Appellant was convicted in the District Court of Coryell County of murder, and his punishment fixed at twenty years in the penitentiary.
Appellant's first contention in his brief is of the court's charge on manslaughter wherein the jury were told: "It is not enough that the mind is merely agitated by passion arising from some other provocation, or a provocation given by some person other than deceased." This is part of the statutory definition of sudden passion as appears in Article 1129 of our Penal Code in connection with the law of manslaughter, and same was given in the instant charge as part of such definition. Appellant's objection is that this was a limitation upon his rights not suggested by any evidence in the case. The killing took place at a dance. Deceased went to this dance with Miss Bird. While at the dance and just prior to the killing appellant had a talk with Miss Bird. She testified that he tried to make a date with her and that she refused, and he said to her that some one had told her lies on him. This she denied to him. She also said that at the time of this conversation appellant seemed mad, — not at the start but later he seemed mad. There is also in testimony evidence reflecting prior ill-will on the part of the appellant toward deceased and threats to do the deceased harm. This much of the evidence is here stated because it makes plain that the law of this case differs from that of the cases cited by appellant in support of this proposition. In Harrison v. State, 83 S.W. Rep., 699 cited, there was no charge given on manslaughter, hence no applicability. In Fuller v. State, 54 Tex.Crim. Rep., 113 S.W. Rep., 541, there was no evidence suggesting that the anger or rage of the accused was caused by provocation brought about or arising from the conduct of another, or from something said or done by such other party. In Gallagher v. State, 55 Tex. Crim. 50, 115 S.W. Rep., 46, two strangers met in a road, quarreled over who had the right-of-way and one killed the other. It was held, even in such case, that a charge similar to the one under discussion would not be reversible error, but it was suggested that upon another trial it be omitted as not finding support in the testimony. In Craft v. State, 57 Tex. Crim. 257, 122 S.W. Rep. 547, it appeared that deceased caught the horse of appellant by the bridle and jerked it and caused it to rear, throwing appellant against the horn of the saddle and inflicting pain upon him. He asked a special charge applying the law of manslaughter which we held wrongfully refused. There was not a word of testimony supporting the proposition *Page 240 of provocation by another or anger caused by some one other than deceased. Announcing its conclusion that a reversal was necessary for other reasons, this court said that if the facts were the same on another trial, a charge similar to that here complained of should not be given. McDowell v. State, 68 Tex. Crim. 577, 151 S.W. Rep., 1049, was reversed for other errors, this court stating in its opinion that it was a fact undisputed in the testimony that the difficulty came up all in a moment and that there was no ill-will or grudge between the parties prior to the incidents of the fatal difficulty itself. We are unable to apply anything found in any of said authorities as supporting the contention made in the instant case under the facts stated by us above. It appears clear, from the State's testimony, that appellant was angered by the refusal of Miss Bird to make a date with him and by her denial of the fact that deceased had told her things on him. We find no error in the charge complained of under the facts.
In paragraph thirteen of the charge in connection with the law of self-defense, the court gave to the jury the language of Article 1106 of our Penal Code. No exception was taken to said paragraph, but in the tenth exception to the court's charge we find the following:
"Defendant further objects to said paragraph 14 and to the whole charge because it omits to apply the law concerning the use of a deadly weapon by deceased to the facts of the case."
Paragraph fourteen of the court's charge gave the jury an application of the law to the facts both as to real and apparent danger, and was as follows:
"If, therefore, the defendant killed the deceased, he was justified in doing so, if he did do so, to prevent the deceased from murdering him, or from inflicting serious bodily injury upon him, the defendant, provided it reasonably appeared to the defendant, by the acts, or by the words coupled with the acts of the deceased that it was the purpose and intention of the deceased to murder the defendant, or to inflict serious bodily injury upon him, the defendant viewed from the defendant's standpoint. And provided the killing took place while the deceased was in the act of committing such murder, or of inflicting such injury, on the defendant, or after some act done by the deceased showing evidently an intent to murdur the defendant, or to inflict serious bodily injury to him, the defendant, viewed from the standpoint of the defendant. And if it reasonably appeared to the defendant from the circumstances of the case that danger existed, he had the same right to defend himself against such apparent danger and to the same extent that he would have were the danger real. And this, even though there was no real danger. And if you have a reasonable doubt as to whether or not the killing took place under such circumstances it will be *Page 241 your duty to give the defendant the benefit of such doubt and acquit him."
