HARPER, Judge.
The appellant in this ease was indicted by the grand jury of Harrison County, charged with the offense of murder. Upon a trial he was convicted of the offense of murder in the first degree, and his punishment assessed at imprisonment for life.
In the incipiency of a discussion of this case we want to say that we regret very much to disagree with our presiding judge in his opinion in this case, but as we read this record, it presents the most aggravated case of murder that has come under our observation during the time we have been on the bench. The evidence, from the standpoint of the State, shows that in the latter part of June defendant went to the home of Jim Olive, and hollered to him to “hide out;” that he, defendant, had been before the grand jury about Olive having a pistol, when Olive replied that defendant would not have had to do so, if he had not “harped it all over the country.” Defendant called him a liar, and reached for a gun he had with him. Olive struck him over the head with a hoe and knocked defendant to his knees as he reached for his gun. While on his knees he again made an effort to get his gun, when Olive again struck him with the hoe handle, and took the gun again away from him, pointing it at him, when defendant begged. Olive then took all the shells out of the gun and gave it back to defendant and told him to go home. Defendant then asked for some water, and Olive sent for the water, and washed all the blood off of defendant, and again told him to go on hoipe. At this time deceased, F. T. Wagnon, drove up, and defendant and deceased spoke, and defendant asked deceased to take him home in the buggy. Deceased replied his horse was tired. Defendant then shook hands with Olive and asked him and his wife to pardon him for his conduct, but declined to shake hands with Wagnon. He started on home, and after getting about one hundred yards from the house he called Olive. Getting no answer, he cursed him. He then called Wagnon, cursed him, and told Wagnon “he (defendant) had been on his trail for a month, and would stay on it until he got there.” Defendant in his testimony says he was drunk and does not know what took place that evening, except that he got several severe blows. As defendant walked off cursing, it was suggested that he would come back and give trouble. Olive sent for a neighbor to come and stay with him, and A. M. Chadwick did come to Olive’s house, and Mrs. Olive, her son, and Chadwick all testify that that night, while the family was sitting on the porch, defendant did come back and hollered, and fired his gun, some saying the shots struck the house. Chadwick testified that he heard defendant cursing, and heard him say he was on deceased(s damn warm trail, and would not sleep much until he got him; that deceased was a d—n s—n of a b—h. They went in the house and Olive got his gun and went out and his dog bayed the man doing the shooting in a clump of bushes,
when the man shot the dog and killed it. Several shots were exchanged that night, but no one injured. Defendant filed a complaint against Olive and Olive filed complaints against defendant. The feeling was very bitter, and threats pro and con are testified to by witnesses. Olive and Wagnon were brothers-in-law, and were witnesses in the cases against defendant, while defendant was a witness against Olive. They all carried guns with them wherever they went away from home. On the day of the killing they were all under bond to attend court at Marshall. Defendant says he saw Olive and Wag-non pass his house on the way to Marshall that morning, and he did not go because he was afraid they would have trouble. That he went over to Castleberry and Bodden’s mill that morning and talked to Mr. Bass and stayed around there some time. That he did not ’phone the sheriff at this time, because he had not fully decided not to go to Marshall; that about 4:30 that evening he started again to go back to the mill, carrying with him a Winchester and a shotgun for protection, to telephone the sheriff why he had not come to court; that on his way to the mill, when about one-fourth or one-half mile from home, he saw deceased and Olive come driving towards home, and they had their guns, and he stepped out of the road to a tree about fifteen or twenty feet from the road, set his Winchester against the tree, slipped the safety on his shotgun and waited for them to pass, not intending to shoot them if they made no attempt to harm him, but to be in position to defend himself; that before they got quite even with him they turned their heads towards him and Wagnon started to raise his gun, when he shot five times in rapid succession; Wagnon fell soon after he began to shoot; as Olive did not fall at the first five shots, he loaded his gun and fired again, when Olive fell back in the wagon; he thought they were going to kill him, and he shot to protect himself. On cross-examination he said he could not see what Olive was doing, as Wagnon was between him and Olive. A. M. Chadwick, a witness for the State, testified that he went to town along with Wagnon and Olive that day; that they started home first, but he overtook them. They were riding in a wagon, sitting on a spring seat, sitting side by side; that a rain came up and they all stopped in a house. After the rain ceased they all started on, talking. Nothing was said about defendant; that just before they got to Cypress bottom they reached down in the wagon and got their guns, Wagnon taking his in his hands and Olive putting his down in front of him. Olive and Wagnon had to pass defendant’s home in going to their home; that he, Chadwick, dropped behind them; that they had traveled about 350 or 375 yards when he heard the shooting; that he had seen them do nothing, and that he had not seen defendant until after the shooting was over. That he rode by and saw defendant standing about by a tree with a gun in his hands; that.he could only see' from his waist up, as there was a brush pile between defendant and the road that he
