WHITE, Presiding Judge.
This is an appeal from a judgment of conviction for an assault with intent to murder.
We do not propose to discuss all the many questions presented in the voluminous record before us, but will content ourselves with disposing of those only which in our opinion present error in themselves, or are liable to afford matter for discussion on another trial of this cause; and the questions which we do not discuss will be those which, in the view we take of them, do not present radical or material error.
With regard to questions as to evidence, it appears that the court, over objection of defendant, permitted the witnesses Joe Cusenberry and W. P. Cusenberry to testify that said W. P. Cusenberry was unarmed and had no gun in his hack at the time he was shot by defendant. One objection to the testimony of Joe Cusenberry was, that he was incompetent on account of his age and lack of intelligence, and consequently could not understand the nature of an oath. We are of opinion that the witness was not incompetent, as shown by the record, and the court did hot abuse its discretion in holding him competent after having fully inquired into the matter by proper examination.
As to the objection that both witnesses were allowed to testify that the defendant was unarmed and had no gun in his hack, in order to show the pertinency of the objection, or rather the pertinency of the evidence, we will state that it is abundantly established by other testimony that the parties had had a previous serious difficulty, and that the prosecutor, W. P. Cusenberry, had made violent threats against defendant, had borrowed or procured a gun some time previous to the shooting which is the subject matter of this prosecution, [445] which gun he had been in the habit of carrying about with him in his hack, and that this fact had been communicated to and was well known by defendant. Testifying to the facts immediately attending the shooting, defendant and Henderson, a witness for the defense, both stated that after the defendant hailed Cusenberry, who was in his hack at .the time, Cusenberry turned round and leaned over in his hack, as though about to get his gun; and the theory of the defense was that the defendant shot him at that time, and was justifiable in doing so upon the ground of reasonable appearances of danger to his life or serious bodily injury to his person. It is contended that to permit the two Cusenberry witnesses to testify that at that particular time Cusenberry did not in fact have a gun in his hack was inadmissible, because the fact that he did not have a gun was not known to the defendant, and such evidence deprived him necessarily, ill the minds of the jury, of his defense, so far as his actions were based upon reasonable appearances of danger. We think the evidence was admissible, because, while the defense was that Cusenberry was leaning over at the time he was shot,, as though he was about to grasp a gun in the hack, the theory of the prosecution, on the other hand, was that he was not leaning over at that time, and could not have been leaning over, as stated by the defendant, for the purpose of grasping his gun, because he had no gun in the hack at the time. We think the evidence was admissible in support of the theory of the prosecution that he was not leaning over at the time for the purpose of grasping a gun.
One of the grounds most earnestly and strenuously insisted upon as error is supposed defects in the charge of the court relative to communicated threats, and self-defense as growing out of such threats. The specific charge objected to is as follows: “You are further instructed, that if you find from the evidence that prior to the time of the alleged assault the said W P. Cusenberry had threatened the life of the defendant, or had threatened to do him some serious bodily harm, and these threats had been communicated to the defendant, such threats of themselves would afford no justification of the offense, unless it be shown that at the time of the alleged assault the said W. P. Cusenberry had done or was in the act of doing some act, or was making some demonstration manifesting an intention then and there to execute or carry out such threats, or which was reasonably calculated, in view of all the evidence and circumstances of the case, viewed and considered from defendant’s standpoint, to produce, and did produce, in the mind of defendant the belief that the said W. P. Cusenberry was about to execute such threats, in which event the defendant would have the right to act upon such reasonable appearance of danger as it appeared to him at the time of the shooting, and viewed in the light of all the facts known to him at the time of the shooting, notwithstanding such danger might not in fact have been real, and the shooting, under such cir[446] cumstances would be justifiable; and if you find the facts so to be you will render a verdict of not guilty, and acquit the defendant, unless you should further believe from the evidence beyond a reasonable doubt that the defendant provoked the difficulty with said W. P. Cusenberry, at the time of said assault, in order to have a pretext for killing said Ousenberry or doing him some serious bodily harm, and that the defendant did in fact provoke said difficulty with said Ousenberry with such intent, in which event, if you so believe from the evidence beyond a reasonable doubt, the defendant under such circumstances would not have the right to act upon the appearance of danger.”
Appellant excepted to this charge for seven different reasons stated in his bill of exceptions. We are of opinion that the charge is objectionable more as to matter of form than substance. It is all contained in a single sentence or paragraph, and is objectionable in that the unlearned mind of the juror might be unable to grasp, retain, and properly apply the different circumstances, conditions, and contingencies upon which the rights of the defendant, were predicated. We see no serious objection which can legally be urged to that portion of the charge setting forth the circumstances under which the jury would be justifiable in rendering a verdict of not guilty and acquitting the defendant.
