Carter v. State , 28 Tex. Ct. App. 355 ( 1890 )

Willson, Judge.

Several objections are urged by counsel for defendant to the charge of the court, some of which, in our opinion, are well founded. In the main, however, the charge is an exhaustive and able presentation of the law of the case.

The second' and third errors assigned are as follows:

The court erred in the following paragraph of its charge, to-wit: ‘If you believe from the evidence that the defendant, in the county and State, and' at or about the time alleged in the indictment, made an assault and battery upon John Mouchett, and that he was not justifiable in so doing under any of the instructions which will be hereinafter given you, and if the evidence fails to show that such assault was made with the specific intention on the part of the defendant of taking the life of the said John Mouchett thereby, and that if the death of the said John Mouchett had resulted therefrom, the defendant would have been guilty of murder; and if you further believe from the evidence that by such assault and battery a serious bodily injury was inflicted upon the said John Mouchett, you will find the defendant guilty of aggravated assault and battery, and assess his punishment as herein directed for that offense; because said paragraph requires that the evidence fail to show both the specific intent to kill and that if death had ensued from such assault and battery it would have been murder, before such offense would have been reduced to aggravated assault, whereas the failure to show either would have been sufficient.

“3. The court erred in the following paragraph of its charge, to-wit: ‘Again, if you believe from the evidence that in the county and State, and at or about the time alleged in the indictment, some person or persons other than defendant made an assault and battery upon John Mouchett, and if the evidence fails to show that such assault and battery was made with the intention on the part of such person or persons of taking the life of the said John Mouchett thereby, and that if the death of the said John Mouchett had resulted therefrom, such person or persons would have been guilty of murder, as that offense has been hereinbefore explained to you, etc.; because said paragraph requires that the evidence fail to show both a specific intent to kill and that the act would be murder if death had ensued, before the offense would be reduced to aggravated assault, whereas the failure to show either would be sufficient.

For the reason stated in the assignments we think said paragraphs of the charge are erroneous, and materially so, because calculated to prejudice the rights of the defendant. Under the facts of the case, the jury might have believed that the assault, if it had resulted in death, would have been murder, and yet may have believed that the evidence did not show a specific intent to kill the assaulted party, but although so believing, they could not convict under the charge of an aggravated assault. Murder may be committed although a specific intent to kill the deceased does not exist in the mind of the slayer. If the intent be to inflict upon the person killed serious bodily injury, which may cause his death, the homicide may be murder, although a specific intent to kill may not be shown. Willson’s Crim. Stats., secs. 1039, 1041. But to constitute the offense of an assault with intent to murder there must be a specific intent to kill. An intent to do serious bodily harm is not sufficient, and if the jury believed in this case that the evidence did not .show a specific intent to kill, whatever else they might believe, they could not convict the defendant of that offense, but might have convicted him of a lower grade of assault, and should have been, by the charge, given the discretion of doing so. Willson’s Crim. Stats., sec. 857.

- The fifth assignment of error is as follows: “ The court erred in giving the following charge to the jury, to-wit, ‘If the defendant sought and brought on a conflict with John Mouchett, then he can not avail himself of the law of self-defense, although in such conflict his life or person was endangered,’ without also instructing them as to the law of partial or imperfect self-defense, and without also instructing the jury as to what offense the defendant would be guilty of in the event it appeared from the evidence that the defendant had sought and brought on a conflict with the said Mouchett merely for the purpose of committing a battery upon him, and not with the intention of killing him.”

This assignment must also be held well founded. If the defendant provoked the contest, but without any intention to kill or inflict serious bodily injury, he would not be wholly deprived of the right of self-defense. He might still have an imperfect right of self-defense, which, although not sufficient to justify his act, might reduce the grade of it. Willson’s Crim. Stats., sec. 981. We think the evidence required that the instruction given by the court as to defendant’s provoking the difficulty should have been qualified as above indicated, and that the failure to qualify it was material error.

In other respects than those we have mentioned, we think the charge of the court is unobjectionable, and that there was no error in refusing the special requested instructions.

Because of the errors in the charge which we have discussed, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Hurt, J., absent.