# Gunn v. State > Court of Criminal Appeals of Texas · February 22, 1922 · 95 Tex. Crim. 276 URL: https://www.frixlaw.com/law-library/cases/3904523 ## Case - **Full name:** J. N. Gunn v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** February 22, 1922 - **Citations:** 95 Tex. Crim. 276; 252 S.W. 172; 1922 Tex. Crim. App. LEXIS 727 - **Precedential status:** Published - **Opinion:** Dissent by Morrow - **Judges:** Morrow, Lattimore - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3904523 ## Opinion text MORROW, Presiding Judge (dissenting). — After much thought and research my associates have determined that it is questionable whether the evidence is such as calls for a charge on the presumption arising from the use of a deadly weapon; that if under the facts such a charge would have been appropriate, its omission in the instant case was not error authorizing a reversal of the judgment. In forming this conclusion, if I properly comprehend their view, they are of the opinion that taking into account the charge that was given and the facts in hand a reversal should not result for the reason that the omission was not calculated to injure the rights of the appellant and did not militate against a fair and im *300 partial trial. They are of the opinion that if there be error, it is one which would come under Article 743 of the Code of Crim. Procedure. If the question was one of first instance, the logic of the majority opinion would be appealing. The statute declaring that where a deadly weapon is used by the deceased in a homicide case, the legal presumption that it was his intent to slay, has long been a part of the criminal law of the State and has often been construed. This court has frequently held that in a case where the facts come within the purview of the statute, it is the duty of the trial court, upon request of the accused, to instruct the jury in proper terms that if the deceased was using a deadly weapon his intent to slay is presumed as a matter of law, and his intent is not a question of fact. Many illustrative cases are collated by Mr. Branch in his Criminal Laws of Texas, See. 476. Some of- them are discussed and cited in the case of Briscoe v. State, 236 S. W. Rep. 991 , 90 Texas Crim. Rep. 650 ; Lewellen v. State, 236 S. W. Rep. 987 , 90 Texas Crim. Rep., 588 , and in the dissenting opinion written by Judge Davidson in Alexander’s case, 63 Texas Crim. Rep. 139 . In some of the cases cited, there are expressions which, in the opinion of the writer, announce a proposition that is not sound. This is notably true in MeMiehael’s case, 49 Texas Crim. Rep. 425 , where this language is used: “In this connection another question arises. Suppose deceased did not have a pistol, but appellant believed he did have one, and believed he saw one in his hand, would he be entitled to said charge predicated on the appearances of danger? He was evidently entitled to a charge on the appearances of danger, and the court gave Aim such charge; but was he entitled to a charge on the use of a «deadly weapon by deceased and the presumption flowing therefrom? 'We think so.” In nrf opinion the statute has no application to a case in which the deceased was not using a deadly weapon. The belief of the accused that the deceased was doing so or was about to do so, would be cared for in the ordinary charge on self-defense embodying the law of apparent danger. Conscious of the interpretation which this court has continuously made of the statute in question, (Art. 1106, of the Penal Code), the Legislature has not only refrained from repealing it, but in successive revisions has brought it forward unchanged, thus giving the constructon placed upon it by the court the force of legislative adoption. See Lewis v. State, 58 Texas Crim. Rep. 361 , in which the following quotation is taken from Black on interpretation of Laws, page 369: “When the Legislature revises the statutes of the State, after a particular statute has been judicially construed, without changing *301 that statute, it is presumed that the Legislature intended that the same construction should continue to be applied to that statute.” In the opinion written by Judge Ramsey in the Lewis case, supra, there are cited many decisions and text-books supporting the principles stated. In the writer’s opinion, the application of this rule of law to Article 1106 of the Penal Code is manifest, and its repeated reenactment without change in its verbiage and after its construction as indicated above, is conclusive against the right of this court to give it a different interpretation. In the instant ease, the appellant used these expressions touching the immediate incidents of the homicide: “He (deceased) said: ‘By God, he didn’t have to go anywhere, and grabbed his gun, and when he threw it down on me, I grabbed mine and went to shooting.” Appellant said further: “The first thing I saw was my wife falling back with the axe falling back over her head. At that time Hobart had his gun in both hands. I couldn’t stop to take care of my wife, he still had his gun trying to shoot, and I kept after him.” He also used this -language: “I don’t know how many times I shot, he kept backing. He backed out through the dining-room and then on the screened porch and when we got out on the porch he was still backing and he still had that pistol in his hand and it wouldn’t work. He is an expert with a pistol, but he might have got excited. ... I don’t know whether his pistol wouldn’t shoot or not.” In the opinion of the writer, this testimony brings the statute into application, and following the terms of the law as previously construed, stamped with Legislative sanction, it was imperative that the-legal presumption arising from the use of the weapon be given in a charge to the jury upon the request of the accused. For these reasons the motion for rehearing should be granted, the affirmance set aside, and the judgment of the trial court reversed, and the cause remanded'. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3904523. Public record. Not legal advice.