed. After a careful revision of this question we are of opinion that this contention is not sound at least as applicable to the conditions in which the record presents this case. It may be stated that where a party with malice shoots at one man with the purpose of killing him and kills a bystander, or makes a mistake in the identity of the individual killed, this would constitute murder in the second degree by reason of the fact that the slaying party had no purpose or intent of killing the party actually killed. Our reports are full of this character of ease. The case we have here, however, comes under a different statement of facts. It seems to be uncontroverted that when appellant got his gun he made the statement that he would kill all of the party. They began to run out of the room when he fired upon the retreating bunch and the shot took effect in the head of the boy. This boy was one of the crowd in the room, although he took no part in the controversy and said nothing. It is to be presumed from the fact that as the room was only fourteen feet square and lighted that appellant was aware of those who fled through the door and that he saw the boy when he went with the crowd; that he did go with the crowd is evidenced by the fact that he fell in the hallway after passing from the room where appellant and the crowd had been congre
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DAVIDSON, Presiding Judge.
The conviction was for assault to murder, the punishment being assessed at two years in the penitentiary.
Appellant was, or had been, in the employ of the Banners’ Union Telephone Company of Alto, at Alto, in Cherokee County. There had been a settlement in the afternoon about two or three o’clock, between the board of directors and appellant, in regard to his wages as manager of the switchboard of the telephone company. This, seems to have grown out of the fact of some delay or trouble with reference to payment of his wages, and we judge from the record that there had been some delay in one or more previous payments. When the meeting occurred in the afternoon and the settlement was had it was understood that appellant was to vacate his position and the company had selected to 'succeed him a young man by the name of Henderson, and that appellant was given a reasonable time to vacate the establishment and ship his goods. That night, some time after dark, some of the directors got together and went to the room where the switchboard was located. Appellant and his wife and Miss Baxter were there. Appellant used the same room where the 'switchboard was situated as a bedroom' for himself and wife. The directors demanded
that appellant should place a cot in this room for Henderson so that he might sleep near the switchboard to answer calls and give attention to work. This appellant declined to permit, as it was his bedroom for himself and his wife and he did not want the young man sleeping in the same room on a cot. The parties became a little warm in their conference and appellant stepped into an adjoining hall, which was under the control of the Masonic Fraternity, and returned in a moment or two and placed something under his coat. Just what this was none of the witnesses knew. The parties insisted that Henderson should take charge at once and sleep in the room. Appellant remarked that if the ladies were not present he would tell them what he thought of them. One of the board of directors remarked, “Well, we will go downstairs.” Appellant accepted and said that he would go. The director changed his mind about the. matter and did not go. Appellant then called three of the board who were present curs, and said to another, C. L. Belters, he did not know what to call him, and to Mr. Henderson he remarked, “You are a scab.” The assaulted party, Perry Bounds, a boy about 16 or 18 years of age, was sitting on the bed not joining in the conversation. There was a gun in the room close to the switchboard which appellant secured and remarked to the effect that he would kill all of them. This produced an immediate exit from the room with the exception of one of the board of directors. As they ran out of the door into the hallway in the direction of the stairway, appellant fired one shot. This struck Perry Bounds. There is a controversy as to whether the'ball entered from the rear or front. It may be judged, however, that the ball entered the front as shown by the testimony of the physician and the general description of the wound, the larger hole being in the rear and the small one in front. It may be fairly concluded that the ball entered the nose and came out behind the right e'ar. At the discharge of the gun the lights went out, the boy fell and one witness testified that as he ran out' he heard him groan. He was in a hurry and did not pay any attention to the boy. Appellant passed out and saw there was some one shot and remarked to the boy, “Well, I did not intend to shoot you.” The hoy got up, went down the street where his wound received attention. He testified on the trial. This is a sufficient statement to bring in review the questions urged for reversal.