and Olive and Wagnon were traveling. Defendant said he did not know why he tried to hide when he saw Chadwick; that he did not know Chadwick was there until the shooting was over. Defendant then went on to the mill, he says, to telephone the sheriff. A witness says when he got there he said he had “two bucks out in the road.” This defendant denied, but says he said that he thought the “little trouble was over.” Dr. Allen testified he examined the bodies of both Wagnon and Olive. That Wagnon was lying on his back, with his feet over the seat, with his gun grasped in his hand; that Olive’s body was in the wagon, with one foot over the seat and his gun was under the seat. Wagnon had eleven shot in his head, sixteen shot in his shoulder and neck and one through his nose. The shots entered from the left side. Olive was shot much in the same way; there were seven shot in the left side of the head, one in the back of the head and the balance just over the ear. The shot entered from the left side. There were shot in Olive’s left shoulder, and from his waist up. The wounds in the head of both of them were instantly fatal. The wounds in the body were fatal, but not immediately fatal.
Deputy Sheriff Luke Cole testified he went to the scene of the killing and says: “That oak tree was, I suppose, twenty-four inches in diameter; they were, I suppose, twelve or fifteen feet from the road. There was a tree top there, pine top, and I should say it was something like thirty-five, maybe forty, feet long—that tree top was lying very near parallel with the road, and it lay right against the oak tree. Part of the top struck the oak tree and fell back and the other part lay within two or three feet of the oak tree. The main body of the top extended towards Marshall and was four and one-half or five feet off the ground. I did make an examination around the root of that tree. Well, I found where there had been parties walking around and standing around there and I found seven shells there. I did see some ambeer and some whittlings at the root of the tree over behind the tree, where there had been three little twigs bent, and then back in the center of the top, maybe twelve or fifteen feet, was another beat-out place, and there I found some cigarette stubs and burnt matches. These bent twigs were under the main body of the tree and made a blind, and these cigarette stubs and matches were right behind them limbs. As I first went out from behind the top I found one red shell about three feet from the butt of the tree top and about the center I found three red shells that had short brass bases and in the top about three feet from the standing tree I found three shells with a large brass base. There was nothing peculiar about those shells any more than they had the appearance of being reloaded and sewed across the ends with threads. These are the shells that I found. I found those three up next to the oak tree, which are the ones I called with large brass base, and those three I found in the center of the top, and this one here that had been marked or crumpled, I found at the foot of the log towards the bridge. Bight against the tree, which is presented
on the map by the letter ‘A/ I found evidences of the ambeer and Avhittling, and in the center of the pine top represented by letter 'B’ I found the shell at the butt of the log, and then I came on up here and found three there about the center of the pine tops, and then I came on up to the oak three and found three there—the shells and tAvo or three cigarette stubs and burnt matches, I found in the center of the tree top.” He further testified: “I do not knovr that a man standing by that tree could be seen from the road by a man in the road. The limbs of.that fallen pine and some bushes vrould prevent him from being seen from the road east of there. I do not think he could have been seen.”
It Avas shoAvn that Wagnon and Olive did not fire a shot. There Avas one cartridge in the barrel of Wagnon’s gun, but none in the barrel of Olive’s gun. Both guns had shells in the magazine.
Cole’s testimony Avas in substance corroborated by Ellis Johnson, Avho Avas there when the investigation Avas made.
Defendant’s Avitnesses deny that the ground Avas tramped around, and claim that a man could be seen from the road; they also denied seeing the shavings there, and the matches and cigarette stubbs. Defendant says he had just Avalked out there; that he cut no shavings and did not smoke there, saying: “I just stood there Avith my gun, but it Avas not cocked. To use an automatic gun, you can just throAv the safety off at the time you get ready to shoot, and I Avas standing there with the safety oíf, so if I needed to shoot I Avas ready.” (Page 99, statement of facts.) This Avas just before the shooting commenced.
