Article 51 of our Penal Code is as follows: "The intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act."
Article 1147 of our Penal Code 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 appears."
As we understand the above articles in the light of the language used and the decisions of this court, the presumption referred to in Article 51, supra, does not obtain in a given case under Article 1147, supra, when the instrument used is one not likely to produce death, unless from the manner of its use the intent to kill evidently appears. The converse of this statement would be that if, from the manner of the use of a weapon not per se deadly, the intention to kill evidently appears, the presumption referred to in Article 51, supra, would obtain.
Article 1147, supra, is a limitation on Article 51, and in cases where the instrument used is not per se deady, i.e., not likely to produce death when used as a weapon to cut or stab with in ordinary cases like the one before us, the presumption referred to in Article 51 does not obtain, unless from the manner of the use of such weapon the intention to kill evidently appears. The presumptions referred to are of law. Border v. State, 42 Tex.Crim. Rep.; Spivey v. State, 45 Tex. Crim. 496; Burnett v. State, 46 Tex.Crim. Rep.; Gallagher v. State, 55 Tex.Crim. Rep.; Andrus v. State, 73 Tex. Crim. 329, 165 S.W. Rep., 189. For practical purposes in the trial of cases it seems to us that a condensed statement of Articles 51 and 1147, supra, might be thus made; if there be an issue as to the deadly character of the instrument used, when ordinarily used in similar cases, the question of the intent to kill should be submitted to the jury and they should be told in appropriate language that if in such case they do not find that the defendant *Page 246 intended to kill, they could not find him guilty of any grade of felonious homicide. In other words, if A in an attack on B which results in death uses a weapon not ordinarily deadly when used in such attack, the question is, — did he intend to kill? If yea, and neither justified nor excused, he is guilty of felonious homicide. If nay, — only of some grade of assault.
In the instant case, in addition to quoting Article 1147 in his main charge, the learned trial judge gave the following special charge at the request of appellant:
"In all cases of homicide the law requires as an element of guilt an intention to kill; and if, in this case, you find that defendant did not, when he cut or stabbed deceased with a knife, (if you find that he did cut or stab him) intend to kill deceased, then you should acquit the defendant of any grade of homicide and inquire only as to whether or not he is guilty of some grade of assault and battery, under other instructions of the court." This was favorable to appellant. It assumes in effect that the knife was not deadly, and authorizes acquittal of felonious homicide, if there was no intent to kill.
This put plainly before the jury the only question necessary for them to decide in connection with Article 1147, in its application to the facts of this case, and the refusal of appellant's special charge No. 2, which he now insists requires a reversal, was not erroneous. There is nothing in Shaw v. State, 34 Tex.Crim. Rep., nor in the conclusion of the court in Grant v. State, 65 Tex.Crim. Rep., 143 S.W. Rep. 929, contrary to our views here expressed. There is much in the reasoning in the latter case which we can not follow, but the conclusion of the court in that case is expressed as follows: "Independent of Art. 717 (now 1147) appellant's purpose and intent in the difficulty under the circumstances of this case ought to have been charged as well as the provisions of said article." The distinguished jurist writing for the court in said case then concludes his opinion by saying that a special charge very similar in substance to that given in the instant case, and quoted above, should have been given. The attack made by the appellant in that case was only with nature's weapons, hands and feet, and the court expresses serious doubt as to the sufficiency of the testimony to support a conviction for homicide in any event.
We regret our inability to follow learned counsel for appellant in their conclusions regarding charges necessary in a case where the deadly character of the weapon used, is questionable. The fewer the words used, if adequate and apt in placing the legal issues involved before a jury, — the less likelihood of confusion and misunderstanding. Appellant's counsel in the preparation of the special charge given chose apt words to express the pith of Article 1147, which was that in a case such as the one on trial, before the jury *Page 247 could convict of felonious homicide they must find that the accused intended to kill. We believe much confusion could be avoided by the submission of this issue in similar form. The learned trial judge gave a definition of a deadly weapon in paragraph 16 of his charge. The definition given was that usually found in charges where the question of the deadly character of the weapon used is an issue. While said charge does refer therein to the definition given as a correct one in charges heretofore and hereinafter given, there are no subsequent charges in which the expression "deadly weapon" is used.
Appellant excepted to certain parts of the argument of the State's attorney and insists that we erred in not holding same reversible error. At the risk of being tedious we quote most of the bills of exception, the argument objejcted to. The argument objected to in bill of exceptions No. 26 is as follows:
"Say to the mothers of this country who God knows suffer enough, say to them who go down in the valley of the shadow of death to bring future citizens in this country, that we will stand by you. If you don't we as well buckle on our six-shooters and go out and afford our own protection. You don't know but what some other mother's boy will be next unless you convict this defendant."
In bill No. 27 to the following:
"This man is guilty of murder and ought to be convicted. I know nothing of the facts in this case only from investigation I have made and from that I am convinced of his guilt."
In bill No. 29 to the following:
"When the defendant stabbed Willis Hopson and saw him fall dead, and said he did not know who did it, he had heard of big murder trials and with his money and lawyers behind him, he thought he would come free."
