1. — Assault to Murder — Charge of Court — Cooling Time.
See opinion for facts which might require the court to charge on the question of cooling time.
2. — Same — Antecedent Facts — Provocation — Charge of Court.
In charging on provocation by a blow on defendant causing pain or bloodshed, the jury should be instructed that they were authorized to look to all antecedent facts and circumstances between the parties tending to illustrate or intensify the provocation.
3. — Same — Lower Grades of Assault — Charge of Court.
Where in a prosecution for assault to murder, there was evidence, although weak it may have appeared to the court, that the defendant shot to scare prosecutor, the court should have charged on the lower grades of assault.
4. — Same — Deadly Weapon — Presumption of Law — Charge of Court.
Where the evidence showed, in a case of assault to murder, that the prosecutor was coming at defendant with a butcher knife, the court should have charged that if the jury believed that the same was a deadly weapon, the law presumed that the prosecutor intended to take defendant's life or inflict some serious bodily injury upon him, and under such circumstances he would be justified in shooting prosecutor.
5. — Same — Reasonable Fear of Death — Charge of Court.
See opinion for facts which did not require a charge on danger to appellant of a less degree than an attack causing him to have reasonable apprehension of death or serious bodily injury.
HENDERSON, JUDGE.
Appellant was convicted of assault with intent to commit murder, and his punishment fixed at confinement in the penitentiary for a term of two years; hence this appeal.
In the motion for new trial, a number of exceptions were taken to the charge of the court, and the failure of the court to give instructions upon certain phases of the case. Appellant insists that the court should have charged on cooling time, but it occurs to us from the evidence that this was a continuous transaction, and there was no occasion for the court to give an instruction as suggested. If on another trial it should appear there was an interregnum in the difficulty between the alleged blow with the glass tumbler by prosecutor, inflicting pain or bloodshed on appellant and the final act of shooting, the court might be required to give the charge on cooling time.
In charging on provocation to wit: a blow causing pain or bloodshed, the court should also on another trial instruct the jury that they were authorized to look to all the antecedent facts and circumstances, if any, between the parties, tending to illustrate or intensify the provocation.
Appellant complains that the court failed to instruct the jury on that phase of the case arising from a portion of appellant's testimony, to the effect that he shot to scare the prosecutor. The language of appellant in his original examination was that "he shot at prosecutor," but on cross-examination he stated, "I did not shoot any time at Thompson. I shot to scare him." Appellant contends that the court should have charged on aggravated asasult on this phase of the case, and cites Gatling v. State, 7 Texas Ct. Rep., 16, and Pastrana v. State, decided May 10, 1905. Both of these authorities support appellant's contention; that is, that the court should have charged simple assault on this phase of the case. It may be that the trial judge considered the testimony on this point weak, but in our opinion it was sufficient to have required the charge.
Appellant also insists that the case should be reversed on account of the failure of the court to instruct the jury, if at the time appellant fired at prosecutor, prosecutor was coming at him with a butcher knife, and they believed that the same was a deadly weapon, the law presumed that he intended to take his life, and under such circumstances he would be justified in shooting prosecutor. This contention appears to be in accord with the authorities. Cooper v. State, 12 Texas Ct. Rep., 620; Hall v. State, 66 S.W. Rep., 785; Ward v. State, 30 Texas Crim. App., 687; Kendall v. State, 8 Texas Crim. App., 569.
We do not believe it was necessary for the court to instruct the jury on danger to appellant of a less degree than an attack causing him to have reasonable fear of death or serious bodily injury. Of course, under given circumstances, the right of self-defense exists against any character of attack; but the evidence indicates, so far as self-defense is concerned that if prosecutor was attacking appellant at the time he fired the shot, with a large butcher knife, it was evidently with the intent to take his life or inflict upon him serious bodily injury, and against this he had a perfect right of self-defense. Of course, against a lesser danger, if the facts had warranted a charge on this subject, he might not have had a perfect right of self-defense, but would be guilty of some character of assault for using excessive force. We do not understand the facts to be such in this case.
For the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.