Cornelius v. State , 54 Tex. Crim. 173 ( 1908 )

Appellant was convicted of manslaughter, and his punishment assessed at five years confinement in the penitentiary.

1. Bill of exceptions No. 3 complains that the State was permitted to prove by Dr. G.T. Vinyard the following: "Q. From the examination you made there what is your best judgment as to the entrance and range of that bullet? Appellant's counsel: We object to that. Let him state the facts and let the jury draw their conclusions. The court: Did he state he passed the probe clear through the entrance to the exit? A. No, sir. I passed it up from the entrance wound; after it got up so far it could have been passed any other way on account of the lung tissue. Q. What was the direction of the track of the bullet? What I want to get at is, what was the range of that bullet from the place where you begun to probe from the entrance wound, with reference to the exit?" Appellant objected on the ground that it was a conclusion. The court: "That is a matter for the jury to pass upon and I will admit the testimony." "A. The range of the bullet from where I begun to probe from the entrance wound was upward and to the right, and was in the direction of the exit wound," to which said last question and answer the defendant objected for the reason, first, that it was but the opinion of the witness on a matter not the subject of expert testimony; second, the witness had shown by his first answer to said question that the direction from whence said bullet came was speculative and uncertain, and had for its object the relative position of the parties; he could only state actual conditions and not leave the impression from the manner and verbiage of his answer as to what his opinion was, as to the relative position of the parties." We see no objection to this testimony. The witness appears to have been a physician. The court does not certify that he was not an expert on gun-shot wounds, and hence the bill to that extent is defective. While it is true, appellant objects to same on the ground that he is not an expert, yet an objection is not a statement of a fact. Furthermore, the testimony under no view point, as we understand it, could be hurtful in this case.

2. Bill of exceptions No. 4 shows that the State placed A.M. Works, Jr., the official stenographer of said court, upon the stand, and after proving by him that he had reported the two former trials of this cause in the District Court of Potter County, and after proving by said witness that he had transcribed the notes of the defendant's testimony given at the first of said trials, and after testifying that such transcription was a correct statement of the testimony of said witness Cornelius, thereupon the witness was permitted to state various things that the defendant testified on a former trial, to all of which appellant objected on the ground that it was not shown that the paper from which the witness was reading had ever been signed by the defendant as a signed statement; that no testimony whatever was offered to show that the defendant had admitted to any person that such question and answer had been asked him and answered by him as stated in said document; and that it was not shown that he had at any time admitted the correctness of said question or answer. The bill is approved with this explanation: "This witness testified on his voir dire examination that he was a competent and experienced stenographer; that he had been the official court reporter for this judicial district for the last two years and was still occupying said position; that he was present and acting as official stenographer and reporter for the district at a former trial of this cause in Amarillo, and heard the defendant testify in his own behalf at said trial; that witness took stenographic notes of the testimony of defendant at said trial, and that he knew he had taken the testimony correctly; that he transcribed his notes of said defendant's testimony correctly and knew that it was a correct statement of defendant's evidence, but as to some of the testimony shown in the bill he had no independent recollection of it." There was no error in admitting the stenographer's notes to be introduced as above pointed out. This question has been decided by this court adversely to appellant's contention. See Casey v. State, 50 Tex. Crim. 392 [50 Tex. Crim. 392]; 17 Texas Ct. Rep., 169, and Stringfellow v. State, 42 Tex.Crim. Rep..

3. Bill of exceptions No. 5 shows that while the witness Mrs. George Highfill, wife of deceased, Frank Harrington and R.D. Wilson, were on the stand, in behalf of the State, the court, over appellant's objection, permitted each of said witnesses to testify that the deceased was an inoffensive quiet man and peaceable citizen, of a kind and inoffensive disposition, to which testimony, on the part of each of said witnesses, the defendant in open court objected for the reason that said testimony was offered for the purpose of proving the character and general reputation of deceased as being a violent, dangerous man, or a man of quiet disposition, when such issue had not at that time nor any other time during the progress of the trial been raised by the defendant, and deceased's character had not been attacked. The court overruled the objection for the reason that he permitted it to go before the jury on the issue of threats alleged to have been made by deceased against the life of defendant as raised by the testimony offered by the defendant. This bill is approved with this explanation: "The defendant had offered testimony of numerous threats made by deceased against the life of defendant, some of which are shown to have been communicated to defendant and some were not. After the defendant had rested his case the State offered the testimony of the above three witnesses in rebuttal, and this evidence was admitted under authority given in article 713 of the Penal Code, and was directly in rebuttal to said evidence of previous threats of deceased." Said article justified the court in the ruling complained of. Arnwine v. State,50 Tex. Crim. 477; 96 S.W. Rep., 4.