In bill No. 30 to the following:
"Close your eyes and go out and see Mrs. Lee Hopson as she goes to the funeral of her son, think of her head bowed with grief. Is it worse to send this boy to the penitentiary and bring disgrace to himself and to his father than to kill this inoffensive boy so that he can't return to his home or to the mother who gave him birth? If that is your verdict, gentlemen of the jury, there can be no enforcement of the law in the State of Texas. We stand by the dead body of Willis Hopson and in the name of the mothers of this State, appeal to you."
In bill No. 31 to the following:
"Turn this man loose if you will, wrestle with your consciences the rest of your life, go home and kiss your wife with a stained lip. Say to your wife whenever your boy is cut down like a dog, the juries of this county will turn the murderer loose and parade him as a hero."
In bill No. 32 to the following: *Page 248
"Unless juries will convict under the statement of facts in this case, I don't see how the State of Texas can protect you and me. There are some people that have no fear of God or man. The only fear they have is of the penitentiary or the gallows. The only thing that will protect us from them is that the juries of the State will enforce the law of murder. Unless the juries of the State will convict these murderers the people of this state are in danger; and you are in danger and I am in danger and your boy or my boy may be the next boy murdered to have his murderer turned loose and paraded as a hero."
In bill No. 33 to the following:
"Unless you brand this boy as a murderer and send him to the penitentiary or take his life, your boy may be the next or somebody else's boy."
In bill No. 35 to the following:
"If you do not convict Jack Wolk, Jr., of murder in this case then I say turn them all loose and let the people of Coryell county buckle their pistols around them and protect themselves and let Willis Hopson's father do it and do not come to juries any more."
In bill No. 36 to the following:
"Black and Jack Wolf, Jr., had fixed the plan. Willis Hopson did not know that when he was called out that in five minutes his lips would be sealed in death; and did not know that the plan was fixed and the signal set to seal his fate; give Willis Hopson who is now dead and whose lips are sealed in death a chance."
These statements occurring in the argument are thus fully set out because increasingly complaints are here presented to arguments of State's attorneys and we are asked to reverse cases upon same. We quote approvingly from Pierson v. State, 18 Texas Crim. App. 564:
"As to the other remarks of the district attorney which were objected to, we can perceive no impropriety in them. It was the duty of the district attorney, if he thought the evidence established the guilt of the defendant, to demand his conviction. He demanded a conviction in the name of the State, in the name of law, justice and right, in the name of society, in the name of the widow and children of the deceased. We see nothing wrong in this. If the defendant committed the murder, he had acted against the peace and dignity of the State; he had outraged law, justice, right and society; he had clothed the wife in widow's weeds, and had made fatherless the children of the deceased; and each and all of these consequences of his crime demanded his conviction and punishment.
It has become quite common to except to the remarks of counsel for the State in their addresses to the jury. We find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. While argument *Page 249 should be restricted legitimately, it should not be unreasonably limited as to render it ineffectual. The State has rights in this respect as well as defendants. And in view of the frequency of exceptions of this character, we will take occasion here to say that before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us, 1, that the remarks were improper, and 2, that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant's rights."
In the instant case the learned trial judge gave special charges asked instructing the jury not to consider the arguments above quoted, shown in bills of exception No. 26 and special charge No. 14, which latter closed with the instruction to them to not consider any emotional and inflammatory language to the same effect but to not consider anything in making up their verdict except facts introduced in evidence, and in the qualification to bill of exceptions No. 27 makes the following statement:
"I though that these charges as given were sufficient to cover all special charges requested by the defendant. In this connection, with reference to the argument of the district attorney, I desire to say that counsel for defendant in this case as in the usual criminal case of this character, employed emotional appeals in behalf of their client; played upon the sympathy of the jury for the gray haired father of defendant and in this way provoked and invited emotional argument on the part of the district attorney."
We find in none of the arguments objected to any statements of evidence dehors the record, nor is there any personal abuse or vituperation, nor such inflammatory language as would call for a reversal of this case. Appeals to the jury to uphold the law and expressing the opinions of the attorney representing the State as to effects which might follow from adverse decision by the jury, are known to them to be but opinions and conclusions of the attorney. If State's attorneys were compelled to discuss only the facts in evidence and could make no reply in kind to appeals such as are stated to have been made in the qualification of the trial judge above set out, and could make no kind of illustrations or appeals to the jury, a limitation would thus be put upon the representatives of the State which would manifestly be unfair. Counsel for those accused of crime have practically unlimited territory to explore in appeal and argument, and unless it is shown to the satisfaction of this court that some unfair advantage is taken, some uncalled for statement made or some fact placed before the jury not in evidence, or some other character of argument indulged in by State's counsel which obviously would be calculated to mislead the jury, we would not feel called on to reverse for argument.
We fully appreciate counsel's argument regarding the seriousness *Page 250 of a punishment such as was inflicted in this case for what is called the tragic ending of a boy's fight wherein the hand of fate directed the one blow struck by appellant with his knife, to a point where the great carotid artery lay so close to the surface. The question of the intent of the appellant in the use of his knife was fully submitted to the jury by the learned trial judge and doubtless similar or stronger appeals were made to the jury by able counsel representing this appellant. The solution of questions of this kind was for them or are for presentation to the Chief Executive of the State.
The motion for rehearing will be overruled.
Overruled.