The appellant was a youth about nineteen years of age, not fully grown. Deceased was a man about fifty-four years of age, weighing about 125 ponuds. On the morning of the day of the homicide appellant talked over the telephone to the wife of deceased. *Page 568 Inquiring if deceased was at home and learning that he was, asked whether he was coming to town, and on being informed that he would that afternoon, said, "I will see him when he comes." This occurred about 9 o'clock in the morning. On the day prior to this conversation the father of appellant had been to the deceased's home and had a conversation with him. During the afternoon, while the deceased and a witness were in conversation on the street, appellant approached, and after saying "Howdy do" to the deceased said, "I want to see you, Mr. Jones," to which deceased replied, "I will see you a little bit later." Appellant said, "I want to see you right now." Deceased replied, "You go on now, I don't want to fool with you." Appellant walked away and the witness and the deceased walked upstairs to the office of Mr. Peters, assistant county attorney. The three, the witness, Jones, the deceased, and Peters, shortly afterward walked down the stairway together, Peters and deceased starting to walk across the street. The appellant, who, in the meantime, had borrowed an ax handle, approached them and called to the deceased, and when called, the deceased, who had his back to appellant, turned around and spoke to appellant and after doing so walked on, appellant following him, striking him one blow with the ax handle, holding it in both hands when he struck. The deceased fell, was taken to a sanitarium, and shortly thereafter died.
A witness testified that shortly before the homicide, during the afternoon, he had met the appellant and had a conversation with him in which nothing was said about the deceased; that afterward the witness saw him talking with deceased and thereafter he met appellant again and he cried and said he had trouble with Mr. Jones, the deceased. At that time he did not have an ax handle, but the witness later saw him with an ax handle, crying, and said to him, "John, you had better let that trouble alone and go on." Appellant would not talk, pushed him away and said, "Let me alone." There was evidence by the attending physician that the blow crushed the skull of deceased; that the bones were driven into the brain tissues on an area about as large as an egg; that two pieces of bone about the size of a half dollar which were broken into fragments were removed from the head and as a result of the blow a part of the brain exuded or poured out of the wound.
This is a substantial statement of the facts. I do not find in it any evidence of express malice. The cause of the difficulty or trouble between the appellant and Jones is not disclosed. The facts, I think, are sufficient on the question of manslaughter to raise an issue as to whether his mind was in a condition for cool reflection, but there is an absence of testimony of the other essential element to reduce the homicide to manslaughter, namely, evidence of adequate cause. The appellant's theory in the trial of the case was to the effect that the issue of manslaughter would exist without proof of adequate cause. This idea was founded upon decisions of this court in the Johnson case,42 Tex. Crim. 377; Betts v. State, 60 Tex.Crim. Rep.; Lee v. State, *Page 569 44 Tex.Crim. Rep.; Taylor v. State, 41 Tex. Crim. 151. These cases construe articles of the Code relating to a homicide taking place by the use of a weapon other than deadly weapon. Article 1147 is as follows: "The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appeared." Article 1148 is as follows: "If any injury be inflicted in a cruel manner, though with an instrument not likely under ordinary circumstances to produce death, the killing will be manslaughter or murder, according to the facts of the case." Article 1149 is as follows: "Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery."
The ax handle was not per se a deadly weapon. Branch's Ann. P.C., sec. 2002, and cases cited. It, therefore, became a question of fact for the jury as to whether from the manner in which the ax handle was used, the intention to kill evidently appeared. Branch's Ann. P.C., p. 1180. The court gave the substance of this statute, article 1147, in charge to the jury. He submitted no issue except that of murder. Under the facts of the case the instrument not being per se a deadly weapon and the question of the evident intent to kill, in the manner of its use, being one of fact, the charge to have been complete in submitting the law should have charged on aggravated assault. See Hill v. State, 11 Texas Crim. App., 470, and numerous cases following it listed in Branch's Ann. P.C., p. 1182. In other words, the jury should have been informed of what offense appellant would have been guilty in the absence of an intent to kill. Beaupre v. State, 70 Tex.Crim. Rep., 156 S.W. Rep., 625.
This being an omission in the charge, however, is not subject to review in the absence of an exception or proffered special charge at the time of the trial, and the special charge on aggravated assault which was requested by appellant not having been requested until argument was practically completed its refusal is not available for review.
In Johnson's case, 42 Tex.Crim. Rep., Judge Henderson, delivering the opinion of this court, used the following language: "We believe, under our statutes, in every case where it becomes a question whether or not there was an intention to kill on the part of the slayer suggested by the character of weapon used not being deadly, that it is the duty of the court to submit the issue of manslaughter; and, furthermore, if there was no intention to kill, he should submit the issue of aggravated assault. See Fitch v. State, 37 Tex.Crim. Rep.; Taylor v. State (Texas Crim. App.), 51 S.W. Rep., 1106; Dones v. *Page 570 State, 8 Texas Crim. App., 112; Whitaker v. State, 12 Texas Crim. App., 436." This not seem to have been necessary in deciding the case.
A similar construction of the statute is given in Taylor v. State, 41 Tex.Crim. Rep.; Lee v. State, 44 Tex. Crim. 460; Betts v. State, 60 Texas Chim. Rep., 635.
We believe that in so far as these decisions that lay down the proposition that the statutes quoted above require the submission of manslaughter without proof of adequate cause where the instrument used is not per se a deadly weapon, that they misconceive the purpose and effect of the statute. This is the view of Mr. Branch as stated in his Annotated Penal Code, page 1183. This is in accord with the opinion of this court written by Judge Hurt in the Hill case, 11 Texas Crim. App., 470.
Relying upon this interpretation in the published opinions of this court in Johnson v. State, supra, and the other cases mentioned in that connection, appellant's counsel regarded the evidence such as to require the trial court to submit the charge of manslaughter and excepted to its failure to do so. The exception was general, however, its terms being, in substance, such as were held insufficient in the cases cited in Branch's Ann. P.C., p. 1131, sec. 2004. The trial court guided by the opinion of this court in Hill v. State, supra, and its own interpretation of the statute held, we think, correctly, that the issue of manslaughter was not raised.
The manner in which the blow was struck with the ax handle, in connection with the circumstances, and the effect of the blow in crushing the bones of the skull of deceased was such that we would not be justified in holding the evidence insufficient to sustain the finding of intent to kill.
I therefore believe that the motion for rehearing should be overruled.
Overruled.