4. Bill of exceptions No. 6 shows the following: After the State had introduced the witness Burwell and he had testified, appellant presented the court the following motion: "Now comes the defendant, by his attorneys, and moves the court to exclude from the consideration of the jury the testimony of the witness W.M. Burwell concerning the statements made by defendant to Highfill on the morning of the killing and immediately preceding the killing, for the following reasons, to wit. First. The defendant in this case is on trial for manslaughter only, he having been acquitted of murder, and said testimony does not raise, or tend to raise, or support the charge or issue of manslaughter. Second. Because said testimony raises, and tends to raise, only the issue of murder of the first or second degree only, and not manslaughter, the charge upon which defendant is now upon trial, and same tends to and does prejudice the rights of the defendant before the jury and does not support or tend to support its charge for which he is now upon trial, but does tend to show that if guilty at all, he would be guilty of murder, an offense of which he has already been acquitted by the jury in a former trial of this cause." This bill is wholly defective. It does not state what the witness Burwell testified to. Under the rules of this court we are not permitted to look at a statement of facts unless the bill refers to the statement of facts to complete or make perfect a bill of exceptions. Reasons for objecting to testimony is not stating that said testimony is subject to objections made. In other words, in order for this bill to be complete it will be necessary either for the testimony complained of from the witness Burwell to be embodied in the bill, or for the bill to refer to the testimony of Burwell in the record before us. Neither was done. Therefore, in the shape this bill is presented, there is no error authorizing this court to review said testimony.

5. Bill of exceptions No. 7 complains that the court erred in not excluding the testimony of H.A. McDonald for the same reason urged in the testimony of the witness Burwell, but the bill is defective in the same particular complained of in bill No. 6, in that it does not state what the testimony of the witness McDonald was. Bill of exceptions No. 8 is in the same condition and complains of the failure of the court to exclude the testimony of A.M. Works.

