Among other things urged upon motion for rehearing appellant insists that error was committed in refusing his special charge which would have instructed the jury as to the presumption arising from the use of a deadly weapon by the injured party. Exception was reserved to the refusal of the charge. There having been an entire omission from the main charge of an instruction upon the subject, the requested special charge and exception to its refusal saved the point. See Parker v. State, 98 Tex.Crim. Rep., 261 S.W. 782; Bell v. State,99 Tex. Crim. 61, 268 S.W. 168; Banton v. State, 119 Tex. Crim. 169,46 S.W.2d 703. The record contained sixteen special charges and twenty-one bills of exception. By reason of the many questions presented for review the seriousness of the one mentioned escaped us on original submission.
Article 1223, P. C. (1925), reads: "When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury."
It is the settled law that this article should be charged when deceased — or the injured party — is using a weapon which is deadly per se; or if the evidence raises an issue as to whether the instrument used was one calculated to produce death or *Page 362 other injuries included in said article, then the jury should be instructed as to what the presumption would be in event they should find the instrument used was of the character mentioned. Briscoe v. State, 90 Tex.Crim. Rep., 236 S.W. 991; Gaither v. State, 3 S.W.2d 814; Holland v. State,112 Tex. Crim. 164, 15 S.W.2d 626; Strickel v. State,117 Tex. Crim. 433, 33 S.W.2d 451; Yarbrough v. State,129 Tex. Crim. 177, 84 S.W.2d 729; McFarland v. State, 104 S.W.2d 879.
The charge requested defined a deadly weapon to be one which from the manner used is calculated or likely to produce death or serious bodily injury, and then told the jury in substance if they found that Cummins was using a deadly weapon on appellant what the presumption of law would be.
The only question left for us to decide appears to be whether the evidence raised an issue as to the deadly character of the instrument being used by the injured party when cut by appellant, and it seems needless to go beyond the facts certified as true by the trial court in the bill of exception which brings forward complaint of the refusal of the special charge. After setting out the requested instruction and reciting that it was refused, the bill proceeds as follows: "And be it further remembered that the evidence in this case showed that the defendant was a negro; that at the time of his assault on Cummins, there was some eight or ten white men either surrounding him or in his immediate vicinity, all of whom were armed with sticks of varying length and weight. That prior to the assault, the defendant had made the statement that Mr. Daniels had gotten one of the rabbits that his dogs had caught, whereupon Jess Daniels advanced upon defendant with a stick and made the statement: 'Whoever said I got his rabbits is a liar.' It was at this time that the negro pulled his knife, whereupon Cummins advanced upon the defendant with a green stick from two or three feet long, and about two inches in diameter, commanded the defendant to put up his knife and struck at him with the stick. And be it further remembered that the witness, Cummins, testified that the stick that he had in his hand and with which he struck at the defendant was of sufficient size that he could probably have killed a man with it."
The recitals are a fair deduction from the record, and are supported by the statement of facts. Other evidence found therein would support a conclusion that the stick used by Cummins was perhaps not as dangerous as indicated by him, but it appears from the entire record that the issue as to whether the stick was of a deadly character was raised. *Page 363
Under the authorities cited and many others referred to in the cases mentioned we are constrained to grant appellant's motion for rehearing, set aside our judgment of affirmance and now direct that the judgment of the trial court be reversed and the cause remanded.