There are no bills of exception in the record. Ho errors claimed in admitting or rejecting testimony. Ho special charges Avere asked, but the charge of the court is assailed in the motion for neAV trial, and every paragraph thereof is criticized. In this state of the record, under article 723 of the Code of Criminal Procedure, admitting'there Avas some immaterial error, it Avould not be cause for reversal. In the case of Godwin v. State, 39 Texas Crim. Rep., 404, this court, speaking through Judge Henderson, says:
“Appellant contends that the court committed an error in giving a charge on provoldng the difficulty by deceased. We are inclined to agree Avith appellant that such a charge Avas not called for by the evidence in this case, and we are further of the opinion that the charge as given was radically wrong. But the question here is, Avas the error of a material character, for under the Act of the TAventyFifth Legislature a charge is not only required to be erroneous, but must be calculated to injure the rights of the defendant. From the record there is no question that appellant, when the altercation occurred over the game of cards, invited deceased to engage with him in mortal combat—invited him from the game of cards, Avliere they were disputing, to one side, stating that he wanted to talk with him. The deceased told him he would go if he would give him a
fair break. He told him he would, and defendant then had both pistols, his own and that of the deceased. After they had started, deceased asked for his pistol, and defendant gave it to him. After they had retired about thirty or forty feet from the blanket where they were playing cards, they confronted each other, engaged in a wordy altercation, each having his pistol in his hand. The witnesses say that deceased made the first demonstration; that is, he raised his pistol from his hip and cocked it. Defendant’s witness, however, stated that all the time while deceased was cocking his pistol defendant had his pistol in his hand, presented and pointed at deceased’s stomach. So that the iteration by the witnesses that deceased made the first demonstration is mere twaddle, and a play upon words. When deceased made that demonstration, appellant had already invited him, to mortal combat, and he then had his pistol drawn and presented at a vital point of his body. There is strong evidence to show that during all this time appellant knew that deceased’s pistol was not loaded. But concede that he did not know this fact, still there is no pretense of self-defense in this case. If the court had charged on mutual combat it would have been entirely correct. But does it follow, therefore, that a charge on provoking the difficulty was. calculated to impair the rights of appellant? We think not. An invitation to engage in mortal combat and provoking a difficulty may not be one and the same thing, but in neither does the right of self-defense exist; and there would have been no error had the court refused to charge on self-defense altogether.” Again, in Wright v. The State, 40 Texas Crim. Rep., 45, speaking through Presiding Judge Davidson, this court says:
“In this case, however,' we do not believe the error was of such a character as to prejudice the rights of the defendants, from the fact that the evidence shows that if the parties were guilty at all they were all guilty as principals, being actually present and participating in the original taking. The State’s testimony shows that the four mentioned parties wore bodily actually present and participated in the taking of the hog, and carried it from the place of the killing home, some two and one-half or three miles. Under the recent Act of the Legislature, the error in the charge must be calculated to injure the rights of the accused, before this court would be authorized to reverse the judgment. Acts 25th Leg., p. 17. And not only must the error be calculated to injure the rights of the defendant, but it must be excepted to at the time of the trial or on motion for new trial. This matter was brought forward in the motion for a new trial; but inasmuch as, under the peculiar facts of this case, it was not calculated to injure the rights of the defendants we would not be authorized to reverse the judgment under the Act of the Legislature above cited.”
In this case if the defendant is guilty at all, he is guilty of murder in the first degree. In his own testimony he admits he saw deceased
coining up the road; that he stepped to the side of the road fifteen or twenty feet, set his Winchester down by the tree, and with his shotgun in his hands “just stood there with my gun. You can just throw the safety off at the time you get ready to shoot, and I was standing there with the safety off so if I needed to shoot I was ready;” and he did shoot, and the State’s witness Cole would indicate that he had been standing there tramping around behind a “blind” for some time, chewing, smoking and waiting, with a Winchester rifle and an automatic shotgun loaded with buckshot, and nowhere in the record is there evidence, if the killing was unlawful, to reduce it below murder of the first degree. If the Styte v. Goodwin, supra, is to be adhered to, if defendant was standing there with the safety on his automatic gun slipped, ready to shoot, even if Wagnon or Olive had made a demonstration, he would not be acting in self-defense, for he was ready, willing and had placed himself in position for the combat to begin. (Gilleland v. State, 44 Texas, 356; Crist v. State, 21 Texas Crim. App., 361.) "But we will not rest our opinion here, for under the facts of this case, if the court committed any error, it was error in behalf of defendant.
