Fitch v. State , 37 Tex. Crim. 500 ( 1896 )

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of six years, and he appeals to this court. But one question is presented which we desire to notice. To constitute murder of either degree, must the accused intend to kill? When the accused, in the perpetration of a felony, kills another, the intent to kill is not necessary. Where the circumstances attending the homicide show an evil or cruel disposition, or that it was the design or intent of the person to kill, he is deemed guilty of murder or manslaughter, according to the other facts of the case, though the instrument or means used may not in the nature be such as to produce death ordinarily. This case presents no evil or cruel disposition on the part of the accused. This homicide was not committed in the perpetration of any felony. Under this state of the case, to constitute murder or manslaughter, must the party intend to kill? We answer that he must. In passing upon the intention of the accused — that is, whether he intended to kill the deceased or not — the instrument or means by which the homicide was committed must be taken into consideration. If the instrument or means used be not likely to produce death, we are not permitted to presume that death was designed, unless, from the manner in which it was used, the intent to kill evidently appears. But let us suppose that the instrument be one likely to produce death, the jury may infer therefrom the intention to kill; but still it is a question for the jury as to whether the intention to kill existed or not. It does not follow that, in every killing or homicide committed with an instrument likely to produce death, the intention to kill existed. The fact of the intention to kill must be established. This can be done, however, by the character of the instrument or weapon used. If it is likely to produce death, the jury would be warranted in finding an intention to kill; but, as a matter of law, this is not the case. It is still a question of fact for the jury. The instrument used in this case was a stick of wood or piece of rail, about three or four feet long and about two inches in diameter, and weighing three or four pounds. Now, can the court assume that it was a deadly weapon, and from that assumption infer absolutely the intention to kill, and withhold that question from the jury? We think not. We are of opinion that the court should have submitted this question to the jury. This was not done. Counsel for appellant requested instructions bearing upon this question, which were refused. This, we think, was error, for which the judgment must be reversed, and the cause remanded.

Reversed and Remanded.