Appellant was indicted in the District Court of Potter County, on May 13, 1909, charged with the murder of one Jose Perris. On a trial therein had on June 2 of the same year he was found guilty of the offense of manslaughter, and his punishment assessed at confinement in the penitentiary for two years.
1. The court submitted the issues of murder in the first degree, murder in the second degree, manslaughter, and self-defense. Among other things, on the issue of manslaughter, the court thus instructed the jury: "Insulting words or gestures, or an assault and battery, so slight as to show no intention to inflict pain or injury, are not deemed adequate causes.
"The following are deemed adequate causes, to wit: the use of insulting language to defendant by the deceased, about the defendant's mother, as testified by defendant and other witnesses, accompanied by an assault upon defendant with a knife, if done in such manner and *Page 150 under such circumstances as to indicate no intention to kill or do serious bodily injury."
This charge of the court is complained of as being erroneous under the facts, and to cure the error therein appellant requested the following special instruction: "You are instructed at the request of the defendant that homicide may be reduced from murder to manslaughter upon any cause that produces a degree of passion in the mind of the slayer, that renders him incapable of cool reflection, and if you believe from the evidence that the deceased struck the defendant with a knife which produced bloodshed from the defendant, then the law declares the same to be adequate cause and a homicide committed under terror, rage and resentment of such injury, then you can not consider any higher degree of crime than manslaughter."
The charge of the court complained of is erroneous under the facts in that it requires the jury to believe both the use of insulting language by the deceased about defendant's mother, and further that such language should be accompanied by an assault with a knife. Since, however, appellant was convicted of manslaughter, and particularly in view of the facts that he was given the lowest penalty, an incorrect charge on this subject could not possibly have injured him. This view also disposes of many other criticisms of the court's charge on this subject.
2. The court, on the law of self-defense, thus instructed the jury:
"Every person is permitted by law to defend himself against an unlawful attack, reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified by law when committed in defense of one's person against any unlawful and violent attack, made in such a manner as to produce a reasonable expectation or fear of death or some serious bodily injury. A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such cases the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
"If from the evidence you believe the defendant killed the said Jose Perris, but further believe that at the time of so doing the deceased had made an attack on him which, from the manner and character of it, and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant killed deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such an attack on defendant, and if the weapon used by him and the manner of its *Page 151 use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant."
In paragraph 15 of the court's charge, just preceding the charges above quoted, the jury are thus instructed: "The instrument or means by which a homicide is committed are to be taken into consideration in judging 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."
This charge was objected to for the reason that appellant's intent was not a question to be determined on the trial, and that said charge is without evidence to support it, and that same was prejudicial for the reason that the court applied said charge to that portion of same on which appellant was convicted, to wit: manslaughter, and same was a limitation on his right of self-defense. We are not prepared to agree to this contention. The character of the weapon used by appellant was not very clearly shown in the evidence, nor does it appear that it was of necessity a deadly weapon, and in such state of case it was indispensable for the court to have given the charge complained of, and a failure to have given same would have been error. Such charge was helpful and beneficial to appellant, and he is without just cause of complaint that same was given.
3. Complaint is made to the following portion of the court's charge on the law of self-defense: "Every person is permitted by law to defend himself against any unlawful attack reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary." It is claimed this charge is erroneous for the reason that it had a tendency to impress the jury with the belief that the court thought that defendant had used more force than was necessary, and also indicated to the jury that he should have resorted to other means of defense than the means used. We think that this complaint is without just basis. The evidence showed if any assault was committed at all on appellant, that same was very slight, whereas the evidence showed that the body of deceased bore numerous wounds, and in view of the entire record justified the submission of this issue to the jury. The evidence showed that he had two stabs in front, one on the left side of the stomach from which his entrails were protruding, and the other higher up in the ribs and just under the nipples, and that his throat was cut from pretty near the ear to just past the middle of the throat, and that his fingers were cut twice. If any case required a charge such as this, it seems peculiarly applicable here.
4. Nor do we think, under the facts of the case, there was any error in giving the following portion of the charge on self-defense, which is made the basis of complaint: "If from the evidence you believe the defendant killed Jose Perris, but further believe at the time of so doing *Page 152 the deceased had made an attack upon him, which from the manner and character of it and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such fear, he killed deceased, you should acquit him." In this case the evidence showed considerable familiarity between the parties; that deceased was at the time quite drunk, and, generally, such a state of affairs as made the giving of such charge appropriate, and same can in no sense be said to be harmful. We think in view of all the facts that the charge of the court on self-defense was sufficient. There are no bills of exception in the record, and the only matter complained of is the court's charge. We think, in view of all the facts, which we have carefully examined, that appellant's objections to the charge on self-defense, considered as a whole, are not substantial. That it was subject to some verbal criticisms may be conceded, but these were not of a serious character or such as, in our judgment, could possibly have influenced the result of the trial.
5. The evidence seems well to sustain the verdict, and on the entire record we think appellant is without just cause of complaint.
The judgment is affirmed.
Affirmed.