The court charged on manslaughter, and in his charge stated:
“Manslaughter is voluntary homicide committed under the immediate influence of sudden passion, arising from adequate cause, but neither justified nor excused by law.
“By the expression, under immediate influence of sudden passion, is meant: 1st. The provocation must arise at the time of the commission of the offense and that the passion is not the result of a former provocation.
“2d. The act must- be directly caused by the passion arising out of the provocation; it is not enough that the mind is merely agitated by the passion arising from some other provocation, or a provocation given by some other person than the party killed.
“3d. The passion intended is either of the emotions of the mind, known as anger, rage, sudden resentment or terror, rendering it incapable of cool reflection.
“By the term adequate cause is meant such as would commonly produce a degree of anger, rage, sudden resentment or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection.
“Any condition or circumstance which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection, whether accompanied by bodily pain or not is adequate cause.
“Where there are several causes to" arouse passion, although one of them might not constitute adequate cause, yet all the causes combined might be sufficient to do so.
“In this case as to whether the homicide was committed under the immediate influence of sudden passion and as to whether there was
adequate cause for such passion are questions of fact for the decision of this jury.
“In order to reduce a voluntary homicide to the grade of manslaughter it is necessary not only that adequate cause existed to produce the state of mind referred to, that is, of anger, rage, sudden resentment or terror sufficient to render it incapable of cool reflection, but also that such state of mind did actually exist at the time of the commission of the offense. Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is the duty of the jury in determining the adequacy of the provocation, if any, to consider in connection therewith, all the facts and circumstances in evidence in the case, and if you find that by reason thereof the defendant’s mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfied the requirements of the law, and so in this case, you will consider all the facts and circumstances in evidence in determining the condition of defendant’s mind at the time of the killing, and the adequacy of the case, if any, producing such condition.
“How, if you believe from the evidence beyond a reasonable doubt, that at the time and place stated in the indictment, the defendant and the deceased unexpectedly and suddenly met, and that on account of the acts and conduct of deceased taking place at the time, if any, has been shown, defendant’s mind was aroused to such a degree of passion known as anger, rage, sudden resentment or terror as to render defendant’s mind incapable of cool reflection and that defendant’s mind was thereby rendered incapable of cool reflection, and that the acts and conduct of deceased at said time, if any, was such as would commonly produce such a degree of anger, rage, sudden resentment or terror in a person of ordinary temper sufficient to render his mind incapable of cool reflection, and that defendant under these circumstances shot and killed deceased with a gun and that such gun was a deadly weapon not in self-defense as explained elsewhere in this charge, then find defendant guilty of manslaughter and assess his punishment at confinement in the penitentiary for any time you see proper, not less than two years nor more than five years.
“In passing on the condition of defendant’s mind at the time of the killing you will consider the relation of the deceased and defendant to each other, their former difficulties, if any, and all the facts and circumstances in evidence, viewing the same from the standpoint of the defendant.”
