33 S.W. 968 | Tex. Crim. App. | 1896
The appellant in this case was tried under an indictment charging her with an assault with intent to murder, was convicted of said offense, and her punishment assessed at two years' confinement in the penitentiary; and from the judgment and sentence of the lower court, she prosecutes this appeal. It is contended by counsel for appellant, that the court should have instructed the jury more fully and explicitly on the subject of manslaughter, and consequently aggravated assault and battery; that in the first difficulty between the prosecutrix and the appellant the evidence shows a sufficient provocation to arouse the passions of the appellant to such an extent that if death had ensued it would have been manslaughter, and, therefore, in this case, death not ensuing, aggravated assault and battery. From a half to three-fourths of an hour after the first difficulty, the assault for which appellant has been convicted was made. If the appellant was an aggressor, or entered into the first fight willingly, under the facts of this case, could she rely upon the passions aroused in the first difficulty? Under certain circumstances, this may be done. What are they? If, in the first difficulty, there was inflicted upon the appellant great bodily injury, by means of weapons or other instruments of violence, or by great superiority of personal strength, and she had killed the deceased at the time, she would have been guilty of manslaughter, though she was the aggressor or entered into the fight willingly; provided, she did not do so with the intent to kill. See Penal Code, Art., 597, sub. div. 2. In this case there *386 was no great bodily injury inflicted upon the appellant. It is evident that she was either the aggressor or entered into the first difficulty willingly, and it makes no difference, in law, whether she be the aggressor or whether it was a mutual combat — the principle is the same. She cannot rely upon manslaughter, unless great bodily injury is inflicted upon her. Let us suppose that the appellant, after having entered into upon fight willingly, had succeeded, when she reached for the knife (which was in her stocking), in killing the prosecutrix. There being no great bodily injury inflicted upon her, and she being the aggressor, or having willingly entered into the fight, she would have been guilty of murder. If, therefore, she could not have relied upon manslaughter in the first instance, if death had ensued, with greater reason would she be deprived of the right to rely upon the provocation and passions aroused in the first difficulty, in order to reduce the homicide if death had ensued from the last assault. As a corollary to this proposition, we would say, if there was no legal provocation arising from the first difficulty, the doctrine of "cooling time" does not apply. What we have said disposes of the application for a continuance, because the testimony of the absent witnesses relates to what transpired in the original difficulty, and is not materially at variance with the testimony in the record. The judgment is affirmed.
Affirmed.