dissenting.
The indictment contains three counts charging that appellant deprived Addie Bell Williams (1) “of a member of her body, to-wit, her eyes, by then and there wilfully and maliciously putting out her said eyes by throwing lye into the face of the said Addie Bell Williams” and (2) of “both of her eyes, by then and there * * * throwing lye into the face of the said Addie Bell Williams and putting out both of her eyes” and (3) of “her eyes, by then and there * * * putting out her said eyes by throwing a solution, the contents of which is unknown to the Grand Jurors, into the face of the said Addie Bell Williams.”
All three counts were submitted to the jury and a general verdict of guilty was returned, without a finding by the jury, or the trial court in entering judgment, as to which count was sustained by the proof.
I make mention thereof because of the peculiar facts here presented. If lye constituted the means used, then the state knew and was cognizant of that fact; if the state did not know ¡what was used and could not ascertain or identify the means used, then lye was not used. Moreover, the jury could not say that lye was used and, at the same time, say that the proof did not show the means used. Both conditions could not exist.
The state’s witness Dr. Crymes was very positive that lye caused the loss of the eyesight. He testified, “I certainly know it was lye. And that ain’t no lie.”
Notwithstanding such direct testimony and also that of another doctor to the same effect, the state called as a witness the foreman of the grand jury which returned the indictment in this case and proved by him that the grand jury was unable, *288after diligent effort, to “determine definitely beyond any reasonable doubt what the solution was.”
If the state was unwilling to accept the testimony of its own witnesses that lye constituted the means used, then what means were used? Under this record, no one, not even the trial court, has attempted to say.
It must be remembered that in order for this appellant to be guilty, she must have wilfully and maliciously put out the eyes of the injured party. “Wilfully,” as there used, means “intentionally,” with evil intent, while “maliciously” signifies the intentional doing of a wrongful act. Ohlrich v. State, 162 Texas Cr. Rep. 502, 287 S.W. 2d 478.
The trial court defines those terms to the jury in keeping with the meaning here given.
Art. 1166, P.C., defines the offense of maiming as follows:
“Whoever shall wilfully and maliciously cut off or otherwise deprive a person of the hand, arm, finger, toe, foot, leg, nose or ear, or put out an eye or in any way deprive a person of any other member of his body shall be confined in the penitentiary not less than two nor more than ten years.”
As applicable to the instant charge as well as the facts, the offense of which appellant has been convicted is the wilful and malicious putting out of the eyes of the injured party. So, for her to be guilty, appellant must have thrown the solution— whatever it was — into the face of the injured party with the intent to put out her eyes, and for no other purpose.
Proof, merely, that lye was thrown in the face of the injured party will not sustain a conviction. It must have been done wilfully — that is, with intent and purpose to put out the eyes of the injured party or the sight thereof and not merely for the purpose of an assault.
The facts must show that the means used were such as in the manner used would ordinarily result in maiming and be such as would supply the necessary intent to maim. Rankin v. State, 139 Texas Cr. Rep. 247, 139 S.W. 2d 811.
It was the state’s contention, and evidence was introduced to that effect, that appellant assaulted the injured party by *289striking her over the head and around the face with a paper sack in which there was a can containing some character of solution. The solution spilled or got into the eyes of the prosecuting witness as a result of which she lost the sight of both eyes.
The defensive theory, supported by the testimony of the appellant, was to the effect that on the day of the difficulty she had been engaged in cleaning the kitchen stove of her employer and used a solution of “Saniflush” for that purpose; that the remainder of the Saniflush solution was put in a can; that after the can was covered it was put in a sack; and that appellant then placed the solution in the can in the sack in her automobile to take home with her to be used in cleaning her own stove.
Appellant further testified that the prosecuting witness made an attack on her, without justification or excuse, while she was seated in her car, by beating her on the arm with a hammer; and that as she (appellant) was being pulled from the car by the “hair of the head,” she grabbed the sack containing the can of solution and “throwed it in her face, can, paper sack and all.”
In addition to her plea of self-defense, appellant denied any intent to maim or injure the prosecuting witness.
There is an absence of any testimony that the solution in the can was, in fact, “Saniflush” or a solution of Saniflush or that a solution of Saniflush would destroy or be calculated to destroy eyesight when thrown into the eyes. Nor is there any suggestion, under evidence, as to the strength of the solution or that appellant knew or had any knowledge that loss of eyesight would result when a solution of Saniflush was thrown into the eyes.