Complaint is made of that part of the charge wherein it says: “And that the acts and conduct of deceased at the time,” etc., and it is claimed that the court should have charged “that the acts and conduct of deceased or Jim Olive or either or both of them,” etc. How, what were the acts and conduct of Jim Olive? Chadwick says
that about 350 yards from the scene of the killing as he drove into Cypress bottom, Olive picked up Ms gun and laid it down in front of him. It was under Olive and the seat after he was killed. Defendant in his cross-examination says he could not tell what Olive was doing. That Wagnon was between him and Olive; “they were sitting side by side on the spring seat, and Wagnon was the near man to me and was sitting just like I am, and I could not see how Olive had his head, because Wagnon was between me and him. . . . Olive could not have been facing me when I shot the first shot, because Bud Wagnon was between me and him, and if Mr. Olive turned in his seat I don’t know it.” Ho one says one single word was passed by anyone at the time of the shooting. Defendant admits he could not see Olive and there was no conduct or act on the part of Olive testified to at the time defendant began to shoot, and there was no evidence upon which the court could have based such a charge, and the only evidence that Wagnon did anything is where defendant says Wagnon turned his head and started to raise his gun. It is true that defendant in direct examination spoke of “them” and “they,” doing so and so, but on cross-examination, separating them, Wagnon was the only man he claimed to see do any act, or so conduct himself that he thought it was necessary for him to shoot. This court has too often held that where there is no basis in the evidence it is not error for the court to fail to charge on an issue not presented by the evidence. In the case of Wolfforth v. State, 31 Texas Crim. Rep., 387, this court, speaking through Judge Davidson, says: “It is too well settled in this State to be questioned that when the law of the case has been, given in charge it is sufficient. This applies as well to manslaughter as other grades of homicide. The causes which reduce a killing from murder to manslaughter must be operative in the mind of the slayer at the time of the homicide, in order to bring the killing within the purview of our statutes relating to that offense. The passion must also be shown, and the charge should be confined to the cause or causes which are shown to have created the passion. An instruction upon matters not shown by the evidence is not required and should not be given.” In this case Jim Olive is not shown in the testimony, even from defendant’s standpoint alone, to have done any act or said a word at the time he commenced to shoot, and there was no occasion for the court to have given such charge. In addition to this, under the facts of this case, we hold there was no necessity for the court to have submitted the issue of manslaughter, and the charge as given by the court, was more favorable to defendant than he had a right to expect. When we read the definition of manslaughter, as is correctly defined in the charge herein copied, there is nothing in the evidence to have produced that state of mind that would reduce an unlawful killing to manslaughter. Ho "adequate cause” is testified to. Defendant does not show terror or rage, but he testifies he stepped to the side of the road, set one gun
down, put the other one in condition to fire instantly and waited his time to shoot if he deemed it necessary, showing deliberation and coolness in his every act. He does not claim they said one word, but says Wagnon “turned- and raised his gun.” If the jury believed this, under some circumstances it might present a case of acting in self-defense, but it has never been held in this State that such conduct would reduce an unlawful killing to manslaughter. In Eggleston v. The State, 59 Texas Crim. Rep., 542, 128 S. W. Rep., 1108, this court says:
“Complaint is made in the motion for new trial and before this court that in submitting the issue of manslaughter to the jury the court did not submit all the law with regard to manslaughter, and in the charge that was given the court omitted some of the elements of manslaughter, and for that reason, together with the failure of the court to give the requested instructions asked by appellant with regard to manslaughter, error prejudicial to the appellant was committed by the trial court. A most careful review of the - testimony in the case demonstrates to our minds that there is no manslaughter in this case. The theory of the State was that the defendant had become incensed at the appearance of the deceased upon the ground and his advice to the negroes to stop playing, and regarded same as an interference with his purposes on that night, and fearing that the deceased might have the parties arrested, he concluded to provoke a difficulty with the deceased, for the purpose of killing him, and the evidence on the part of the State shows a killing without any excuse whatever. While on the part of the defendant, if his story is to be believed, it is a clear case of self-defense. It seems to be the impression with some members of the bar that in all cases where self-defense arises that necessarily manslaughter is in the case, but this is not a correct interpretation of the law. It would be wrong for the court to submit an issue not raised by the testimony, and as manslaughter could not, from any possible view of the facts as detailed in the trial of this case, be suggested, we think manslaughter is not in the case. Therefore, if manslaughter is not in the case, any error of the trial court in its charge on this subject could not avail the appellant, as said charge in submitting this issue was favorable to the appellant, and would give the jury an opportunity to find the appellant guilty of a lower grade of homicide than murder in the second degree.”
Defendant also complains of the charge on self-defense. The court instructed .the jury: “Homicide is permitted by law and subject to no punishment when inflicted for the purpose of preventing the offense of murder, or for the purpose of preventing the infliction of serious bodily injury when the killing takes place under the following circumstances:
“1st. It must reasonably appear by the acts or the words coupled with the acts of the person killed that it was the purpose and inten
tion of such person to commit the offense of murder or inflict such injury.
