Ward v. State
Decision Date | 16 March 1892 |
Citation | 18 S.W. 793 |
Parties | WARD v. STATE. |
Court | Texas Court of Appeals |
Appeal from district court, Red River county; E. D. McCLELLAN, Judge.
James Ward was convicted of murder, and appeals. Reversed.
M. L. Sims and N. A. Shaw, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.
This is a conviction for murder of the second degree, the penalty being fixed at 25 years in the penitentiary. We will state substantially the facts attending the homicide, for the purpose of presenting a question in regard to which counsel contend the trial court erred in failing to give in charge to the jury article 571, Pen. Code.
Mrs. Sarah Messick, (widow of deceased:) The witnesses Norri, Hutchinson, and others testified that deceased had a pistol on his person. Dr. Williams: James Ward said: The article referred to above provides: "When a homicide takes place to prevent murder, maiming, disfiguring, or castration, if the weapons or means used by the party attempting or committing such murder, * * * are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." Eliminate from the article all that does not apply to the case in hand, and it will read as follows: "When the homicide takes place to prevent murder, if the weapon used by the party attempting or committing such murder is such as would have been calculated to produce death, — was a deadly weapon, — it shall be presumed that the person using such a weapon designed to kill and murder." If construed strictly, this...
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