We are not so sure as to the concluding portion of the charge, which justified it in the contingency that “if the defendant provoked the difficulty in order to have a pretext of killing Cusenberry or doing him some serious bodily harm,” in which event the jury was instructed that the defendant under such circumstances would not have the right to act upon the appearance of danger. It seems to us that this portion of the charge did not present all the law of that aspect of the case. While it might be true that under such circumstances defendant would not have the right to act upon the appearance of danger, yet if he provoked the difficulty with Cusenberry in order to have a pretext, not for killing Cusenberry, but for the purposé of “doing him serious bodily harm” only, then, and in that event, he would not be guilty of an assault with intent to murder, because in the crime of assault with intent to murder the specific intent to kill is an essential element; and with any other intent short of that, or if the intent be simply to do him some serious bodily harm, and not kill him, the crime would not be assault with intent to murder, but would only amount to aggravated assault.
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WHITE, Presiding Judge.
This is an appeal from a judgment of conviction for an assault with intent to murder.
We do not propose to discuss all the many questions presented in the voluminous record before us, but will content ourselves with disposing of those only which in our opinion present error in themselves, or are liable to afford matter for discussion on another trial of this cause; and the questions which we do not discuss will be those which, in the view we take of them, do not present radical or material error.
With regard to questions as to evidence, it appears that the court, over objection of defendant, permitted the witnesses Joe Cusenberry and W. P. Cusenberry to testify that said W. P. Cusenberry was unarmed and had no gun in his hack at the time he was shot by defendant. One objection to the testimony of Joe Cusenberry was, that he was incompetent on account of his age and lack of intelligence, and consequently could not understand the nature of an oath. We are of opinion that the witness was not incompetent, as shown by the record, and the court did hot abuse its discretion in holding him competent after having fully inquired into the matter by proper examination.
As to the objection that both witnesses were allowed to testify that the defendant was unarmed and had no gun in his hack, in order to show the pertinency of the objection, or rather the pertinency of the evidence, we will state that it is abundantly established by other testimony that the parties had had a previous serious difficulty, and that the prosecutor, W. P. Cusenberry, had made violent threats against defendant, had borrowed or procured a gun some time previous to the shooting which is the subject matter of this prosecution, [445] which gun he had been in the habit of carrying about with him in his hack, and that this fact had been communicated to and was well known by defendant. Testifying to the facts immediately attending the shooting, defendant and Henderson, a witness for the defense, both stated that after the defendant hailed Cusenberry, who was in his hack at .the time, Cusenberry turned round and leaned over in his hack, as though about to get his gun; and the theory of the defense was that the defendant shot him at that time, and was justifiable in doing so upon the ground of reasonable appearances of danger to his life or serious bodily injury to his person. It is contended that to permit the two Cusenberry witnesses to testify that at that particular time Cusenberry did not in fact have a gun in his hack was inadmissible, because the fact that he did not have a gun was not known to the defendant, and such evidence deprived him necessarily, ill the minds of the jury, of his defense, so far as his actions were based upon reasonable appearances of danger. We think the evidence was admissible, because, while the defense was that Cusenberry was leaning over at the time he was shot,, as though he was about to grasp a gun in the hack, the theory of the prosecution, on the other hand, was that he was not leaning over at that time, and could not have been leaning over, as stated by the defendant, for the purpose of grasping his gun, because he had no gun in the hack at the time. We think the evidence was admissible in support of the theory of the prosecution that he was not leaning over at the time for the purpose of grasping a gun.
One of the grounds most earnestly and strenuously insisted upon as error is supposed defects in the charge of the court relative to communicated threats, and self-defense as growing out of such threats. The specific charge objected to is as follows: “You are further instructed, that if you find from the evidence that prior to the time of the alleged assault the said W P. Cusenberry had threatened the life of the defendant, or had threatened to do him some serious bodily harm, and these threats had been communicated to the defendant, such threats of themselves would afford no justification of the offense, unless it be shown that at the time of the alleged assault the said W. P. Cusenberry had done or was in the act of doing some act, or was making some demonstration manifesting an intention then and there to execute or carry out such threats, or which was reasonably calculated, in view of all the evidence and circumstances of the case, viewed and considered from defendant’s standpoint, to produce, and did produce, in the mind of defendant the belief that the said W. P. Cusenberry was about to execute such threats, in which event the defendant would have the right to act upon such reasonable appearance of danger as it appeared to him at the time of the shooting, and viewed in the light of all the facts known to him at the time of the shooting, notwithstanding such danger might not in fact have been real, and the shooting, under such cir[446] cumstances would be justifiable; and if you find the facts so to be you will render a verdict of not guilty, and acquit the defendant, unless you should further believe from the evidence beyond a reasonable doubt that the defendant provoked the difficulty with said W. P. Cusenberry, at the time of said assault, in order to have a pretext for killing said Ousenberry or doing him some serious bodily harm, and that the defendant did in fact provoke said difficulty with said Ousenberry with such intent, in which event, if you so believe from the evidence beyond a reasonable doubt, the defendant under such circumstances would not have the right to act upon the appearance of danger.”