“2d. And the killing must take place while the person killed was in the act of committing said offense or inflicting such injury or after some act or demonstration done by him showing evidently an intent to commit such offense or inflict such injury.
“3d. And it is not essential that there should be any actual or real danger to the life or person of the party killing, if there be an appearance of danger caused by the acts or demonstrations of the party killed or by words coupled with the acts or demonstrations of such party which produce in the mind of the defendant, viewed from his standpoint alone a reasonable expectation or fear of death or some serious bodily injury to himself.
“However, the party whose person is unlawfully assailed is not bound to retreat to avoid the necessity of killing his assailants.
“Applying the foregoing instructions to the facts of this case upon the issue now submitted to you, you are charged that the defendant would be justified in killing the deceased if it is shown to have been done to prevent the deceased from murdering him or from inflicting serious bodily injury on him, or if it is shown that at the very time of the killing or immediately preceding the killing the deceased had made or was in the act of making some hostile demonstration toward the defendant such as would produce in his mind a reasonable fear or expectation of death or some serious bodily injury; but in that case to justify the killing it must reasonably appear from the acts of the deceased that he intended to murder, or inflict some serious bodily injury upon the defendant, and the killing must have taken place while the deceased was in the act of committing such offense or inflicting such injury or after some act done by him showing evidently an intention to commit such offense or injury.
“Therefore, if you shall believe from the evidence that the defendant at the time of the homicide believed his life was in danger or serious bodily injury would be inflicted upon him, such fear being produced by hostile acts on the part of the deceased, if any, and that at the time he fired the fatal shot it reasonably appeared to him, from all the circumstances of the case, viewed from the standpoint of the defendant alone, that the deceased was about to shoot him, and if you so believe you will acquit the defendant.
“Or if you believe from the evidence that at the time the defendant shot and killed the deceased, that the deceased was in the act of making an unlawful attack upon the defendant with a gun and it reasonably appeared to defendant from his standpoint by the acts of the deceased that it was the purpose and intent of the deceased to shoot him, and which unlawful act of the deceased produced in the mind of the defendant, viewed from his standpoint at the time, a reasonable expectation or fear of death or of some serious bodily
injury and that acting under such fear or expectation so produced lie shot and killed the deceased, then such killing would be in self-defense, and if you so believe, you will acquit the defendant. Or if the jury shall believe from the evidence that the deceased was making an unlawful attack on the defendant, or was doing any act, or made any demonstration which produced in defendant’s mind viewed from his standpoint at the time a reasonable expectation or fear of death arising from such acts or demonstrations of deceased, he was justified in so doing and in law it would make no difference whether the danger to defendant’s life or person was real or imaginary, if it had the appearance to defendant of being real and which appearance must be viewed from the standpoint of defendant at the time alone and from no other standpoint.
“In every case in determining whether the defendant acted from a reasonable expectation or fear of death or serious bodily injury from the deceased, it is proper for the jury to take into consideration the relation of the parties, relative size and strength of the parties, and previous conduct, declarations or threats, if any, of the deceased, and all other circumstances, if any, in the case.”
This charge is applicable to the evidence in this case. The only one who testifies on this point is defendant. He says not a word was spoken, but Wagnon commenced to turn his head towards him, at the same time raising the gun, and he (defendant) fired. This charge presented this, theory. But in addition to this, as there were threats testified to in the case, the court further charged the jury:
“Where a defendant accused of murder seeks to justify himself on the ground of threats against 1ns own life he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification' for the ’ offense unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threats so made.
“In passing upon the issue of threats the jury will consider* and determine the same from the standpoint of the appearances to defendant and the effect upon his mind at the time of the killing and not in the light of subsequent events, if any, if the facts or circumstances suggested to defendant’s mind that he was in danger of death or serious bodily injury and he so believed, then in law he would not be guilty of the homicide, but would be justifiable in the killing.
“So, if the jury shall believe from the evidence that previous to the time of the killing the deceased had made threats to take the life of defendant and that defendant knew of such threats, if any, and that at the time of such killing, or just preceding the killing the deceased did any act, however slight, or spoke any words which the defendant from his standpoint believed either manifested or evidenced an intention on the part of the deceased to carry his threats into execution, and acting under such circumstances the
defendant shot and killed deceased, then the defendant would be justified in the act and you will acquit him.”
