W. R. High v. The State, 26 Tex. Ct. App. 545

White, Presiding Judge. “Manslaughter is voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified or excused by law.” (Penal Code, art. 593.) Two of the adequate causes enumerated in our statute as being sufficient to reduce a homicide from murder to manslaughter are, “first, an assault and battery by the deceased causing pain or bloodshed; and, second, a serious personal conflict in which great injury is inflicted by the person killed by means of weapons or other instruments of violence, or by means of great superiority of personal strength, although the person guilty of the homicide were the aggressor, provided such aggression was not made with intent to bring on a conflict and for the purpose of killing.” (Penal Code, art. 597.) And it is expressly declared that “an assault and battery so slight as to show no intention to inflict pain or injury” is not an adequate cause. (Penal Code, art. 596.) But a homicide is permitted by law in necessary self defense, when inflicted for .the purpose of preventing (among other offenses) murder or maiming, or serious bodily injury; and the only qualification prescribed is “that the attack upon the person of an individual, in order to justify homicide, must be such as produces a reasonable expectation or fear of death or some serious bodily injury.” (Penal Code, art. 574.) A defendant so attacked is neither hound to retreat nor to resort to any other means before slaying his assailant. (Hunnicutt v.

The State, 20 Texas Ct. App., 634; Williams v. The State, 22 Texas Ct. App., 497; Lee v. The State, 21 Texas Ct. App., 241; State v. Burke, 30 Iowa, 331.) Biit where a necessarily deadly weapon he not used by the assailant in making the attack, it oftentimes becomes a nice if not difficult matter to properly determine the rights of the defendant as between manslaughter upon the one hand and self defense upon the other. As, for instance, in this case where the attack and injury were by the fists of the deceased, with intention of inflicting a beating upon defendant.

If the assault and battery in such a case is so slight as to show no intention to inflict pain or injury, then to kill the assailant would be murder; if pain, bloodshed or great bodily injury be inflicted, then to kill the assailant will be either manslaughter or justifiable ■self defense. Mr. Wharton says, “if such intended beating is of a character to imperil life, or to maim, then the intent is felonious and the assailed is excused in taking life when necessary to repel the assault.

On the other hand, the killing of the assailant under such circumstances, the design of the assailant being to beat, is not murder, and at the highest is manslaughter.” (Whart. on Hom., 2 ed., sec. 480.) It will be noticed that he limits self defense which would excuse “to imperil life or to maim,” and not to an attack which might produce serious bodily injury, with or without imperiling life. We are of opinion the correct doctrine -is more fully and lucidly expressed by the Supreme Court of Pennsylvania in the case of The Commonwealth v.

Drum, 53 Pennsylvania State, 1, than in any authority to which we have access, and it occurs to us that the following excerpts are peculiarly in harmony with our statutes upon the subject. Justice Agnew says: “The act of the slayer must be such as is necessary to protect the person from death or great bodily harm, and must not be entirely disproportioned to the assault made upon him. If the slayer use a deadly weapon, and under such circumstances as the ■slayer must be aware that death will be likely to ensue, the necessity must be great and must arise from imminent peril of life or great bodily injury.

If there be nothing in the circumstances indicating to the slayer at the time of his act that his .assailant is about to take his life or do him great bodily harm, but his object appears to be only to commit an ordinary assault and battery, it will not excuse a man of equal or nearly equal strength in taking his assailant’s life with a deadly weapon. In such a case it requires a great disparity of size and strength on the part of the slayer, and a very violent assault on the part of his assailant, to excuse it.

The disparity on the one hand and the violence on the other must be such as to convince the jury that great bodily harm, if not death, might have been suffered unless the slayer had thus defended himself, or that the slayer had reasonable ground to think it would be. * * * The true criterion of self defense in such a case is whether there existed such a necessity for killing the adversary as required the slayer to do it in defense of his life, or in the preservation of his person from great bodily harm.

If a man approaches another with an evident intention of fighting him with his fists only, and where under the circumstances nothing would be likely to eventuate from the attack but an ordinary beating, the law can not recognize the necessity of taking life with a deadly weapon.

In such a case (pain or bloodshed supervening) it would be manslaughter. * * * But a blow or blows are just cause of provocation, and, if the circumstances indicated to the slayer a plain necessity of protecting himself from great bodily injury, he is excusable if he slays his assailant in an honest purpose of saving himself from this great harm.” (See Kingen v. The State, 45 Ind., 519; also reported in Horrigan & Thomp.

