The state has filed an exhaustive motion, and supplemental motion for rehearing, reviewing the authorities referred to in our opinion, and citing others believed to hold contrary views to those announced by us. We have gone as carefully as we could over the arguments and citations, regarding the precedent of this decision as important, and further that a correct decision in this particular case is also of importance.
It must be plain that there was no sort of controversy upon this trial *Page 383 over the proposition that the weapon used by appellant and the manner of its use, was deadly. Nor was there issue made in testimony as to the intent of appellant to kill; the state's contention, supported by its evidence, being that appellant with a pistol at close range, with malice, shot and killed deceased. Appellant contended that he, with a pistol, at close range, shot and killed deceased in self-defense.
The offense charged, the conviction sought and had, was murder with malice. No theory of accidental killing, or of a murder without malice, or of lack of intent to kill, or of the use of a weapon not per se deadly, was advanced by appellant. These statements if true, — and they are, — differentiate this case and eliminate from consideration most of the authorities cited in the state's supplemental motion, beginning with Murray v. State, 1 Texas App., 417, and ending with Collins v. State, 108 Tex.Crim. Rep., 299 S.W. 403. Analysis and review of the cases would be interesting, but it must be at once apparent that cases like those of Murray v. State, supra; Gatlin v. State, 5 Texas App., 531; Bell v. State, 17 Texas App., 538, and others cited, in which were issues of manslaughter vs. murder with express malice, — a homicide on the one hand, where the mind of the slayer was so inflamed as to render it incapable of cool reflection, — and, on the other hand, the theory of murder for hate, revenge, or pay. These all were cases involving necessarily the intent of the accused in such way as to make justifiable a charge that the character of the weapon used by the accused might shed light upon and raise a presumption of intent to commit the offense. Likewise in cases such as Hatton v. State,31 Tex. Crim. 586, 31 S.W. 679; Campos v. State, 50 Tex. Crim. 102,95 S.W. 1042; Cade v. State, 96 Tex. Crim. 523,258 S.W. 484; Collins v. State, 108 Tex.Crim. Rep.,299 S.W. 403; in all of which the weapon used appeared not deadly per se, or if deadly same was not used in a manner calculated to kill, or some similar principle was involved, — in which cases the propriety of giving in charge article 45, P. C., or its equivalent, would appear so sound as not to be worthy of dispute. But citation or analysis of such cases gets us nowhere in solving the question of the possible harm to the accused of giving in charge said article 45, P. C., in a case upon facts such as those set out in our original opinion and which confront us here.
The intent to kill was established by the testimony both of the state and the defense, but this by no means carried with it, or conceded the establishment of that which was the only real issue arising under the facts in this case, that is, whether there was an intent to commit murder. What did the court tell the jury in said charge? We again quote: "The intent to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act." What "offense" was charged in this case? There is but one answer, murder. What was the "forbidden act" in this case? This question must receive *Page 384 the same answer. Would the shooting of one with a pistol in the temple ordinarily result in the commission of such "forbidden act?" Undoubtedly yes.
In one place in the charge his honor, the trial judge, said that in all criminal cases the defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt, but in that part of the charge under consideration he said to the jury, — in indisputable effect, — if this man used a pistol and intentionally shot the dead man with it, his intention to murder him would be presumed. Clearly this would be capable of great harm to the rights of the accused.
Precedents, if applicable, mark the path trodden by our predecessors, and ought, if correctly followed, to lead to uniform and right decision, but we must never lose sight of the rule always sound and to be kept in view, — that the facts of each case determine the law applicable. If it had never been said before, it ought to be said here, on the sharp and decisive issue in this case upon which and only which could this appellant hand a thread of hope of acquittal, that is, that while he did intend to kill, he only intended to kill in self-defense, and did not intend to murder, — that on such facts the giving in charge of article 45, P. C., was a transgression of the rights of the accused, whether he be guilty as Hades or innocent as an angel of light, for which this case should be reversed.
The state's motion for rehearing will be overruled.
Overruled.