Upon a reconsideration of the record in the light of the able motion for rehearing and oral argument thereon, we think we were wrong in holding that the paragraph of the charge quoted in the original opinion embracing the substance of Art. 1147 of the Penal Code, was not prejudicial to the appellant. Art. 1147, supra, reads thus: *Page 60
"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."
On the original hearing we were influenced by the quotation from the opinion in McKenzie's case, 96 S.W. Rep. 932. We believe that opinion is in conflict with others subsequently written by the same distinguished judge as well as by other members of this court in former times. See Burnett v. State,46 Tex. Crim. 116; Gallagher v. State, 55 Tex. Crim. 50; Andrus v. State, 73 Tex.Crim. Rep.; Campos v. State, 50 Tex.Crim. Rep.. From the cases last above mentioned, as well as from Dugan v. State, 86 Tex.Crim. Rep., it is apparent that the design of Art. 1147 is to protect the accused in a homicide case against the presumption that the jury might indulge in conflict with the presumption of innocence. We are inclined to the view that it has no application in a case in which the homicide was committed with a pistol used as a firearm at close range. Under some circumstances, such a charge, though not applicable, might not be harmful. The statutes seem to be designed for use in favor of the accused in those cases of homicide in which death results from the use of a weapon which ordinarily would not be a deadly weapon. See Twyman v. State, 96 Tex.Crim. Rep., and authorities there cited.
In the present case, the deceased met his death from a pistol shot fired while he and the appellant were engaged in a struggle. There is no question that if the pistol was used as a firearm it was a deadly weapon, but there is no presumption that appellant fired the pistol. The sole issue was whether the pistol was fired by accident or design. If by design, the homicide was culpable; if by accident, it was excusable. Under the facts, it occurs to us that only the statutory presumption operating, was the presumption of innocence. The appellant claims in his testimony that the discharge of the pistol was accidental. This issue we believe should have gone to the jury unburdened with an instruction touching the presumption arising from the use of a deadly weapon.
From what has been said it follows that, in our opinion, the appellant's motion should be granted, the affirmance set aside, the judgment of conviction reversed and the cause remanded, and such is the order.
Reversed and remanded. *Page 61