No. 3237. | Tex. Crim. App. | Mar 8, 1905
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty years.
We will discuss the errors assigned in the order in which they are stated in appellant's brief. The first complaint is, that the court erred in not charging upon the right of defendant to defend himself against deceased and one Allen, claiming that the testimony shows that both parties were making an assault upon appellant at the time of the fatal shot. After a very careful review of the testimony we do not think this contention is correct. Allen had run away from the scene of the homicide at the time the shot was fired, according to the testimony of appellant himself; and certainly could not have been in the attitude of making an assault upon appellant, while fleeing from the scene of the homicide.
Appellant's second insistence is that the court erred in not charging on the law of manslaughter. From the State's testimony the issue of manslaughter is not presented. Appellant's testimony makes out a case of perfect self-defense; while the State's testimony shows an unprovoked killing upon grossly inadequate cause: in fact no cause at all.
Appellant also criticises the charge of the court on self-defense. The charge taken as a whole is correct. It tells the jury in substance that appellant could defend against real or apparent danger, viewed from his standpoint.
The fourth insistence of appellant is that the verdict of the jury is not supported by the evidence. We believe the evidence amply warrants the finding of the jury. No error appearing the judgment is affirmed.
Affirmed.
Henderson, Judge, absent.
[Motion for rehearing overruled without written opinion. — Reporter.] *7