1. Charge of Court — Practice on Appeal. — In the absence of exceptions to the court's charge, and failure to request instructions, the appellate court will not reverse for error or omission in the charge, unless upon the whole record the error was calculated to injure the rights of defendant.
2. Same — Test as to Sufficiency with Regard to Lesser Degrees. — On a trial for assault with intent to murder, the test as to whether the evidence requires a charge upon a lesser degree of crime is, was it of such cogency as that had the charge been given it would probably have influenced the finding of the jury.
3. Same — Manslaughter — Practice. — On a trial for assault with intent to murder, where there is sufficient evidence requiring a charge on aggravated assault, arising out of the law of manslaughter, a failure to so charge, when excepted to, will constitute reversible error, and especially so if in addition to the exception a special requested instruction for the defendant submitting the law of manslaughter was refused by the court.
4. Charge of the Court not Limited or Restricted by Defendant's Testimony or Theory of the Case. — On it trial for assault with intent to murder, where defendant's testimony, as well as theory, tended to establish a case of self-defense, but there was other testimony presenting other issues than self-defense: Held, that the court was not limited and restricted by the testimony of defendant as to the issues to be submitted, but should have submitted to the jury each and every phase of the case suggested by the evidence, whether the theory be presented by the evidence of the State, or defense, or both.
SIMKINS, JUDGE.
The theory upon which the court declined to charge on manslaughter was, that appellant provoked the contest with Erwin in the saloon, with the apparent purpose of killing, or inflicting great or serious bodily injury upon him. If this were true, the fact that appellant got injured, and subsequently returned with his gun and shot Erwin, would not reduce his offense to manslaughter; but if such was not his purpose, and appellant formed the design to kill Erwin after he was struck down by him, then a different question is presented. Cunningham's case, 17 Texas Cr. App., 98.
It has been repeatedly held, that in the absence of exception to the charge, and on failure to request instructions, this court would not reverse, unless upon the whole record the error was calculated to injure the rights of the defendant. Cunningham's case, 17 Texas Cr. App., 99, Davis' case, 28 Texas Cr. App., 560.
The test in such cases is, whether the evidence requiring a charge upon a less degree of homicide is of such cogency that had the charge been given it would probably have influenced the finding of the jury. Woodring's case, just decided; Davis' case, supra; Maxwell's case, 31 Tex.Crim. Rep.[ 31 Tex. Crim. 142].
We think that the charge on manslaughter should have been given, not only because there was sufficient evidence requiring such a charge, but because the charge was specially requested and an exception taken to the refusal of the court to give the same.
The evidence shows, that the parties were related, and up to the difficulty were on the friendliest terms. Erwin had given no cause of complaint to appellant. It was his son that had turned appellant's horse loose, which was the origin of the trouble. He demanded that Erwin should whip his son, and Erwin says that he agreed to do so. The boy beginning to cry, appellant stated to him that he need not cry, that he would do him and his daddy. At this time appellant stood with a drawn knife in his hand, but made no effort to use it, and left on being ordered out, and was struck down with a chair by Erwin. This is the testimony of Erwin, the injured party. On cross-examination he said: "When defendant first came up to me he commenced to talk in a friendly and quiet manner, and I said, 'Dick, you are always a fool when you are drunk; you had better leave here.' * * * I do not know how bad I hurt defendant, but I hit him as hard as I could, and gave him pretty hard licks [with the chair]. I did not knock him down the first blow with the chair. The second blow knocked him off the gallery."
Although there were four or five men in the saloon, no one heard any cursing but the bartender, and heard no quarrelling, and saw no knife, but heard the noise on the gallery. Appellant says that he told Erwin about the matter in a quiet and friendly manner, and Erwin got mad and excited, and cursing appellant, ordered him out of the store, and picking up a chair he struck appellant a powerful blow, as hard as he could, on the head, and ordered witness to leave there, and knocked witness down with it, greatly injuring his head and shoulders.
There seems to be but little contradiction as to the first difficulty. Both agree that appellant's complaint was made in a quiet and friendly manner, and while appellant had a knife in his hand, he neither threatened Erwin with it nor attempted to use it in any way, even when being struck by the chair. There is one witness, Otto Ebner, who did testify to threats made by appellant, the evening of the difficulty, against Erwin, but his testimony was impeached by even the State's witnesses. Under the above facts, it certainly became material for the jury to say when was the design to kill Erwin formed in appellant's mind. Was it before and at the time when he went into the saloon with his drawn knife? Or was it after and in consequence of the blows received by him? If so, had there been cooling time before he shot Erwin? That is to say, if after being beaten by Erwin, the design to kill was first formed in a mind incapable of cool reflection, and while under the immediate influence of such passion, appellant armed himself and attempted to kill Erwin, the homicide, if occurring, would not be greater than manslaughter, and a charge to that effect should have been given.
The judgment is reversed and cause remanded.
Reversed and remanded.
HURT, PRESIDING JUDGE, and DAVIDSON, JUDGE.
We concur in the conclusion reached by Judge SIMKINS, that the law of aggravated assault and battery was an issue in the case, and should have been submitted to the jury. But we can not agree to all the reasons and statements contained in the opinion. The opinion states, that "the only theory upon which the court below declined to submit manslaughter, and consequently aggravated assault and battery, was, that appellant provoked the conflict with Erwin in the saloon, with the intention and purpose of killing, or inflicting great bodily injury upon him which might reasonably result in his death."
While there is some evidence tending to present this theory, yet the court might have believed that appellant did not provoke the difficulty in the saloon with intent to kill, and still believe that manslaughter, and therefore aggravated assault and battery, was not in the case. Because, conceding that appellant did not provoke the difficulty in the saloon with intent to kill Erwin, and conceding to the fullest extent that the blows with the chair were of such a character as not only to be a provocation, but that they may have produced such a passion as rendered the mind incapable of cool reflection, yet if when appellant shot Erwin he was not prompted by the passion, aggravated assault and battery would not be in the case, notwithstanding the great provocation. This view of the case is strongly supported by the testimony of the defendant, he being a witness. He testified, that he did not return to Erwin's for the purpose of shooting him or having a difficulty, but only to get his horse left there by him, and shot because he thought his life to be in danger from Erwin and friends. The court submitted self-defense on this testimony.
If what he states must control, though aggravated assault may be suggested by other evidence, the court was correct in not submitting aggravated assault and battery to the jury. We, however, believe it to be the duty of the court to submit to the jury each and every phase of the case suggested by the evidence, whether the theory be presented by the evidence of the State or defense, or by both.
The Reporter will give the facts.
Reversed and remanded.