Appellant excepted to this charge for seven different reasons stated in his bill of exceptions. We are of opinion that the charge is objectionable more as to matter of form than substance. It is all contained in a single sentence or paragraph, and is objectionable in that the unlearned mind of the juror might be unable to grasp, retain, and properly apply the different circumstances, conditions, and contingencies upon which the rights of the defendant, were predicated. We see no serious objection which can legally be urged to that portion of the charge setting forth the circumstances under which the jury would be justifiable in rendering a verdict of not guilty and acquitting the defendant.
We are not so sure as to the concluding portion of the charge, which justified it in the contingency that “if the defendant provoked the difficulty in order to have a pretext of killing Cusenberry or doing him some serious bodily harm,” in which event the jury was instructed that the defendant under such circumstances would not have the right to act upon the appearance of danger. It seems to us that this portion of the charge did not present all the law of that aspect of the case. While it might be true that under such circumstances defendant would not have the right to act upon the appearance of danger, yet if he provoked the difficulty with Cusenberry in order to have a pretext, not for killing Cusenberry, but for the purposé of “doing him serious bodily harm” only, then, and in that event, he would not be guilty of an assault with intent to murder, because in the crime of assault with intent to murder the specific intent to kill is an essential element; and with any other intent short of that, or if the intent be simply to do him some serious bodily harm, and not kill him, the crime would not be assault with intent to murder, but would only amount to aggravated assault.
If the court deemed it necessary, under the circumstances of this case, to qualify the defendant’s right to act upon reasonable appearances of danger, and make his act depend, as seems to have been done, upon a pretext for doing some “serious bodily harm,” then he should, in addition to his charge as given, have submitted the issue of aggravated assault, which was not done. It is true, a previous paragraph of the charge instructed the jury that in order to find the defendant guilty of [447] an assault with intent to murder they must believe he had the specific intent to kill. This fact, however, could not cure the omission in the charge quoted which we have pointed out. On the other hand, it was directly in conflict with the charge in question, in which the court limits defendant’s right of self-defense from appearances of danger to an assault committed in a difficulty provoked by him in order that he might have a pretext for doing him “some serious bodily harm,” which could not constitute assault with intent to murder.
An error of omission is also clearly apparent in the charge of the court in reference to the law of self-defense. It nowhere instructs the jury that defendant was not bound to retreat. A special requested instruction embracing this phase of the law was asked by the defendant and refused by the court. The rule is well settled that “the defendant, if unlawfully attacked by the deceased, is not bound to retreat in order to avoid the necessity of killing his assailant. It is a part of the law of self-defense; and failure to so instruct the jury, when the facts in the evidence require the instruction, is material error, notwithstanding the failure of the defendant to except to the omission.” Arto v. The State, 19 Texas Ct. App., 126; Penal Code, art. 573; Pierce v. The State, 21 Texas Ct. App., 540; Parker v. The State, 22 Texas Ct. App., 105; May v. The State, 23 Texas Ct. App., 146.
We are further of opinion that the court should, under the circumstances developed by the evidence, have instructed the jury, as was requested by defendant’s counsel, upon the law of manslaughter as applicable to insulting conduct toward the wife of the defendant. It is made to appear that the parties had not met, or rather that this was the first meeting of the parties after the alleged insulting conduct of Cusenberry.
Defendant’s fifth bill of exceptions was reserved to certain testimony given by Dr. Alexander over defendant’s objection. It will be remembered that defendant’s theory of the case was, that at the time he shot Cusenberry the latter had leaned over, or was leaning over, in his hack, apparently with the intention of getting his gun. The witness Alexander testified, that he was called professionally to see the injured party, Cusenberry, the night he was shot, and that he made an examination of his wounds. He was permitted to state, that “from the appearance of the wounds I should judge that at the time Cusenberry was shot he was in somewhat of an upright position. * * * From an examination of the wounds I am of opinion that he must have been in an upright position at the time the bullets entered the body.” The opinion of this witness went to show that the theory of the defendant was not true. It “touched the most sensitive nerve of the defense. It was equivalent to an opinion on the question of his guilt or innocence.” “Where the jurors are as competent as any other persons to deduce the proper conclusions from a given state of facts, the opinions even of [448] scientific witnesses are not admissible in evidence as to conclusions of inference to be drawn from them.” Cooper v. The State, 23 Texas, 331. Expert opinion evidence of medical witnesses is not admissible to prove the relative positions and situations of parties involved in a homicide or an assault with intent to murder. See a full discussion of this subject, with authorities cited, in Thompson v. The State, ante, 325.
For the errors pointed out and discussed, the judgment is reversed and the cause remanded.
Reversed and remanded,
Judges all present and concurring.