The conviction is for manslaughter; punishment fixed at confinement in the penitentiary for a period of five years.
There was evidence of previous unpleasant relations and threats by the deceased. Cade, riding horseback and possessed of a rifle, was near the home of Peterson, the deceased, when they met. A conversation ensued. Cade, desiring to avoid a difficulty started to ride away. Deceased followed, and using an oath, told appellant: "Don't *Page 525 send your woman to talk to me." Cade laid his hand on his gun and deceased told him to take it off or he would kill him, using an oath and epithet. Describing the tragedy, appellant, in his testimony said that when deceased used the language quoted, he put his hand to the side pocket of his trousers, and appellant, believing that deceased was going to kill him or hurt him, jumped off his horse and commenced shooting. Appellant said that he did not shoot the deceased to kill him; that he did not want to kill him, but shot to stop him. Three shots were fired, all of which took effect. Two penetrated the body.
The only complaint of the charge is that it failed to take note of the issue of the absence of an intent to kill. A statute reads thus:
"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."
Art. 1147, Penal Code.)
Ordinarily, when death results from a wound inflicted with an instrument which the law does not recognize as a deadly weapon, an instruction touching the absence of intent to take life is required. This rule is applied in the cases cited by appellant, viz., Fitch v. State, 37 Tex.Crim. Rep.; Johnson v. State, 47 Tex.Crim. Rep.; House v. State, 75 Tex. Crim. 338, 171 S.W. Rep., 206, in each of which death was produced by a bludgeon and not by a firearm used as such. A different rule applies when, as in the present case, one is killed by a firearm intentionally used as such at close range with an intent to shoot the party killed. The intent to kill is inferred under the express terms of the statute quoted above. The cases cited by appellant and many other support this view. Connell v. State,46 Tex. Crim. 263; Washington v. State, 53 Tex. Crim. 484.
It appearing from the uncontroverted evidence that the appellant, while a few yards distant from the deceased, voluntarily, by the use of a deadly weapon, namely, a Winchester riffle, fired three shots at the deceased, two of which penetrated his body in the region of the heart, killing him instantly, the declaration of the appellant while on the witness-stand that he did not intend to kill the deceased did not render it imperative that the court should tell the jury in an affirmative manner that if they believed there was no intent to kill the deceased, they should acquit the appellant. Unless the jury believed appellant's theory of self-defense, we perceive nothing in the record reducing the offense below the grade of manslaughter. On this subject, the declaration by this court, speaking through Judge Hurt, is worth repeating:
"Now, if the homicide occurs by the use of means which are not in their nature calculated to produce death, the person killing is not *Page 526 to be deemed guilty of homicide, unless there was an intention to kill. But, suppose the means used were calculated to produce death, but there was no intention to kill — the sudden passion existing — would the homicide in such a case be manslaughter? Unquestionably, it would. (Penal Code, art. 614.) Here there seems to be a conflict; for we have seen that, to constitute manslaughter, there must be an intentional killing. To reconcilethis conflict, we are of opinion that, though there is nointention to kill, yet, if the means used were in their naturecalculated to produce death, and the killing is under suddenpassion, then the party killing would be guilty of manslaughter." (Thompson v. State, 24 Texas Crim. App. 386.)
In his motion for new trial, appellant charged in general terms that there was a separation of the jury, and attached the affidavit of A.J. Smith to the effect that he had observed the juror Pennington on one of the streets of Haskell at a point northeast of the courthouse engaged in a conversation with his father, while the officer in charge was present but in the absence of the appellant or the trial judge. No pleading was filed controverting the averments of the motion but evidence was heard upon which the trial court overruled the motion, thereby necessarily implying that his finding was against the truth of the averments in the motion. Under such circumstances, it is the duty of this court to uphold the ruling of the trial court unless he decision is manifestly wrong. Watson v. State, 82 Tex. Crim. 305; Reese v. State, 87 Tex.Crim. Rep.; Barnard v. State, 87 Tex.Crim. Rep.. If the juror Pennington conversed with his father, the burden was upon the State to show the absence of injury. McDougal v. State, 81 Tex. Crim. 179; Toussaint v. State, 92 Tex.Crim. Rep. and cases therein cited. The evidence adduced on the hearing of the motion seems to show without conflict that juror Pennington separated from the other jurors but one time and that then he was in an adjoining room in company with the officer and no one else, the other jurors being a few feet distant and the door separating them being wide open. The facts developed preclude the theory of injury. See Robinson v. State, 58 Tex.Crim. Rep., and other cases collated in the Watson case, supra.
The point is made that in the absence of pleading controverting the affidavit of Smith to the effect that juror Pennington had the conversation mentioned, the presumption that the conversation took place is absolute. The position is deemed unsound for the reason that the court having elected, as it was authorized to do under the statute, to try the issues of fact raised by the motion upon oral evidence heard rather than upon affidavits, the correctness of his ruling would be tested by the evidence adduced and not solely by the affidavits attached to the motion. It is true it has been held in Washington's case, 86 Tex. Crim. 652, and other cases, that where the motion *Page 527 is not controverted and is otherwise formal, the affidavit attached to it will be considered as a part of the motion. It may be added, however, that when evidence is heard upon the issues of fact raised in the motion, its averments are controverted within the meaning of the statute. The statute upon the subject uses these words:
"The State may take issue with the defendant upon the truth of the causes set forth in the motion for a new trial; and, in such case, the judge shall hear evidence, by affidavit or otherwise, and determine the case." (Art. 841, Code of Crim. Proc.)
In the present case the evidence is quite sufficient to show that the juror Pennington did not have the conversation described at the time and place stated in the motion, and there is no evidence that he had the conversation described at any other time or place. Incidentally, we take note of the Stanley case, 16 Texas Crim. App., 392, in which there is an intimation that to controvert the motion, a written pleading is required. This may be true where the motion relates to an application for a continuance, because there the statute requires the denial of the averments to be in writing, supported by affidavits. Code of Crim. Proc., Art. 612. On motion for new trial, however, the statute controlling, which is quoted above, merely declares that "the State may take issue." This was done, we think, in the instant case by the oral evidence heard.
The testimony developed from appellant's wife was not in transgression of the limitations upon the right of cross-examination. There is no such peculiarity in it as would justify its detail or discussion. The rule applicable is stated in Branch's Ann. Tex. P.C., Sec. 147.
Finding no error in the record, the judgment is affirmed.
Affirmed.
ON REHEARING. February 13, 1924.