Murder — Charge — Deadly Weapon — Presumption.
The evidence made it necessary for the court to charge the law as to the presumption from the use of a deadly weapon as contained in Art. 1223, P. C., and a failure to so charge was error.
CHRISTIAN, JUDGE. —
The offense is murder; the punishment, confinement in the penitentiary for four years.
Appellant shot and killed Francisco Carasco. Testifying in his own behalf, appellant declared that deceased attacked him with an open knife, the blade of which was about three and one-half inches long. State's testimony showed that deceased had a knife in his hand of the description mentioned when his body was discovered. There was testimony to the effect that the knife was a deadly weapon. Appellant testified that he believed deceased was preparing to kill him, and that he fired the fatal shot to save his own life.
Appellant timely and properly excepted to the failure of the court to give in charge Article 1223 of the Penal Code, which provides: "When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." Appellant's testimony raised the issue of an attack with a weapon of the nature described in this statute. Hence it was incumbent upon the trial court to respond to the exception. Gaither v. State, 109 Tex.Crim. Rep., 3 S.W.2d 814; Lowe v. State, 111 Tex.Crim. Rep., 12 S.W.2d 221; Holland v. State, 112 Tex.Crim. Rep., 15 S.W.2d 626. The state's attorney confesses error.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.