Conviction for murder of the second degree, with punishment of five years confinement in the penitentiary.
The evidence presented the issue as to whether the pistol was discharged by appellant accidentally or voluntarily, the deceased being killed by the shot. Upon this issue, the court instructed the jury: "But in this connection you are further charged, that the law is, that when an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention; and therefore, if the jury should find from the evidence that defendant was in fact the person who shot and killed Beasley, if he were shot and killed, then the law presumes that defendant intended to injure Beasley, and it rests with the defendant to show the accident or innocent intention."
Appellant, by counsel, excepted specially to this charge, reserving his bill of exceptions at the proper time. In so instructing the jury the court erred. The writer feels incompetent to add anything to the research and argument of Judge Willson on the subject. The opinion will be found in Jones v. The State, 13 Texas Criminal Appeals, 1.
We are of opinion that what defendant said to witness Lee regarding some one of his wife's relatives persuading his boy to leave him was not competent evidence. It was not relevant for any purpose, and should not have been received.
Because the court erred in the charge specified above, the Judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.