The questions attempted to be covered by appellant's bill of exception, which we hold is defective, is, however, properly raised by bill of exceptions No. 12. This bill complains that the court erred in failing to give the following charge to the jury: "The defendant requests the court to charge the jury to return a verdict for the defendant, and acquit him, for the reason that the testimony does not raise nor tend to raise, does not support nor tend to support the charge of manslaughter against him, he being on trial herein for that offense." Appellant in this case had on a previous trial been acquitted of the two degrees of murder, and upon this trial was convicted of manslaughter, and his insistence, as stated in the bill, is that the evidence showing nothing but murder in the first or second degree, that he is entitled to an acquittal, and cites us to the case of Parker v. State, 22 Texas Crim. App., 105, and Fuller v. State, 30 Texas Crim. App., 559. This question has also been before this court in the case of Turner v. State, 41 Tex.Crim. Rep.; 54 S.W. Rep., 579, and Pickett v. State, 43 Tex.Crim. Rep.; 2 Texas Ct. Rep., 722. Also in other cases. In view of the confusion growing out of the rendition of said opinions we deem it necessary to review the question presented in the light of the Constitution and laws of this State. Section 10 of the Bill of Rights provides that a defendant in all felony cases shall have an indictment preferred against him by a grand jury, which indictment must show the nature and cause of the accusation against him, and he is entitled to a copy thereof, Section 14 of the Bill of Rights provides that "no person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction." Judge Hurt, in the case of Hirshfield v. State, 11 Texas Crim. App., 207, in passing upon the words "same offense" in the last cited article of the Constitution, uses this language: "Under the Constitution no person shall be twice put in jeopardy for the same offense. What is meant by the term ``same offense?' Does it mean the same offense eo nomine, or the same act or acts? Let us consult our Code. From it we learn that an offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed by this Code. ``An act forbidden,' etc. From this we are not to infer that a single act in every case constitutes an offense. These, however, under this definition are considered the act which is forbidden or punished by law. To these acts or omissions the Code, in most of the cases, has given names. This, however, is conventional. To the act constituting larceny under the common law, the Code gives the name of theft. But back to the proposition! The Constitution prohibits placing a citizen twice in jeopardy for the same offense. Is the name given to the act or acts which constitutes the offense to control when we are seeking to determine whether it be the same offense or not, or must we not look to the act or acts, or the omissions prohibited and punished by the Code, in order to determine this question? We must, in determining whether they are the same offense or not, look to the act, acts or omissions; for these and not the name by which they are called or denounced by the Code. We, therefore, conclude that a person shall not be twice put in jeopardy for the same act, acts or omission, which are forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed in the Code." See along the same line Adams v. State, 16 Texas Crim. App., 162. Then under an indictment for murder what is the act, acts or omission that appellant is being tried for? It is the homicide; it is the killing. If he is acquitted of the killing; that is, any and every form of unlawful homicide, by a verdict of the jury, there is a constitutional inhibition against a new trial for said act, omission or offense. In other words, the Constitution does not contemplate that appellant can invoke the same unless he has had a jury to say by a verdict in a court of competent jurisdiction that he is not guilty of any personal violence to another, where he is indicted for murder. In other words, there is no constitutional inhibition against using what is ordinarily denominated murder evidence to convict one of manslaughter. If murder in the first and second degrees and manslaughter are different offenses, within the contemplation of the Constitutlon of this State, then under the first cited clause of the Constitution one could not be tried for murder and convicted for manslaughter, since the Constitution provides that he must have an indictment, which indictment must state the nature and cause of the accusation against him. If murder is a distinct offense within the contemplation of the Constitution, then one could not be legally indicted for murder and tried for manslaughter no more than he could be indicted for burglary and tried for arson. He must have an indictment charging the nature and cause of the accusation against him. The degrees of homicide are not distinct offenses but are merely grades of one common offense, to wit: homicide. Before appellant could ask the charge above quoted, we would have to hold that one could not be indicted for murder and tried for manslaughter. If appellant, as stated, has a jury to return a verdict of not guilty under an indictment for murder or manslaughter, then he can plead this in bar of his subsequent prosecution, for the grade of offense for which he is so indicted, but upon the trial of a case of murder, where the jury returns a manslaughter verdict, and it returns for a new trial by reason of reversal or otherwise, it is a denovo trial as far as the introduction of evidence is concerned. There is a statutory inhibition, however, against the court, upon the subsequent trial, inflicting upon appellant the punishment for the grade of the offense of homicide of which he had been previously acquitted, but there is neither constitutional nor statutory inhibition against using the same evidence to prove the homicide upon the subsequent trial, and the conviction of appellant of any lower grade of homicide than that of which he had been previously acquitted. Article 762 of the Code of Criminal Procedure reads as follows: "If a defendant, prosecuted for an offense which includes within it lesser degrees, be convicted of an offense lower than that for which he is indicted, and a new trial be granted him, or the judgment be arrested for any cause other than the want of jurisdiction, the verdict upon the first trial shall be considered as an acquittal of the higher offense; but he may upon a second trial be convicted of the same offense of which he was before convicted, or any other inferior thereto." This is the only inhibition against a homicide trial in this State, where a new trial has been granted, the trial thereafter being in every instance denovo. Were it not for this statute, every trial for homicide under the Constitution of this State would be a denovo trial regardless of the previous verdict of the jury, since, as we have seen, there is no constitutional inhibition against the same being a denovo trial for every grade of the offense, but the inhibition is simply statutory. It will be seen from reading the above cited article that it only inhibits the penalty for the grade of offense for which he had been acquitted from being imposed in the second trial. If appellant on the first trial is acquitted of murder, how could he be convicted upon a subsequent trial for manslaughter upon evidence that only suggests murder in the first or second degree without using the evidence that was introduced upon the first trial in the subsequent trial? We know in practice that the State insists upon getting the witnesses who are cognizant of the facts; having secured said witnesses, they introduce them on the trial in the first instance. It is left to the judgment of the jury in the first instance to find appellant guilty of either murder in the first or second degree or manslaughter. Then the identical same evidence is alone the proof that the State can adduce upon the second trial, and this statute recognizes that fact, and says that upon the second trial he cannot be punished for the grade of offense of which he has been acquitted, but can be punished for the same or any lower grade of which he has been previously convicted. When a party is indicted for murder under that form of criminal pleading, he can be convicted of any grade of culpable homicide thereunder. This conclusion is fortified by subdivision 9 of article 817 of the Code of Criminal Procedure, which reads as follows: "Where the verdict is contrary to the law and evidence. A verdict is not contrary to the law and evidence, within the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as the offense proved." This statute is in line with the reasons above stated, and precludes any other conclusion than that the evidence in each instance can be used to convict of the lower grade of offense regardless of the previous verdict. If a party cannot get a new trial on the ground that he had been convicted of a lesser grade of offense than he is guilty of, then it follows as night follows day, that you can use murder evidence to convict one of manslaughter. If murder is a distinct offense from manslaughter, and not merely a different grade of homicide, an acquittal of a grade of murder is an acquittal of manslaughter, then, under the Constitution of this State you could not use murder evidence to convict for manslaughter, but they are not different offenses within the contemplation of the Constitution, but, as stated above, simply grades of one common offense, to wit: homicide. Furthermore, the decisions of this State have uniformly enforced the provision of the last cited article, and held that where one is being tried for an offense which contains grades and he is acquitted of the higher grade, and convicted of the lesser one, that he cannot come to this court and ask a reversal of the case on the ground that the evidence does not support the lesser grade. The authorities are so numerous on this question we do not deem it necessary to cite them. If the grades of homicide are different offenses within the contemplation of the Constitution, why cannot appellant complain that he is convicted of a lesser grade than he was charged with by evidence that only proves the higher grade? Certainly, if one was indicted for murder and convicted of disturbing the peace, it would not be any answer to his motion for a new trial to say that he had been punished for a lesser offense than he was guilty of under the evidence. We would promptly reply to that character of motion that he had been convicted of an offense of which he had no indictment against him, and it is only one theory and one theory alone that you can indict a man for murder and convict him of aggravated assault, and that is on the legal and constitutional theory that an indictment for murder includes within its legal scope all grades and character of unlawful violence to the person of another, and the different penalties attached to the different grades is not a reason for saying that there is an inhibition in the statutes or Constitution of this State against using evidence of the higher grade to convict of the lower. Burnett v. State, decided at the present term and not yet reported. We accordingly hold that appellant's charge was not correct in law, and the court did not err in refusing to give same; and we further state that to whatever extent any decisions conflict with the views herein stated, they are hereby overruled.