This we deem a sufficient application of the law to the defensive theories finding support in the testimony in this case. Appellant did not claim that deceased tried to take his life, or to maim him, or inflict serious bodily injury upon him, nor did he try to describe any weapon with which he claimed deceased had struck him prior to the fatal cutting. On direct examination appellant testified that immediately before he cut deceased the latter went into his pocket and got out something and hit him; that he thought it was brass knucks or a knife. On cross-examination be admitted that he did not know what it was that deceased hit him with; that he could not see what it was; that he could not see any part of it and did not in fact see any part of it; that he only knew that deceased hit him with something that raised a bump on his hand; that deceased only struck one lick, and that he, appellant, got out his knife and as deceased advanced again appellant cut him with said knife. The carotid artery of deceased was severed by the blow and he died almost at once. No weapon of any kind was found on or around his person, his pocket knife being closed and in his pocket when his body was searched after death. Appellant's description of the result of the lick made at him by deceased is as follows:
"At the time of the trouble I received a lick on the head given by Willis Hopson. The lick was on top of my head along up there in the hair. It was a gash and made a bump on my head. The bump was a little bit bigger than your thumb, I guess. . . . I showed the bump to Tuck (Wolf) and to you (Mr. Bell). The wound bled. I couldn't see how big a place it was."
Appellant's father was not at the dance but testified that when appellant got home that night he showed him the place on his head and it had blood on it. He said of the injury: "The broken place on the skin of Jack's head was a jagged place, just one dent, a rough dent in the skin." He also said: "I found a small place on Jack's head, something like the big end of your thumb, looked like he was hit with a knife; I just found a knot there. The skin was broken where he was hit." This witness said that he had a doctor to examine appellant's head but the record does no contain the testimony of such doctor. No other witness testifies that deceased had any weapon or assaulted appellant with one on said occasion. Nothing in the authorities cited by appellant or in any known to us would seem to require a charge applying an application of the legal presumption contained in Article 1106, supra, in a case where there was no more testimony of an attempt on the part of deceased to inflict murder, maiming or serious bodily injury, then appears in the instant record. We do not deem it necessary to discuss or *Page 242 analyze the authorities cited, believing a statement of the facts in this case enough to show the soundness of our conclusion.
It is also urged that the court's definition of a deadly weapon was erroneous as applicable to the instruction presenting Articles 1147 and 1149 of our Penal Code. The learned trial judge herein gave to the jury in his charge the provisions of Articles 1147 and 1149, supra, and we quote in part from the charge applying said articles as follows:
"Now, in passing upon the intent of the defendant in this case, you will take into consideration the instrument if any used by him in inflicting death upon the deceased, and, if you should find from the evidence in this case that the instrument so used, if any, was one not likely to produce death, then, in that event, it is not to be presumed that death was designed, unless, from the manner in which it was used such intention evidently appeared. And in passing on this question you will take into consideration all of the evidence before you.
In accordance with the foregoing instructions, you are instructed that 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 appears that there was an intention to kill, but the party from whose acts the death resulted, may be prosecuted for, and convicted of any grade of assault.
You are charged, therefore, that if you believe from the evidence, beyond a reasonable doubt, that the defendant cut or stabbed the deceased with a knife and thereby killed him, but you further believe that the stab or cut was given under the influence of sudden passion, as that term has hereinbefore been defined, and that the knife used was not calculated to produce death in its usual, customary and ordinary use, that is as a weapon, the knife would not ordinarily produce death and further believe that there was no intention on the part of the defendant to kill the deceased, then you cannot convict the defendant of any higher offense than aggravated assault."
The State's testimony shows that after appellant's conversation with Miss Bird, that he said he was going to whip the G__ d__ son of b__ and was going to kill him if he could. King Potter swore that appellant asked him where deceased was and said he wanted him, — wanted to cut his G__ d__ guts out. It is not disputed that appellant called deceased out of the house and that they walked together out to where the cutting took place. Appellant said when they got outside the yard he asked deceased if he had been telling lies on him and that deceased replied that anyone who said that he had been doing so was a G__d d__n liar, and at once struck appellant *Page 243 and knocked him back and staggered him; that he, appellant, got out his knife and cut deceased as the latter again advanced upon him.
