Warren v. State ( 1886 )

Willson, Judge.

I. After charging the law relating to an assault with intent to murder, the court charged as follows: “ The jury are further charged, however, if they believe from the evidence that the defendant Warren did, at or about the time and place alleged in the indictment, assault the said Brooks with a knife under circumstances not amounting to an intent to murder as hereinbefore explained, you will, if you so believe from the evidence, find the defendant guilty of an aggravated assault, and assess the punishment therefor.” This charge was promptly excepted to at the time of the trial. We are of the opinion that said charge is erroneous.

As was said by this court in passing upon a similar charge in Harris v. The State, 2 Texas Court of Appeals, 84, “ it assumes against the legal presumption of innocence in all criminal cases, that the defendant must be guilty of one or the other offenses named, * * * and it invades the province of the jury, and instructs them to find him guilty, at any rate, of the lesser grade of offense, and was, in that respect, a direct violation of that portion of the statute which prohibits the judge from expressing any opinion as to the weight of evidence.” Furthermore, this charge does not correctly state the law. An assault with a knife is not necessarily an aggravated assault, and yet this charge declares such an assault, without any qualification whatever, to be an aggravated assault, and leaves the jury no discretion but to find the defendant guilty of one or the other of the offenses named in the charge.

Opinion delivered November 24, 1886.

II. In charging upon self defense, the court confines the right to protection against a deadly assault. What is meant by a deadly assault is no where in the charge explained to the jury. Nor do we find this character of assault named in the statute prescribing the rules governing self defense. There was evidence calling for a charge upon self defense, and the law of that issue, as laid down by the statute and the decisions thereon, should have been fully explained to the jury. This duty, in our opinion, was not discharged by the court, and the charge given upon such issue was not the correct law. (Penal Code, Arts. 570, 572, 573, 574; Short v. The State, 15 Texas Ct. App., 370; Cartwright v. The State, 16 Texas Ct. App., 473; Hunnicutt v. The State, 20 Texas Ct. App., 632.) The charge of the court upon self defense was promptly excepted to by defendant at the time of the trial.

III. The third special charge requested by defendant, and refused, was, we think, correct, and was applicable to the facts of the case. It was error to refuse it, and the error was promptly excepted to by the defendant.

Becausé the court erred in its charge, and in refusing special charge number three requested by defendant, the judgment is reversed and the cause is remanded.

Reversed and remanded.