Self Defense, 183.) And in such a case, as in all cases of resistance to violence to the person, -the assailed party is not bound to retreat, and the reasonable expectations and appearances of serious bodily injury must be judged of from his standpoint.

Article 570 of our Penal Code, which defines the circumstances under which homicide is permitted by law in the prevention of other felonies, “comprises all cases in which from the acts of the assailant, or his words coupled therewith, it reasonably appears that his purpose or intent is to murder, ravish, rob, maim, disfigure, castrate, or do other serious bodily injury to the assailed party..

In such case the assailed party may lawfully kill the assailant while he is committing the offense or injury, or when he has done some act evidently showing his intent to commit it, and the assailed party need not resort to-other means of prevention.” (Willson’s Crim.

Stats., sec. 970.) One important condition annexed to the right of self defense by that article (570) is that the killing must take place before the offense committed by the party killed is actually completed. (Subdiv. 3.) How to apply the foregoing principles of law to the facts as they are exhibited in the record before us, we only recount in substance the salient features of the evidence. Defendant, an officer at the depot, and empowered with authority to do so, ordered deceased to get off the platform. He also put his hand against the deceased to push or shove him, back.

Deceased cursed him—told him not to shove him or he-would “knock a lung out of him.” Defendant cursed back,, told deceased if he got upon the platform he would push him¡ off. Deceased shook his fist in defendant’s face, and, as defendant pushed or knocked it away, deceased struck him a severe blow in the mouth, which knocked out “a corner tooth" and sent him staggering several feet against the side of a car which prevented his falling entirely upon the ground.

As soon, as defendant could recover h'imself and straighten up, he drew his pistol and immediately fired the fatal shot at deceased, who-was within a few feet, standing with his fist doubled and his-arm drawn back as though intending to strike again. These, in brief, are all the facts necessary to illustrate what in our opinion was an important and material failure or omission in the charge of the court upon the law of self defense. According to defendant’s theory, he was struck, bruised,, maimed, and to all intents and purposes stricken down. Actual and serious bodily injury has been inflicted upon him.

Defendant has in fact suffered mayhem of his body, whether the deceased intended such consequences or not; for to knock out. a front tooth is to maim him. (2 Bouv. L. Dic, “mayhem;”' 2 Bish. Crim. Law, 7 ed., sec. 1001.) Smarting under the injury,, he recovered himself, sees his antagonist to all appearances prepared, ready, and in the act of repeating the injury. He draws- and fires. From the beginning to the end the whole transaction occurs in a very few seconds. It may be said to be almost instantaneous.

When defendant recovers himself from the-effects of the blow, the combat is not over, for deceased to all appearances has squared himself to deliver another such blow. Can it be said he has completed his offense? It may not reasonably appear so to defendant. From his standpoint it-may be reasonable that deceased has not completed his offense, but is in the very act and has the ability of inflicting the same or greater injury, and, “dum fervet opus,” the shot is fired. This is defendant’s theory of the case. We are not expressing-our opinion as to the evidence.

How, if defendant had already received serious bodily injury at the hands of deceased, and it reasonably appeared to him. from the acts and conduct of deceased that the combat was not over, that he was about to receive additional bodily injury from deceased, that deceased had the ability to inflict the injury, that the danger was threatening and imminent, and, under such circumstances and so believing, he shot and killed deceased, then, under the law as above announced and under •our statute, he would be justifiable upon the ground of his necessary self defense, and if the jury should so believe from the •evidence, it would be their duty to acquit him.

In the otherwise able exposition of self defense announced by the learned judge, this phase of the law, which in our opinion was manifestly called for by the facts, if as above stated, was not submitted in plain and affirmative terms.

Again, defendant’s counsel asked the court to instruct the jury as follows: “The jury are charged that a person has the right to take the life of another in order to prevent himself from being maimed or disfigured, and the killing may take •place at any time while the offender is mistreating him with violence, though the maiming or disfiguring may have been already completed;” and error is assigned upon the refusal thereof, as also upon the refusal of the court to submit any instructions upon the law of maiming in connection with defendant's right of self defense.

The instruction, though sufficient to call the court’s attention to the matter of maiming, was not legally correct with reference to the facts as to the term “disfigured,” there being no evidence of disfiguring as defined in «our statute. (Penal Code, art. 509.) “To maim is to wilfully and maliciously cut off or otherwise deprive a person of the hand, arm, finger, toe, foot, leg, nose, nr ear; to put out an eye, or in anyway to deprive a person of .any other member of his body.” (Penal Code, art. 507; Willson’s Crim.

