141 S.W. 93 | Tex. Crim. App. | 1911
The appellant was indicted for an assault with intent to murder, convicted, and given the lowest penalty.
The difficulty out of which this case grew was over a game of craps. The appellant and Tab, whom appellant was charged with assaulting to kill, were engaged in the game. A dispute thereabouts arose between them. The testimony of the state, in effect, shows that appellant shot directly at Tab with his pistol under such circumstances as to clearly show that he did so with the intent to kill Tab, and submitted, in effect, this theory of the case to the jury.
Among other defenses by the appellant was that the shot from his pistol was an accidental shot, and that he did not shoot in self-defense. Another defense was that he pulled the pistol out of his pocket with the intention of defending himself if it became necessary, he testifying, in effect, that he believed that Tab and two other of the state’s witnesses all got up at the same time, one of them drawing his knife out of the ground where it had been sticking in front of him, and another with his coat on his arm and his hand under his coat, where he thought that witness had some weapon, and that he thought all three of these parties Were about or were in the act of assaulting him, and that he did not shoot at or intend to shoot or kill Tab.
We deem it unnecessary to discuss or decide any of the other questions raised by appellant.
For the errors pointed out, the judgment will be reversed, and the cause remanded.