The appellant was convicted in the District Court of Cherokee County for assault with intent to murder, and his punishment assessed at two years in the penitentiary.
The record discloses that the appellant owed George Williamson, a merchant, some money, and upon entering the latter's store to discuss the payment thereof, they became engaged in a fight which resulted in appellant shooting said Williamson with a pistol. It was the contention of the state that appellant armed himself and went to the store of the prosecuting witness with the intention of bringing on the difficulty and with the deliberate intention of taking the life of said Williamson. The appellant defended upon the ground that said Williamson had been phoning his wife relative to pay said debt and that he went to the store to see Williamson and explain to him that he, appellant, would pay the debt as soon as he closed a deal he had pending, and that he was then on his way to show some parties a tract of land; that his business as a real estate dealer required him to be away from home a good deal, and camp out, and it was his custom to carry a pistol on that account; that he had no intention whatever of having a difficulty with the prosecuting witness. Appellant further testified that while explaining his intention of paying said bill, the prosecuting witness demanded that something be done about it right away, raising his hand as if to strike, whereupon he, *Page 11 appellant, thinking that Williamson was striking at him, struck said witness; then said prosecuting witness knocked him down and beat him up with a stick. Appellant testified that when he arose, prosecuting witness was drawing the stick or mop handle to hit him again, and thinking that his life was in danger, he shot the prosecuting witness in his own self-defense. It was further contended by appellant, and evidence was introduced to that effect, that one of the employees of said prosecuting witness struck him over the head with a chair during the fight and that someone else in the house was shooting at him.
This is a very voluminous record, containing 37 bills of exception, and the appellant's brief contains 111 pages. For the sake of brevity, we will only discuss such matters as we deem necessary, although we have given the entire record careful attention.
Appellant contends that the evidence in this case fails to show any intent to murder and the court was in error in submitting that issue to the jury. We are of the opinion that the state's evidence raised this issue, and that this contention is not well founded.
Complaint is made to the action of the court in charging the jury on permanent insanity, upon the ground that there is no evidence authorizing such a charge, and to the failure of the court to charge on temporary insanity which was caused by the epileptic condition of the appellant. We think the record, as presented, fails to call for a charge on either permanent or temporary insanity, and if the facts are the same upon another trial the court should not submit same to the jury.
Bill of exceptions No. 5 complains of the court's refusal to charge on simple assault. We think this contention is untenable and that said issue was not raised by the testimony.
Complaint is made in bill No. 8 of the court's failure to define fully in his general charge the term malice aforethought. In view of another trial, we are of the opinion that the court should give a full charge thereon, amplifying the charge which was given on the instant trial.
By bill No. 14 complaint is made of the refusal of the court to instruct the jury that if they had a reasonable doubt as to whether the defendant was guilty of assault with intent to murder or aggravated assault, to give him the benefit of the doubt and convict him of the lesser offense. The court charged *Page 12 on assault with intent to murder and aggravated assault, but failed to charge the jury, in effect that if they believed from the evidence beyond a reasonable doubt that appellant was guilty of some offense, but had a reasonable doubt as to whether he was guilty of assault with intent to murder or aggravated, to resolve that doubt in his favor. We think this was error. This court, in the case of Richardson v. State,91 Tex. Crim. 318, 239 S.W. 218, on rehearing, specifically held that it was error for the court, in charging on murder and manslaughter, to fail to apply the doctrine of reasonable doubt as between the degrees presented, where counsel by exception pointed out such omission.
By bill of exceptions No. 27 complaint is made to the action of the court in permitting the state to show by the witness, Lawler, that the appellant had approached him in a violent, angry and threatening manner in regard to office rent that was due by appellant to him, it being contended by the appellant that said evidence was prejudicial and improper and threw no light on the issue in question. The court, in qualifying this bill, states that same was admitted in explanation of a transaction about which the defendant had testified. The record discloses that the appellant's witnesses introduced in behalf of his good reputation were asked on cross-examination by the state if they had heard of appellant approaching said Lawler, who appeared to be an aged man, in a threatening manner, and appellant in his own behalf testified, in effect, that he did not so approach the said witness. It appears from the qualification to the bill that the court was of the opinion that this testimony was admissible for impeachment purposes and on the issue of suspended sentence. We are of the opinion that testimony was inadmissible on either issue and was an attempt to impeach the appellant on an immaterial and collateral issue.
Bill No. 33 complains of the court's action in permitting the state to ask Dr. Newburn if he did not tell the prosecuting witness, Williamson, after the trouble with appellant, "You are a damned fool if you don't go armed," to which the witness answered that he didn't remember making the statement. In view of another trial, we are of the opinion that this testimony should not go before the jury, if objected to, because it appears from the bill that the appellant was not present and it was a purported conversation had after the alleged difficulty which *Page 13 could only tend to prejudice the rights of the appellant before the jury.
By bill of exceptions No. 24 complaint is made to the action of the court in permitting the state to introduce in evidence the bloody clothes worn by the prosecuting witness at the time of the difficulty. The court qualifies this bill by saying that they were not introduced in evidence, but that the state was permitted to exhibit the same to the jury to show that they were powder burned. We think this evidence should have been excluded, as there was no controversy as to where and how the prosecuting witness was shot, or as to who shot him, and said evidence could only serve the purpose of inflaming the minds of the jury and prejudicing the rights of the appellant.
There are several bills of exception complaining of the closing argument of the private prosecuting attorney, in which it is urged that he stated in his closing argument to the jury that if they didn't convict the appellant of assault with intent to murder, they might as well tear down the court house and have no more juries; and if they turned appellant loose and he killed the prosecuting witness, Williamson, the jury would be just as guilty of murder as the appellant; and if they turned appellant loose and Williamson killed the appellant, they would be as guilty of murder as Williamson would be; and if they turned the appellant loose and he killed anybody else, they would be as guilty of murder as the appellant would be. Complaint is made to other such argument, but in view of the disposition we have made of this case, we think it unnecessary to go into a detailed discussion of these bills, as they will probably not occur in the same form again. However, it might be well to state in passing that such argument should not be resorted to on another trial of this case.
Appellant complains of the action of the court in permitting the state to put the prosecuting witness, Williamson, back on the stand at the close of the testimony to explain his testimony, the appellant protesting because the witness had been excused from the rule after first testifying and had heard practically all of the other state's witnesses testify, the most important of whom were his employees. The objection also went to the fact that in getting around in the court house in the presence of the jury, the prosecuting witness showed the effects of being shot and was limping, all of which, it was contended, would inflame the minds of the jury and arouse sympathy in witness' behalf. The court, in qualifying this bill, states that he permitted the *Page 14 witness to stay in the room because he had employed private prosecution and the court felt that he was entitled to be in the room. We are of the opinion that under the peculiar facts of this case, as disclosed by said bills, that the court was in error in releasing said witness from the rule.
For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and the cause remanded, and it is accordingly so ordered.
Reversed and remanded.
The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.