Stat., sec. 877.) “To constitute the offense of' maiming, the act must be done ,'both wilfully and maliciously. A wilful act is one committed with an evil intent, with legal malice, and without legal justification. A malicious act is one committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischief; a wrongful act, intentionally done without legal justification or excuse.” (Bowers v. The State, 24 Texas Ct. App. 542.) We have seen that to deprive one of a front tooth is to maim him as understood at common law.

The “front tooth” is not, however, used in terms in our code as a “member of the body,” hut we think it clear that it comes within the import of the word “member” as used in the code and in common acceptation, and, under the authorities cited above, we believe that as to “the front tooth” the court may well assume that it is “a member” of the body, without submitting the question as a matter of fact to the jury. (Slattery v.

The State, 41 Texas, 619, appears to hold otherwise.) It would be, however, in this-case a question of fact, to be found by the jury, whether a “corner tooth” was a “front tooth” It may be said that deceased did not, perhaps, intend to-“maim” defendant, and that therefore the act was not “wilfully and maliciously” done.

But it is statutory that “the intention to commit an offense is presumed whenever the means, used is such as would ordinarily result in the commission of the forbidden act” (Penal Code, art. 50); and it is elementary that “a man is always presumed to intend that which is the-necessary or even probable consequence of his acts, unless the contrary appears.” (Willson’s Crim.

Stat., sec. 109.) In cases of maiming it is provided that the killing will b& justifiable if done in its prevention, and “the homicide may take place at any time while the offender is mistreating with violence the person injured, though he may have completed the-offense.” (Penal Code, art. 570, sub div. 6.) Was the deceased.. mistreating the defendant with violence when the latter fired the fatal shot ? This was a matter of fact to be found by the-jury under appropriate instructions from the court. We have already stated the facts in another connection.

The tooth had already been knocked out, if at all, when defendant fired. The maiming was therefore complete. If deceased had his fist doubled and arm drawn back to again strike, was attemping to-strike, and had an immediate intention coupled with the ability to strike, he was committing an assault (Penal Code, art. 484), the test being, was there in fact a present purpose of doing an injury ? (Willson’s Crim. Stat., sec. 811.) To commit an assault upon a party is certainly to “ mistreat” him.

But an assault merely is not “violence” and, as we have said, there must be “mistreating with violence” Under the facts of this case the question was, had there been any cessation of violence by the deceased ? The blow, the injury, the fall, the recovery, the doubling of the fist and drawing back to strike, the drawing and the firing of the pistol, all appear to have been instantaneous acts of the transaction, with scarcely a pause even or let up in the continuity of the acts.

In such a state of case it was for the jury to determine from the facts whether there was any •cessation of active hostilities and violence. We are of the •opinion the court also erred in declining to submit the law of maiming in connection with defendant’s right of self defense. Opinion delivered December 8, 1888. It is questionable if the corpus delicti is sufficiently established. It is certainly not as definitely proven as it might have been by the testimony of the physician who examined the wound and ministered to the dying man.

The deceased was :shot between eight and nine o’clock Sunday night, and died about six oclock the following Monday evening; he was attended by physicians, died at a physician’s house, yet no physician or other person who attended him was introduced as to the nature, extent or location of the wound, or as to whether it was a bullet wound, nor as to what caused his death.

John Jessup, a companion of deceased, testified that “Louis was shot at the Kansas & Gulf Short Line depot; he is dead; he died from being shot; died at Doctor Hicks’s office; was shot in the stomach; defendant shot him.” He also testified that he was at Doctor Hicks’s office a few minutes after the deceased was shot, and that “the next time-1 saw him was about three or four o’clock Monday evening, and then again a few minutes after six; he ■died at six.” This shows that he was not present when the deceased died.

This witness does not testify that he ever saw the wound, nor as to its character, whether it entered the cavity or whether it was at all serious. Bob Jessup, also a hack driver, and a companion of the deceased, testified: “ I knew Louis McDougald; he is dead; Mr. High shot him; I suppose that was the cause of his death.” This is the whole of the testimony touching the question of the cause of the death of Louis McDougald, and no excuse is shown why other evidence was not produced on that point. Ho other questions are deemed of sufficient importance to require discussion.

For the errors discussed, as to the charge of the court, the judgment is reversed and the cause remanded. Reversed and remanded.