Opinion
No. 16779.
Delivered May 30, 1934.
Murder — Charge.
In prosecution for murder, where the weapon used by defendant was a stick of wood about two feet long and was not per se a "deadly weapon," and defendant testified that he had no intention of killing deceased, but merely struck him for the purpose of punishing him for the whipping deceased had given him, the trial court should have affirmatively instructed the jury to acquit defendant of murder if they entertained a reasonable doubt as to whether he intended to kill deceased.
Appeal from the District Court of Bowie County. Tried below before the Hon. R. H. Harvey, Judge.
Appeal from conviction for murder; penalty, confinement in the penitentiary for five years.
Reversed and remanded.
The opinion states the case.
Otto H. Atchley, of New Boston, for appellant.
Lloyd W. Davidson, States' Attorney, of Austin, for the State.
The offense is murder; the punishment, confinement in the penitentiary for five years.
Appellant and Dick Blocker, deceased, had had a difficulty in which it appears that Blocker had gotten the best of appellant. Sometime after this difficulty, appellant struck Blocker with a piece of wood and inflicted a wound on his head, which resulted in his death. Appellant testified that he hit deceased because he was angry with him for having previously whipped him. He testified, further, that he had no intention to kill deceased.
Appellant timely and properly excepted to the charge of the court for its failure to submit an affirmative instruction to the jury to acquit him of murder if the jury entertained a reasonable doubt as to whether he intended to kill deceased. The weapon used by appellant was a stick of wood about two feet long. Under the decisions of this court, it was not per se a deadly weapon. Briscoe v. State, 56 S.W.2d 458, and authorities cited. The weapon not being a deadly one per se, and appellant having testified, in effect, that he had no intention of killing deceased, but merely struck him for the purpose of punishing him for the whipping deceased had given him, the court should have affirmatively instructed the jury to acquit appellant of murder if they entertained a reasonable doubt as to whether he intended to kill deceased. Briscoe v. State, supra.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.