182 S.W. 316 | Tex. Crim. App. | 1916
Appellant was convicted of assault to murder, and his punishment assessed at five years’ confinement in the penitentiary.
The evidence would show that appellant,
Appellant, on cross-examination of the state’s witnesses, endeavored to prove that Zaiontz undertook to use an axe handle, but all the witnesses say that the axe handle was tied to Zaiontz’s saddle, and he made no effort to use it.
Appellant introduced no evidence, except to show a good reputation, and that he had not theretofore been convicted of a 'felony, in an effort to secure a suspension of the sentence.
Appellant having brought on the difficulty between himself and Zaiontz, some saying with a stick drawn, at the time Zaiontz knocked him down, it would be very doubtful if aggravated assault would have been raised if he at that time shot Zaiontz. A man cannot himself raise a difficulty and then have the offense reduced to manslaughter because of the state of his mind, unless he is driven to the extremity of killing to save his own life. Certainly all Zaiontz did in this instance was to resist the attack of appellant with his fists, and at no time sought to use any weapon upon appellant. Appellant tried to get him to come out of the saloon and renew the difficulty. Zaiontz .declines, and appellant leaves, telling him he is going to get his gun and shoot him. He waylays Zaiontz, and while Zaiontz is on his way home with others shoots him at a time when all Zaiontz is doing is dodging behind his horse.
“Not error to define a deadly weapon as a gun used ’within carrying distance, if proof shows that defendant shot the injured party at close range.” Juley v. State, 45 Tex. Cr. R. 391, 76 S. W. 468; Kosmoroski v. State, 59 Tex. Cr. R. 296, 127 S. W. 1056.
The judgment is affirmed.
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