*1 Believing original properly disposed was case of on submission, appellant’s rehearing motion for overruled.
Overruled. Yarborough J. W. State.
No. 17575. Delivered June states the case. Perkins, Lubbock, B. ap- Mel T. James and Tom both of for pellant. Attorney,
Lloyd Davidson, Austin, for the State. Judge. CHRISTIAN, The offense is assault with intent murder; punishment, penitentiary confinement for years. seven testified, County,
B.W. sheriff of Dickens in sub- stance, Having been advised that carrying purpose he went to a for him. He him for told he wanted search pistol. Appellant immediately drew his Running building, in pellant ap- the side. the corner of hip. At another shot struck him in the this which juncture, appellant. Ap- witness pellant cripple appellant. stumbled fell. Witness shot he and the sheriff behind *2 all sheriff said: “What’s the the corner here;" that going replied that on he that’s been
this hell it; “By anything about that said: not he did know God, stopped;” asked the sheriff what he was it that he I want grabbed it; by going him the arm that the to about sheriff do hand, “By God, you saying, I will show what am with his left nothing him; do;” going about to was said leaving get away; the that as he was tried to he whirled and fell; him; him, pursued stumbled and that he sheriff shot get away; he that he could trying saw that he was to him, going away to kill sheriff was not the shots; shooting, six and started sheriff; at him that he was intend to kill the not any killing him; intention keep that he did not have to resisting arrest. of charged self-defense, but overruled on
The court in- objection failure to an for its embrace to the lant’s 1223, quote covering provisions P. C. We of struction provisions the homicide takes “When of said article castration, murder, maiming, disfiguring prevent or place to attempting party commit- weapon means ting murder, disfiguring maiming, or castration are such such result, produce it to be is would have calculated to been using designed to inflict the presumed person them so testimony clearly injury.” Appellant’s an attack with showed It been a in the statute. has of the nature described of raises the issue held this court that where the evidence deceased, weapon by it a is an absolute use of courts, presumption de- imperative juries, that the well as 1223, injury P. ceased mentioned in intended inflict the C., further, provisions be that the of the article must 814; (2d) State, jury. to the Gaither v. 3 S. W. State, 451, (2d) cited. Strickel v. and authorities 33 S. W. applies law of also to cases self-defense cases of homicide Code, assault with intent Annotated Penal to murder. Branch’s 1654; State, been App., Sec. It has v. 5 Texas Edwards necessary give prosecutions held for assault 1059, W., State, Cooper with intent to murder. v. 85 S. See State, W., v. Castle 209 S. judgment remanded. is reversed and the cause Lattimore, Judge, dissents. and remanded.
Reversed .179 Judge Presiding HAWKINS, MORROW, impera the record the reversal is that under ignored. many precedents are overruled or There tive unless appellant’s testimony injured question but that from is no using 1223, it. Art. P. party and was was armed with C., statutory presumption in favor cir accused’s under the therein which accused derives no benefit cumstances stated addi proper instruction. In unless the is advised of Christian, Judge opinion by tion the authorities cited State, Rep., 164, 112 we cite: Holland Texas Crim. 15 S. v. 626; State, (2d) Rep., 508, 262 v. Carter 97 Texas Crim. W., 642, W., 79; State, Rep., S. 952; Mason v. Crim. 228 Texas S. (2d)
Bailey State, Texas Crim. 17 S. W. *3 LATTIMORE, (dissenting). 1223, P. C. is —Art. quoted Judge Christian, opinion for the refusal incorprate court, in the same of the this case is reversed. approve I cannot I the reversal under the facts and law as Arthur, understand Mr. same. The facts show that Sheriff Macon, appellant eye-witnesses, Dilllon and Mrs. —swore at pistol, before Mr. Arthur his a 45 twice appellant. drew Colts, pistol by appellant The used a 25 automatic. Four witnesses who heard the swore pistol the smaller fired first. Mr. Arthur appellant testified that he took garage talking from where he was in order to search him for a pistol, thing publicly he never did such a if it could be —that avoided, they and that appellant when around there he told he would gun, whereupon have to shake him down for a pistol lant drew his and fired at him a number of times before witness drew appellant. his and shot at
that after the garage, sheriff took him around the the latter out witness, his and shot twice at and he then drew and shot only eye six times the sheriff. wit- ness beside introduced for the defense testified that he saw building, they Mr. Arthur turned the corner things happened
and that three at once. He saw Mr. Arthur reach back toward his at the time same shots, he heard appellant disappeared. said there He were no seconds, reaching two three back and were at the same time.
Upon these facts court told the every person right against had the to defend real and himself standpoint, and that danger from his as viewed
apparent standpoint appeared Arthur had made appellant’s upon producing de an attack to make or was about apprehension of death or serious reasonable fendant’s mind a expectation bodily injury, that under such reasonable Arthur, acquitted. There was no he should be fear controversy character of the over the pistol. no There was a 45 caliber Mr. which was it he shot testimony he drew contradiction of his the first appellant. only to who did issue was as at shooting. gotten no appellant could have these facts Under 1223, supra, charge covering giving more given. forbidden than from the charge, in the for errors P. to reverse cases C. C. Ap injure the accused. unless we think same calculated case similar plication statute has been of this State, 121 Texas Crim. one before us. See Escobar re My Brethren entertain the view agree being with approved. Not able versal them, should be respectfully dissent. 9, OCTOBER *4 The State. Melvin Wilson v. February 6, Delivered No. 17155. Rehearing May 29, Granted Rehearing
Appellant’s 9, 1935. Denied October