1. The 'court charged the jury that if they should believe beyond a reasonable doubt that defendant with a deadly weapon and with malice aforethought, did assault Perry Bound with the specific intent on the part of defendant -to kill and murder him and such assault was committed under circumstances that had said Perry Bounds been killed, the killing would be murder, he would be guilty of an assault with intent to murder; or if they should find from the evidence that appellant unlawfully and with express malice aforethought did shoot into a crowd of persons with a gun and that' such gun was a deadly weapon with-the-specific intent to kill, among, which crowd was Perry
Bounds, and that he shot and wounded Perry Bounds, although he may have intended to shoot some other person in the crowd, then you will find him guilty of assault with intent to murder. And further, if they should find that defendant shot said Bounds but that the shooting was without malice and while his mind was under the immediate influence of sudden passion arising from an adequate cause such as anger, rage, sudden resentment, etc., they would find him not guilty of an assault to murder. The court also charged aggravated assault. It will be noted the indictment charged that the assault was made with malice aforethought upon Perry Bounds with intent to kill him. The particular clause in the charge criticised is that which authorized the conviction of appellant if they should believe that he, with express malice, shot in the crowd and shot Bounds, although he may have intended to shoot some other person in the crowd, then “you will find him guilty of assault with intent to murder.” The contention is sharply and tersely put that appellant would not be guilty of assault with intent to murder Perry Bounds unless he had the specific intent to kill Perry Bounds and that the specific intent to kill some other or any other person in the crowd would not satisfy the demands of our statute. In support of this we are cited to White v. State, 13 Texas Crim. App., 259. By a long list of decisions in this State by this court as well as the Supreme Court, it seems to be well settled that there must be a specific intent to kill. It is claimed that the mere fact that shooting at one party and killing another would not be sufficient, although the killing of the third party might be murder. This is based upon the proposition that there may be a case of murder under such circumstances without the specific intent to kill the party actually killed. After a careful revision of this question we are of opinion that this contention is not sound at least as applicable to the conditions in which the record presents this case. It may be stated that where a party with malice shoots at one man with the purpose of killing him and kills a bystander, or makes a mistake in the identity of the individual killed, this would constitute murder in the second degree by reason of the fact that the slaying party had no purpose or intent of killing the party actually killed. Our reports are full of this character of ease. The case we have here, however, comes under a different statement of facts. It seems to be uncontroverted that when appellant got his gun he made the statement that he would kill all of the party. They began to run out of the room when he fired upon the retreating bunch and the shot took effect in the head of the boy. This boy was one of the crowd in the room, although he took no part in the controversy and said nothing. It is to be presumed from the fact that as the room was only fourteen feet square and lighted that appellant was aware of those who fled through the door and that he saw the boy when he went with the crowd; that he did go with the crowd is evidenced by the fact that he fell in the hallway after passing from the room where appellant and the crowd had been congre
gated. Now, it seems -to be pretty well settled, as we understand the authorities, that where a party shoot's into a crowd with the specific purpose of killing anyone of -them that it includes all the crowd at which the shot or shots may be directed. Appellant had not named any particular individual he purposed killing but stated that he would kill all of them. Malice, in the absence of evidence or extenuation, excuse, or justification, will be inferred from the act and eondnct of the party in striking or shooting another with a deadly weapon, or from the conduct which shows cruelty of disposition and recklessness of consequences, but is generally inferred from all the circumstances attending the ease. A general proposition is laid down that “where an indiscriminate assault is made on a body of persons, general malice is presumed, as where a gun is fired in the direction of a crowd, . . . or where shooting is done recklessly, regardless of the lives of others. This proposition is found stated in the eighth volume of American-
&
