This conviction is for murder in the second degree, the punishment is assessed at five years confinement in the penitentiary.
The evidence for the State in substance shows that deceased, Henry Falvey, in company with Tom Dubose and others, were standing on the gallery of deceased's father, who was running a store at the town of Burke, when defendant passed riding a horse; that Tom Dubose gave a derisive whistle, directed at defendant and his horse. This enraged defendant and he stopped, asked the parties on the gallery if they had anything against his horse or himself. Receiving no reply, defendant went a short distance, and after a little while turned and hitched his horse near the store of Meeks; went into the store, and was looking at a drummer display his goods. Deceased and several of his companions who were on the gallery of his father's store, came across to the store where defendant was. After remaining there a few moments, defendant called deceased out on the gallery, with the statement that he wanted to see deceased. When deceased reached the gallery, defendant asked deceased what he was whistling at his horse for. Deceased denied that he had done so, but stated that Tom Dubose (who was then in the Meeks' store) did the whistling. Thereupon Dubose ran behind the counter in the store. Defendant first asked where Dubose was, and when informed of the fact, turned upon deceased and applied various vile epithets, such as liar and son-of-a-bitch, stating deceased did the whistling at his horse. Deceased picked up a piece of white pine plank and proposed to resent these indignities, and at that juncture his brother, J.C. Falvey interfered and stopped the difficulty. A moment thereafter, deceased having secured another piece of plank, told defendant that he would not repeat the insults he had offered him, which being done, deceased struck defendant; defendant grabbed deceased by the arm and stabbed him with a pocket knife, which wound penetrated deceased's heart, and he died in a few moments. This is in substance the State's case. Defendant testified, in substance, to a complete case of self-defense, which is to some extent supported by his witnesses. Defendant further testified that the knife which inflicted the injury: "Was an old knife, with one handle nearly off, and you could just throw it open and shut. It would stand open if *Page 502 you would hold it straight, but if you held it the least bit slanting, it would fall shut. The back spring was broken." This is all the description we find in the record of the knife.
The charge of the court in the main is an admirable presentation of the law of murder in the first and second degrees, manslaughter and self-defense. The court also properly applied the law applicable to the imperfect right of self-defense, telling the jury in substance that if defendant provoked the difficulty with intent to kill, he would be guilty of murder; or if he provoked the difficulty without the intent to kill he would be guilty of no higher offense than manslaughter. The charge of the court, as suggested by the assistant attorney-general, seems to announce the law as laid down by this court in Franklin v. State, 30 Texas Crim. App., 628, and34 Tex. Crim. 286. There are various criticisms of the charge of the court, but a careful reading of the same demonstrates they are not well taken, and do not present reversible error. However, we deem it necessary to pass on one objection urged as an erroneous omission in the charge. Appellant insists that the court should have charged articles 717 and 719, Penal Code. Under article 51, Penal Code, the intent is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act. Under article 717, 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 appears. As stated in Shaw v. State,34 Tex. Crim. 435, we have the following principles announced under the provisions of this article: first, that the weapon or means used must possess the quality of a deadly weapon without regard to the manner in which it is used; second, though not deadly the manner of its use must show an evident intention to kill. In other words, the character of the weapon can not be fixed or determined by the manner of its use. It must ordinarily be a deadly weapon per se to warrant a presumption arising from its use; or if not such a weapon the intent to kill must evidently appear from the manner of its use. Now, applying the principles of this article to the facts of this case, we hold that the weapon may be conceded not to be per se a deadly weapon since the length and character of the same is not disclosed; but we hold that the intent to kill evidently appears from the manner of its use, and hence the provisions of article 717 are not required to be given in charge to the jury, as the issue thereby required to be charged is not raised by the evidence to wit: a lack of evident intent to kill. The facts, as collated above, show that appellant provoked the difficulty, for as he testifies he had had previous difficulties with deceased; that deceased had provoked him on many occasions; and here upon the scene of the killing he had a knife drawn and as soon as his outrages and indignities to deceased had provoked deceased to resent it, he grabbed deceased by the arm and plunged the knife into his heart, from which he died instantly. As laid down by this court in Shannon *Page 503 v. State, 35 Tex.Crim. Rep., defendant had a right to approach deceased and ask him why he offered him an indignity, but this was not evidently the intent and purpose of defendant in calling deceased out on the gallery, since the moment deceased denied offering appellant any indignity, he cursed and abused him and would take no character of explanation, although deceased stated that the party who did offer the indignity was then in the house. This being true, the intent to kill, the means and manner used to accomplish it, and the whole surroundings indicate clearly that appellant did have the evident intent to kill at the time he made the felonious assault upon deceased. Article 719, Penal Code, embodies the law of a case in which there was no intent to kill and when the homicidal act is divested of an evil or cruel disposition. The facts of this case do not present any phase of this statute, and hence the court did not err in not charging either article 717 or article 719, as insisted by appellant. For a discussion of this question see Honeywell v. State, 40 Tex.Crim. Rep.; Perrin v. State, 9 Texas Ct. Rep., 533; Baker v. State, 81 S.W. Rep., 1215. The latter case in most, if not all of its facts, is like the case at bar. The only difference we discover is that, in the Baker case the length of the knife blade is shown to have been two and five-eighths inches, while the length of the blade is not shown in this record. However, the whole tone and trend of the evidence shows that appellant used a deadly weapon and had the evident intention to kill at the time he inflicted the deadly blow.
The last insistence of appellant is that the court erred in not granting him a new trial on account of the misconduct of the juror George Manley. The misconduct consists, as appellant alleges, in the juror on his voir dire suppressing a preconceived ill will against appellant. To sustain this contention, appellant attaches the affidavit of several parties tending to sustain him. These affidavits were controverted by the State, and issue thereby joined, which issue the court decided against appellant. Under the authorities of this court we are not called upon to review the decision of the court below in the matter. Belcher v. State, 37 S.W. Rep., 428; Cockerell v. State, 32 Tex. Crim. 585.
No error appearing in the record, the judgment is affirmed.
Affirmed.
ON REHEARING. June 21, 1905.