There is no testimony in the record as to the size of said knife or the length of its blade, or suggesting that it was not a weapon which used in striking or cutting, would not ordinarily inflict death or serious bodily injury. We are of opinion that the charge as quoted sufficently applied the law of the articles last referred to, to the facts. It was manifestly not the court's duty to tell the jury to acquit, if they did not believe said knife was a deadly weapon; but it was his duty, after presenting the question that if the jury were not satisfied that it was a deadly weapon, to then proceed to consider the charge on manslaughter and aggravated assault. We think there is no merit in appellant's complaint of the charge in the regard just considered, nor in refusing special charges Nos. 3, 4 and 6 which were substantially in accord with the charges as given.
There are ten bills of exception to the argument of attorneys for the State. Their length precludes our setting them out, but we have given to each our careful attention. An explanation is attached to one of said bills and referred to in the approval of others, stating that appellant's attorneys had made inflammatory appeals to the jury not to disgrace the old gray haired father of appellant, etc., etc., and that in the opinion of the court much of the appeal complained of by appellant was in reply to similar appeals made by his attorneys. In none of said bills does there appear any statements of material facts dehors the record from which statements conclusions of guilt might be reached, and none of said bills reflect personal abuse of appellant. They consist for the most part in appeals to uphold the law, to be mindful of the parents of the deceased and of their loss and to keep in mind the destruction of the life of this young man and to do their duty as counsel for the State saw it. To circumscribe the argument of State's counsel to where same would not transgress the bounds of propriety as fixed by those who defend, would be to give to the attorneys for those charged with crime weapons of appeal and denunciation and deny their use to those representing the State. We are not willing to go this far.
That the mother of deceased fainted during this argument, was made the subject of complaint in the motion for new trial, and the evidence of part, if not all, of the jurors was heard by the court in passing upon said motion. As we understand the record it appears that the mother of deceased was seated in the audience and had not testified in the case, and was not known to the jurors with possibly one or two exceptions. As we read the record there was no discussion or reference to this matter in the jury room or in the argument, and we are not led to believe that the trial court exceeded his discretion in refusing the new trial asked for this reason.
Appellant set up in his motion for new trial newly discovered *Page 244 testimony but the motion was not supported by the affidavit of the new witness or of anyone who had talked to or communicated with him, nor is there other evidence of the truth of the assertions in said motion such as would have justified the trial court in acting favorably thereon. It is alleged in the motion that the attorneys for appellant had talked with the witness whose testimony is set up as newly discovered, and it is asserted that he misled them or stated falsely to them, but there is no affidavit by said attorneys giving the communication had by them with said witness. It is manifest that under a verdict such as given in the instant case appellant must have been confined in jail from the time of conviction until now. If in fact there was sufficient communication with the witness in question to furnish the basis of a satisfactory claim that he knew the facts now asserted to be provable at his hands, we think sufficient showing should have been made to the trial court in connection with the motion for new trial to satisfy him with some reasonable certainty that the witness would give the testimony referred to.
The State's case showed bad feeling on the part of appellant toward deceased, and threats made by him prior to the night of the homicide to the effect that he was going to whip deceased, and that deceased had told lies on him, and that deceased was a coward and would not fight. It was in testimony that appellant had said that he was going to talk to Miss Bird and find out if deceased had told certain things on him. This testimony connects closely with the actions of appellant on the night in question. If Miss Bird's testimony is true, he did come to her and after a talk with her in which she asserts that she told him positively that no one had told her any lies on him, that this, coupled possibly with her refusal to make a date with him, aroused his anger, is supported by her testimony; that at once he began seeking deceased and called him from inside the house out into the darkness, and that he told him he wanted to talk to him and went with deceased away from the crowd out to the point where the cutting took place almost immediately, is also without dispute. Three witnesses who saw appellant after his conversation with Miss Bird testified to his serious threats toward deceased. The cutting took place outside the yard in the darkness. Deceased ran back into the yard in a circle and fell and expired without making any statement. On that night and afterwards appellant asserted that he did not know who struck or cut deceased. He made no claim on that night to any of the parties with whom he talked of any claim of self-defense. He says that he talked to Tuck Wolf, apparently a relative, immediately after the cutting. Tuck Wolf was not used as a witness on behalf of appellant. Appellant's father says that when appellant got home that night he told him *Page 245 that he and deceased had a fight and that deceased struck him with something, and that when he straightened up deceased was coming at him.
We think the evidence sufficient to support the conclusion reached by the jury, and finding no reversible error in the record, an affirmance is ordered.
Affirmed.
ON REHEARING. June 29, 1923.