Under this state of facts, the trial court, after defining the term “wilful” and “malicious,” instructed the jury as follows:
“Bearing in mind the foregoing law and definitions, if you find and believe from the evidence beyond a reasonable doubt that the defendant, in Mitchell County, Texas, on or about the 9th day of July, 1955, wilfully and maliciously threw into the face of Addie Bell Williams a solution of lye, or any other solution, the contents of which being unknown to the Grand Jury, that put her eyes out, then you will find the defendant guilty *290and assess her punishment at a term in the State penitentiary for not less than two years nor more than ten years, as you, in your discretion, may determine. But unless you do so find and believe from the evidence beyond a reasonable doubt, or if you have a reasonable doubt, then in that event you will find the defendant not guilty.”
In addition, the trial court also instructed the jury as follows :
“You are further charged that if you find and believe from the evidence beyond a reasonable doubt that the means used by the defendant was such as would, in the manner used, ordinarily result in maiming or destroying the sight of the eyes, the law presumes that the intention was to maim, without regards as to the knowledge of the defendant, in using such means, as to whether or not the same would be calculated to maim or destroy the sight of the eyes.”
By these instructions the jury were told that if appellant intentionally and with malice threw into the eyes of the prosecuting witness a solution of some kind or character which resulted in destroying the sight of the eyes, the law presumed that she, the appellant, intended to put out the eyes of the prosecuting witness — and this, regardless of whether appellant knew the solution was likely or calculated to destroy the sight of the eyes or that the solution was in fact calculated to do so.
The charge was not a correct statement of the law, because (a) a trial court at no time or place or under any conditions has the lawful right to instruct a jury that an accused is presumed to be guilty of the offense charged, and (b) the presumption of innocence is stronger than any presumption of guilt which might arise merely from the means used to accomplish a guilty purpose. The burden of proof rests upon the state to overcome the presumption of innocence by establishing the guilt of the accused beyond a reasonable doubt. A trial judge could not, therefore, be authorized to instruct the jury that the accused is presumed to be guilty. In my opinion, that is what the trial judge here charged the jury.
What the trial court was here doing was applying the provisions of Art. 45, P.C., to this case. That article reads as follows:
“Intention presumed. — The intention to commit an offense is *291presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.”
Throughout the years, this court has cautioned trial courts against giving this article in charge to the jury, for the reasons above stated. Attesting authorities will be found collated under Note 3 of Art. 45, Vernon’s C.C.P. See, also, Baylor v. State, 151 Texas Cr. Rep. 365, 208 S.W. 2d 558. Especially is that true where, as here, the elements of Art. 45, C.C.P., were given in the abstract, with no application being made thereof to the facts. Stanford v. State, 103 Texas Cr. Rep. 182, 280 S.W. 798.
The facts and conclusion stated become material in passing upon appellant’s contention that she was entitled to have the jury instructed upon her lack of intent to put out the eyes of the prosecuting witness. The trial court nowhere charged the jury upon that subject. By exception to the court’s charge, as well as by a special requested charge, the trial court was requested to do so.
In my opinion, the trial court should have responded to that exception and to that request.
The appellant expressly testified to a lack of intent to injure or maim the prosecuting witness.
No one knew what constituted the means used by appellant —that is, whether such was lye or some other solution. Under such state of facts it could hardly be said that the means used constituted such as would ordinarily result in destroying the sight of the eyes.
Notwithstanding such fact, appellant was presumed to be guilty, according to the trial court’s charge, if the means used would ordinarily result in destroying the sight of the eyes. If the state did not know what solution was used, I am at a loss to understand how it could, at the same time, presume what result would follow from the ordinary use thereof.
I am convinced that the appellant was entitled to have the jury instructed in accordance with her affirmative defense of a lack of intent to injure or maim the prosecuting witness.
Whatever be the presumption arising by Art. 45, P.C., it surely cannot be said that it may not be rebutted. To me, that is exactly what my brethren here hold when they say that under *292the instant facts appellant was not entitled to have the jury instructed upon her lack of intent to maim and that she could not rebut by proof, therefore, the presumption of an intent to maim, which presumption the trial court submitted to the jury.
I am aware of the line of authorities which hold, in cases similar to that here presented, that the trial court is not under the burden of requiring a finding by the jury of a specific intent to maim in order to convict.
