The offense is assault with intent to murder; the punishment, confinement in the penitentiary for seven years.
W. B. Arthur, sheriff of Dickens County, testified, in substance, as follows: Having been advised that appellant was carrying a pistol, he went to a filling station for the purpose of arresting him. He told appellant he wanted to search him for a pistol. Appellant immediately drew his pistol and shot him in the side. Running around the corner of the building, appellant fired another shot which struck him in the hip. At this juncture, witness pulled his pistol and shot at appellant. Appellant stumbled and fell. Witness shot to cripple appellant. *Page 178
Appellant testified that when he and the sheriff got behind the corner of the filling station the sheriff said: "What's all this hell that's been going on around here;" that he replied that he did not know anything about it; that the sheriff said: "By God, I want it stopped;" that he asked the sheriff what he was going to do about it; that the sheriff grabbed him by the arm with his left hand, saying, "By God, I will show you what I am going to do;" that nothing was said about arresting him; that he whirled and tried to get away; that as he was leaving the sheriff shot at him, and pursued him; that he stumbled and fell; that he was trying to get away; that when he saw that he could not get away and that the sheriff was going to kill him, he pulled his pistol and started shooting, firing six shots; that he did not intend to kill the sheriff; that he was shooting at him to keep him from killing him; that he did not have any intention of resisting arrest.
The court charged on self-defense, but overruled appellant's objection to the charge for its failure to embrace an instruction covering provisions of Art. 1223, P. C. We quote the provisions of said article as follows: "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 clearly showed an attack with a weapon of the nature described in the statute. It has been held by this court that where the evidence raises the issue of the use of a deadly weapon by the deceased, it is an absolute presumption imperative to juries, as well as courts, that the deceased intended to inflict the injury mentioned in Art. 1223, P. C., and further, that the provisions of the article must be given in charge to the jury. Gaither v. State,3 S.W.2d 814; Strickel v. State, 33 S.W.2d 451, and authorities cited. The law of self-defense in cases of homicide applies also to cases of assault with intent to murder. Branch's Annotated Penal Code, Sec. 1654; Edwards v. State, 5 Texas App., 593. It has been held necessary to give the charge in prosecutions for assault with intent to murder. See Cooper v. State, 85 S.W. 1059, and Castle v. State, 209 S.W. 416.
The judgment is reversed and the cause remanded.
LATTIMORE, JUDGE, dissents.
Reversed and remanded. *Page 179