James Ward v. The State, 30 Tex. Ct. App. 687

HURT, Judge. This is a conviction for murder of the second degree, the penalty being fixed at twenty-five years in the penitentiary. We will state substantially the facts attending the homicide, for the purpose of presenting a question in regard to which counsel contend the trial court erred in failing to give in charge to the jury

article 571, Penal Code. Mrs. Sarah Messick, widow of deceased, testified: “Messick went to town the day of the killing. I gave him his pistol, which was wrapped in a flannel rag.” The witnesses Norris, Hutchinson, and others testified, that deceased had a pistol on his person. Dr. Willliams: “I spoke to Ward, and rode off. Messick immediately spoke to Ward. When Ward shot I could not see what Messick was doing with his left hand, as his body was between me and his left hand, but it was not down by his side.

The first time I noticed the attitude of the body after Messick was dead, his left hand was on his right breast, and a pistol was partially out of his right breast pocket and in close proximity with his left hand. He had his left hand raised in some way when he was shot, but I could not see its exact position for his body. I could not see what Messick was doing, as the right side of his body was turned from me, but his left hand was raised in some position. Messick’s hand was on his right breast, at or near where a pistol was partially drawn. I saw the deceased when he fell.

He had a pistol in his right breast pocket, which was partially drawn. I can not say whether he had his hand on it when shot. This is all I can say about an attack on deceased by the defendant. I did not understand what Messick said to Ward. Ward said nothing.” James Ward said: “When I got up in twenty or thirty feet of them, Dr. Williams spoke to me. Deceased looked around, and said, ‘By God, I have got you now,’ or, ‘will get you,’ and threw his hand up to his breast, and I saw him try to pull out a pistol. The pistol seemed to hang, and was about half-way out when I fired. I shot before my horse stopped.

It was in his left hand. Messick was shot in the left hand. He was a left-handed man.” The

article referred to above provides: “When a homicide takes place to prevent murder, maiming, disfiguring, or castration, if the weapons or means used by the party attempting or committing such murder * * * 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.” Eliminate from the

article all that does not apply to the case in hand, and it will read as follows: “When the homicide takes place to prevent murder, if the weapon used by the party attempting or committing such murder is such as would have been calculated to produce death—was a deadly weapon—it shall be presumed that the person using such a weapon designed to kill and murder.” If construed strictly, this would be a remarkable statute.

It could serve no purpose whatever; for, if the proof must establish the fact that the deceased or the adversary of the accused was attempting to commit murder, the presumption of law—that is, that if a deadly weapon is used, it shall be presumed that the party using it designed to kill and murder—would not be of any benefit to the accused.

We understand the statute to mean, that when there is evidence showing with reasonable probability that the adversary of the accused was in the act of murder or attempting to commit murder, and a deadly weapon was used by him, then the law presumes that it was the purpose of the party using the deadly weapon to kill and murder; and the court should submit an hypothetical case to the jury, in substance, that if the jury shall believe from the evidence that the deceased was making an assault on the accused, and that he was using a deadly weapon, then the law presumes, and the jury should presume, that deceased designed to kill and murder defendant.

These observations by the way. The trial court failed to submit the rule contained in

article 571, and counsel excepted specially to the charge for this omission. Whether there was error in this respect was argued before this court by counsel for the State and appellant; counsel for appellant contending that the facts attending the homicide demanded such a charge, and the State contending that they did not, because when deceased was shot by appellant he was not “using” a deadly weapon. The State does not claim that the pistol was not a deadly weapon, but that deceased was not “using” the pistol when shot.

The State concedes that if deceased was using the pistol, then the omission in the charge is reversible error, exception being saved to the omission. The question, therefore, is presented, was deceased at the time he was shot “using” the pistol, within the meaning of

article 571? That he was, we have no doubt, if the testimony of Dr. Williams and appellant was true; and this must be left for the jury to decide. Let us illustrate: A says to B, “By God, I have got you now!” and at the same time throws his hand to his breast, thrusts it into his pocket, seizes a pistol, and draws it partially out of his pocket. He is prevented by bystanders from further use of the pistol. A is indicted for aggravated assault, the aggravation being that the assault was made with a deadly weapon. Will it be contended that A did not commit the assault upon B?

Can it be contended that the assault was not made with the pistol ? And if with the pistol, was not the pistol used in making the assault? As is so well put by counsel for appellant: “We ask the court, at what period of time does the use of the pistol begin? A person draws a pistol, cocks it, presents it, and pulls the trigger. At what stage of the proceeding does he begin to use the pistol? If it is when he pulls the trigger, the statute is absolute—is repealed; and you will have to pass on the case of another man.” Because the court failed to submit the presumption contained in

article 571, the judgment is reversed and the cause remanded. JReversed and remanded. Davidson, J., absent.