English Encyclopedia of Law, p. 283. That proposition has been clearly sustained by this court in Aiken v. State, 10 Texas Crim. ,App., 610. We understand this rule to include the proposition that -where a party makes threats of killing the first' man he meets, or that he intends to kill by shooting into a crowd that there would be indicated a specific intent to kill, and if he undertook to do so and fired, it would be an assault to murder, or in the other case, if he shot into a crowd intending to kill anyone of them that such threat would include every one in the crowd into which' he shot, although he named no one of them. While appellant under the facts stated had not threatened specifically to shoot anyone of them and the facts seem to indicate that he had nothing against the boy and his ill will was directed against the board of directors who were present, the boy not being one of the board, yet, from the fact that the threat was ■ general that he intended to kill all of them and that his firing into the crowd as they ran out at the close range from which he did fire, and all the facts and circumstances in the case, we are of opinion that the court was justified in giving this charge. The theory of the defense in his proposition-before us is that inasmuch as the indictment charged specifically that appellant shot Perry Bounds with the specific intent to kill him that therefore, the evidence must show pointedly that he had the specific intent to shoot Perry Bounds and that the general statement that he would kill the whole crowd did not include Perry Bounds. We are of opinion there is more plausibility in this proposition than there is of real law. The law has otherwise held in this State, Mathis v. State, 39 Texas Crim. Rep., 549.; Darity v. State, 38 Texas Crim. Rep., 546. If appellant, as the evidence discloses, threatened to kill all of those who were present and as they fled the room appellant fired upon them with a rifle, as the facts show, the specific intent was to kill any or all of them. Therefore, each member of the party present was included in the threat and was in contemplation of his malice. Cases above cited. If this conclusion is correct, it would follow that
the specific intent to kill would obtain as to each of the parties present and whichever one should receive the bullet discharged from the gun would be included within the threat and specific intent. Viewing i't from this standpoint, while this charge is not technically correct in all its language, yet, we are of opinion that under the exception taken to it, which is general, that it would not be of sufficient importance to require a reversal of the judgment. If appellant’s contention is correct, then inasmuch as appellant had not named anyone of those present such an allegation in the indictment could not be proved because appellant had not mentioned anyone specifically. Under the facts, appellant, at very short range, standing in a room fourteen feet square, shooting at the party emerging from' that room, could have selected anyone of the fleeing party to have shot. The boy was not more than eight or ten feet from the door through which they emerged when found shot, and being at' such close range and the room lighted at the time appellant fired, the inference would be that he selected him. We are of opinion that the evidence is sufficient to include the specific intent on the part of appellant to shoot Bounds, and that the same proposition would be true as to anyone of the crowd who were in the room at the time of the threat and shooting. We have treated this question mainly from the standpoint of the specific intent included in the general threat made by appellant just before firing the shot. Viewing this from another standpoint, that is, that appellant stated that he did not intend to shoot Bounds, this would seem to involve the proposition that if appellant shot at one of the other fleeing parties and unintentionally shot Bounds, he could not be guilty of an assault to murder. We do not believe this asserts a correct proposition of law. The question was directly adjudicated against appellant in Mathis v. State, 39 Texas Crim. Rep., 549. Appellant’s contention in that case was that' the court erred in charging the jury that an assault and battery may be committed though the person actually injured thereby was not the person intended to be injured. Judge Henderson, speaking for the court, uses this language: “The contention here is, that before appellant could be guilty of the offense of assault with intent to murder, he must have the specific intent to kill the person assaulted. We do not agree with this contention. An assault with intent to murder can be committed with implied as well as with express malice, and the statute defining this offense does not restrict the intent to kill to the person assaulted. The assault is only required to be with intent to murder, that is, to murder some one, and we hold that if A shoots at B with intent of his malice aforethought to kill and murder B, but accidentally shoots C and inflicts a wound upon him, that the malice is carried over to C, and that this is an assault with implied malice to murder C.” The same proposition we understand to be asserted in Darity v. State, 38 Texas Crim. Rep., 546. So, from either standpoint, whether, under appellant’s
threat to kill anjrone of the crowd present, he shot Bounds or he shot at one of the crowd not intending to hit Bounds but did shoot him, the assault would be with intent to murder under the circumstances of this case.
Therefore, believing the charge to be sufficient, or at least under the circumstances of the case‘not'vitally incorrect, we are of opinion the judgment ought to be affirmed and it is accordingly so ordered.
Affirmed.