The defendant says that the court should have presented the theory that “if deceased or Jim Olive,” etc., instead of deceased alone. As hereinbefore stated, while discussing the charge on manslaughter, no one shows that Jim Olive was doing any act at the time the shooting began, defendant saying he did not see him do anything, and no one claimed to even see Olive at that time. But out of the abundance of precaution, after giving the above charges, the court charged the jury: “If the jury believe from the evidence that it reasonably appeared to the defendant at the time of the killing that the deceased, F. T., or Bud, Wagnon, and Jim Olive, were acting together, viewed from the standpoint of the defendant, and that Bud Wagnon, or Jim Olive, made a demonstration to shoot the defendant with a gun, then the jury are instructed that the defendant had a right to shoot and to continue to shoot until all danger as it reasonably appeared to defendant was passed, and in this connection you are charged that in no event was the defendant bound to retreat in order to avoid the necessity of • killing the deceased.”
Isolated paragraphs of a charge should not be taken and criticised if the charge, taken as a whole, is not subject to the criticism.
The defendant complains of the following charge: “If from the evidence you believe beyond a reasonable doubt that the defendant is guilty of some degree of murder, but have a reasonable doubt as to whether the killing was committed upon express or implied malice, then you must give the defendant the benefit of the doubt, and in such case, if you find defendant guilty, it could not be of a higher grade of offense than murder in the second degree.” Defendant's complaint is, “Because, if the jury from the evidence, had a reasonable doubt in their minds that the killing was not committed upon express or implied malice, then the defendant could not be guilty of murder and the grade of homicide, if any, was bound to be less than murder in the second degree.” If this was all the charge, defendant might have ground for his complaint, but the court further told the jury in the next paragraph, “If from the evidence you believe beyond a reasonable doubt that defendant is guilty of some grade of culpable homicide, but have a reasonable doubt whether the offense, if any, is murder in the second degree or manslaughter, you must give him the benefit of the doubt, and if you find him guilty, it could not be of a higher grade of offense than manslaughter.” And then added: “If from the evidence you have a reasonable doubt that defendant is guilty of manslaughter, find him not guilty.”
These charges have been so often approved by this court, and it has been held to be the duty of the trial court to give in charge the law applicable to reasonable doubt as to the degrees of homicide, it seems useless to cite authorities, but see Powell v. State, 28 Texas Crim. App., 393, and authorities cited.
The, court also give in charge the law of reasonable doubt and presumption of innocence as applicable to the whole case.
The errors complaining of the definition of malice and implied malice and the application thereof, are without merit as applicable to the evidence in this case. McGrath v. State, 35 Texas Crim. Rep., 413.
Appellant also complains that the court erred in charging the jury: “In every case in determining whether the defendant acted from a reasonable expectation or fear of death or serious bodily injury from the deceased, it is proper for the jury to take into consideration the relation of the parties, relative size and strength of the parties and previous conduct, declarations' or threats, if any, of the deceased, and all other circumstances in the case.” Defendant says there was no evidence as to the relative size of the parties. This charge was given in connection with the law of self-defense, and when taken in that connection with the other charges given, is favorable to defendant as a whole in instructing them that they must take into consideration all circumstances in the case in passing on whether the defendant had the right to shoot and kill.
There is also assigned as error the failure of the court to charge article 676 of the Penal Code. When we read the entire charge, the substance of this article is manifest all the way through it, and the jury is told that if it appeared to defendant from any cause that his life was in danger he had a right to shoot. The court instructed the jury: “A deadly weapon is one which in the manner used' is likely to produce death or serious bodily injury.” . . . And “that if the deceased was in the act of making an unlawful attack upon defendant with a gun, etc., he should be acquitted.” And throughout the entire charge the jury is informed that if deceased was using his gun in a way calculated to lead defendant to believe his life was in danger he was justified in killing deceased. Defendant asked no special instruction, did not reserve any exception to the charge of the court, but complains of this omission for the first time in his motion for a new trial. In Martin v. State, 25 Texas Crim. App., 557, Judge Willson, speaking for the court, says:
“In this case the bills of exception to the charge of the court were not reserved in the manner required. After the jury had retired from the box, counsel for defendant stated' to the court that he desired to except to the charge of the court. Thereupon the court asked the counsel to state the grounds of exception; that the court was ready to supply any omission, or correct any error which might be in the charge, if pointed out. Counsel did not comply with this request of the court, and did not specify exceptions to the charge until after the return of the verdict. We are not, therefore, called upon to consider the exceptions to the charge, and decline to do so, there being no fundamental error pointed out, or perceived by us, in the charge.”