That rule, however, has no application here, where the appellant was asking only that the jury be instructed upon her lack of intent to maim or injure. Has the time come when an accused is not entitled to have the jury instructed upon an affirmative defense? It looks like it.
There is, in my opinion, another and very cogent reason why the charge of the trial court was error: There is not a line of testimony suggesting that appellant knew that the solution, in the manner used, would ordinarily result in putting out the eyes. According to her testimony, appellant thought the solution was a solution of Saniflush. There is no testimony suggesting that a solution of Saniflush would, in the manner used, ordinarily result in putting out the eyes. So then, if the solution used was not a solution of Saniflush but was, in fact, some other solution, appellant could hardly be charged with knowledge of its effect.
Thus, the defense of a mistake of fact is shown — that is that the solution used was not in fact a solution of Saniflush, as appellant thought, but was another and different solution and one which, in the manner used, deprived the prosecuting witness of her eyesight.
When the trial court instructed the jury to the effect that appellant was presumed to be guilty if she threw the solution into the face of the prosecuting witness, he completely took from the jury all consideration of the question of a mistake of fact on the part of the appellant. Under the instruction as given, the jury was not authorized to consider for any purpose the affirmative defense of a mistake of fact.
I call attention, also, to the fact that the offense of maiming does not arise where the maiming arises out of a sudden attack unconnected with any premeditated design. Key v. State, 71 Texas Cr. Rep. 642, 161 S.W. 121.
*293The instant facts, especially those shown by the testimony of the appellant, definitely raised the defense that what was done by the appellant was sudden and without any premeditation and therefore without an intent to commit the offense charged. For this further reason, the charge on lack of intent should have been given.
I cannot bring myself to believe that this appellant has been shown to be guilty of the offense charged. All the cases, with which I am familiar, wherein convictions were sustained for maiming, contain evidence showing that the means used were calculated to cause or bring about that result. I know of no case —and confidently assert that there is none — in which a conviction was had for maiming where no one knew or had knowledge of what constituted the means used or that the ordinary use thereof would result in maiming. This conviction rests upon such a state of facts.
There is no testimony showing that such solution was dangerous or was likely, in the manner used, to put out the eyes of the prosecuting witness.
The evidence in this case, in my opinion, does not show the crime of maiming, because of the absence of any evidence of an. express intent to maim or the existence of any facts by which that intent may be said to have been otherwise shown or established.
The majority opinion suggests that appellant did not sufficiently except to the court’s charge for the failure to charge upon her lack of intent to maim.
In order that there might be no mistake about this, I quote from the special charge that appellant requested, viz.:
“* * * and if you further believe from the evidence that throwing such solution into the eyes of Addie Bell Williams was accidental, and not intentional, upon the part of the defendant, or if you have a reasonable doubt thereof, you will give the defendant the benefit of such doubt and acquit her, and say by your verdict Not Guilty.”
Such charge was refused, and appellant excepted. Exceptions and objections to the failure to give the charge were reserved to the court’s charge.
*294The trial court charged neither upon accident nor lack of intent.
I am at a loss to understand how it may be said that the requested charge was not sufficient to request that the jury pass upon appellant’s affirmative defense of a lack of intent to maim. To my mind, the duty of the trial court to submit to the jury that affirmative defense was so clear and necessary, under the facts here presented, that no request or exception therefor was necessary or should have been required. The trial court should have instructed upon that defensive theory in obedience to the duty resting upon him to “deliver to the Jury * * * a written charge, distinctly setting forth the Law applicable to the case.” Art. 658, Vernon’s C.C.P.
However, if an exception or request on the part of appellant to have that issue submitted to the jury was necessary, the least suggestion along that line is, in my opinion, all that should have been necessary or required. To my mind, the special requested charge was sufficient for that purpose.
Under the facts of this case when viewed as a whole, together with the appellant’s positive testimony that she did not intend to injure or maim the prosecuting witness, it occurs to me that if our vaunted claim of equal justice under law really exists, in fact, and is not a mere figment of imagination, surely, then, somewhere or at some stage of the trial the jury should have been told that if appellant did not intend to maim the prosecuting witness when she threw the solution upon her, or if they entertained a reasonable doubt that she did not so intend, she would not be guilty.
Instead of such instruction being given, the jury were told, in effect, that appellant was presumed to have intended to maim. Under the facts, the charge which I have heretofore copied had that force and effect.
I respectfully dissent to the affirmance of this case.