Appellant insists that he was entitled to have the issue of aggravated assault submitted to the jury. A proper and timely exception was reserved to the court's charge upon the subject.
Under a charge of murder, the issue of aggravated assault is raised when the instrument with which the murder is inflicted is not a deadly weapon per se or one which, in the manner of its use, is not ordinarily calculated to produce death, and when, in addition thereto, the evidence raises the issue of a lack of intent on the part of the accused to kill. Miller v. State, 13 S.W.2d 865, 112 Tex.Crim. R.; Bookman v. State,16 S.W.2d 123, 112 Tex.Crim. R.; Johnson v. State,68 S.W.2d 202, 125 Tex.Crim. R..
Appellant insists that the evidence shows that the injury causing the death was not inflicted with a deadly weapon per se; that there was a lack of intent on his part to kill; and that, therefore, this case comes within the rule stated and a charge on aggravated assault was called for. A determination of this contention is deemed neither necessary nor called for, because we have reached the conclusion that the charge as given was more favorable to appellant than that which he requested. As sustaining this conclusion, we note that the jury was instructed as follows:
"Unless you find from the evidence beyond a reasonable doubt that the defendant, Pete Barnett, did so voluntarily, and with intent so to do, kill the deceased, Charlie Watson, you will find the defendant not guilty."
The term "voluntarily" was defined as follows: *Page 256
"By the term 'voluntarily,' as used in the definition of 'murder,' and in these instructions, is meant that the act must be done by the exercise of one's own free will. A voluntary act, therefore, is one that proceeds from one's own free will and is done by choice and upon one's own initiative."
When these charges are considered together, it appears that the jury was instructed to acquit appellant unless it believed that he intended, by exercising his own free will, to kill the deceased; and this without reference to malice or to the character of the instrument used in effecting the killing.
A charge on aggravated assault would have embraced the same facts and would have authorized appellant's conviction of that offense. Hence the charge as given was more favorable to the appellant then that which he requested, because, under the charge as given, he was entitled to be acquitted, while under the law of aggravated assault, he would have been guilty of that offense.
After a re-examination of the record in this case, we remain unable to agree with appellant that the facts are sufficient to call for an application of the provisions of Art. 36, P. C., relative to temporary insanity produced by the voluntary use of intoxicants, in mitigation of punishment for an offense.
It must be remembered that, under the above statute as amended in 1939, mere intoxication from the recent use of ardent spirits will not mitigate the penalty, and that the mitigation of penalty arises only when temporary insanity is produced by the use of such spirits. Adams v. State, 144 S.W.2d 889, 140 Tex.Crim. R..
The most favorable interpretation of the facts, from appellant's viewpoint, shows only that he was drinking intoxicants some hours prior to the homicide. There is an absence of any proof as to his condition at the time of the homicide or that it was at any time such as to show that he was in a state of temporary insanity produced by the use of intoxicants.
We remain convinced of the correctness of our conclusion that reversible error is not reflected by the cross-examination of appellant's wife, touching a matter not inquired about upon her examination in chief, notwithstanding the prompt withdrawal *Page 257 of the matter from the jury's consideration by the trial court. In addition to what we originally said touching this matter, attention is called to the fact that the undisputed evidence shows that the deceased came to his death as the result of an injury inflicted upon his head with a blunt instrument of some character. The only injuries to deceased which might have been inflicted by a boot or boot heels were upon the body. The doctor who made the examination of deceased, and who performed an autopsy, testified that the body injuries so found did not cause, and were not sufficient to cause, deceased's death.
Believing the case was correctly disposed of originally, appellant's motion for rehearing is overruled.
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.