The appeal is from a conviction for murder, with a sentence of ten years in the penitentiary.
It was charged in the indictment that appellant murdered Rena Mae Rice “by then and there cutting and stabbing her with a knife.”
Both appellant and deceased were Negro women who lived with their husbands on M Street, in San Antonio, a short distance from each other. The deceased and her husband operated a cafe which, it is indicated, stayed open a large part of the night, where their customers resorted for drink and gambling. The two families had been at outs for sometime. At about one o’clock in the morning someone threw a rock on the top of the house occupied by deceased and her husband. On investigation, they found appellant going across the street to her house. The other parties involved appeared on the street. Appellant was first seen standing at the corner of her house and then she went in and turned out the lights. Sometime thereafter appellant’s husband came home and was called into the residence of deceased and her husband, where he learned that they were accus*541ing appellant of throwing the rocks. Appellant called her husband away, but he returned to the Rice place soon thereafter. While he was discussing the matter with the Rice family, appellant came out and demanded to know what was going on. A number of Negroes were present. What occurred thereafter is much in dispute from the evidence.
Appellant, supported by some witnesses, gave testimony claiming her act was in self-defense. It is without dispute that appellant and the deceased were in a fight and that deceased received three cuts on the body which were described as superficial and another wound in her back which extended all the way through the chest wall, through the lung. This is described as the fatal wound.
The evidence is sufficient to support the conviction if submitted to the jury under proper charge.
Bill of Exception No. 1 complains of the failure of the court to charge the jury on the question of intent to kill. The bill presenting this cannot be considered because it is in question and answer form. However, the matter was raised by an exception to the court’s charge, which brings it for our consideration. The court overruled the exception with the following statement: “The evidence showing the knife to be a deadly weapon, being a dirk with a 4 1/8 inch blade. The court refused the charge of intent to kill.”
The knife in question was introduced in evidence and sent to this court as a part of the record. We think the court’s conclusion that it was a dirk is error. It is an ordinary hunting knife, as generally described, being four inches in length from the jaw to the end of the blade.
The question thus raised is identical with that considered by this court in Goldman v. State, 150 Texas Crim. Rep. 24, 198 S.W. 2d 895. The authorities relied on were discussed at great length and it will not be necessary to restate them here. Following the Goldman case, we think the court committed error in assuming that the knife was a deadly weapon and in failing to respond to the exception lodged against his charge. See also 22 Texas Jurisprudence, p. 965, Sec. 261, on Intent, and authorities therein discussed.
For the error discussed, the judgment of the trial court is reversed and the cause is remanded.