This has always been the rule in this court so far as we can find,
unless it is shown that the omission was injurious to the defendant. In this ease no injury could result to the defendant, viewed in the light of the entire "charge. No exception was reserved to the charge or any part thereof. The first complaint was in motion for new trial, and after verdict has been rendered.
The evidence in this case, to our minds, presents but two theories, one is that the defendant is guilty of murder in the first degree, or was justified in his acts. If defendant hid behind the blind fifteen or twenty feet from the road, and lay in wait, watching for deceased, and shot him as he was driving by, it was murder in the first degree. This was the contention of the State, and there was evidence on which to base it, and the jury so found. There is no evidence' making it a lesser degree of homicide. The defendant’s theory was that Wagnon attempted to kill Mm, or from Ms conduct, taking into consideration what he had previously heard, he (defendant) believed his life was in danger, and, therefore, he was justified in killing. Judge Wheeler, in the case of O’Connell v. State, 18 Texas, 343, says:
“The error assigned in the charge of the court is, in substance, that it does not distinguish and define the degrees of murder. But 'it must be observed that the mere omission to give instructions is not error. The court is not bound in any case to give instructions not asked for by the party. If the charge of the court was not satisfactory, it was the right of the defendant or his counsel to ask such instructions as he thought proper. If he omitted to ask particular instructions, he can not assign as error the omission of the court to give them. It is no objection to the charge of the court, that it supposes the state of fact which the evidence showed really to exist, and deduced, the legal conclusion applicable to such a state of fact. This is precisely what every charge should do. That is the design and purpose of giving instructions to the jury; it is to inform them respecting the law applicable to the particular case in hand; and the more exactly the charge is adapted to the very case, the more likely will the jury be to arrive at a correct conclusion in the application of the law to the fact. Instruction beyond what the facts call for can never subserve any beneficial purpose, and may mislead. The charge should be framed and is to be considered in reference to the facts of the case. And we are of opinion that there was nothing in the evidence in this case to call for an exposition of the law upon the degrees of murder. There really is no conflict in the'testimony. The witnesses who testify to having seen the original assault, accord perfectly in their statements in every material particular; and those whose attention was attracted by the noise, and who witnessed only what transpired after the assault was begun, coincide in their statements, substantially in all that is material, with the other witnesses, as to what transpired afterwards. If the witnesses were entitled to credit—and of that the jury were to judge—it unquestionably was a premeditated and deliberate homicide, committed under circumstances
which did not admit of any extenuation, mitigation or excuse; and consequently, was murder in the first degree; under the evidence it could not be of a less degree; and' there was, therefore, no occasion to instruct the jury respecting the degree of murder. The case of Shoter v. The People, determined by the Court of Appeals of Hew York, may be referred to as affording a very forcible practical illustration of this principle, if, indeed, it be not too obvious to need illustration. The prisoner was convicted of murder, and sought a reversal of the judgment for error in the charge of the court. ' But although there was error in the charge, yet as it was upon a doctrine of the law of homicide, on which the evidence in the case did not call for instructions, the Court of Appeals held it no ground for reversing the judgment.”
This has always been the law from that day, the early judicial history of Texas, to today. We do not think under the facts there was any error in the charge of the court, but if error there be, it is a case in which the State’s case shows lying in wait and a killing upon premeditated malice, and there is no error in the charge on murder in the first degree. If the defendant’s statement is true, he stood there with his automatic gun with the safety slipped ready' to shoot, striking the deceased in the side of the head and shoulder, remarking after he 'left "the little trouble is over,” or, “I left two bucks down there in the road.” However, the court presented the theory of self-defense in a very favorable light to defendant, and the jury found the theory of the State to be correct.
The judgment is affirmed.
Affirmed.