6. Bill of exceptions No. 9 complains that the court erred in failing to give a charge upon self-defense based upon real and apparent danger. This charge was fully covered by the main charge of the court. The charge of the court appears quite full and is as follows: "8. A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.

"9. If from the evidence you believe the defendant killed the said George Highfill, but further believe that at the time of so doing the deceased had made an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on defendant, and if the weapon used by him and the manner of its use was such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant." In the light of this charge we do not think it was necessary to give appellant's special charge.

7. Appellant further insists the court should have charged on the law of retreat. The evidence in this case does not suggest said issue. It shows that deceased was sitting in appellant's butchershop when appellant went in and offered him a violent insult, which deceased immediately resented, and appellant shot deceased to death. Neither of them left the room. There was no retreat on the part of either evidenced by the record, and the law of retreat, therefore, is not involved in this case.

8. Bill of exceptions No. 10 complains that the court erred in failing to give charge No. 3, which in substance, tells the jury that if appellant provoked the difficulty with the intention to take the life of deceased, he would be guilty of murder, and if they so find they should acquit appellant. We have discussed this question above and there is no merit in same. The bill further complains that the court erred in not charging the jury as follows: "If you believe from the evidence beyond a reasonable doubt that the defendant provoked the contest with the deceased without any intention of killing or doing deceased any serious bodily injury, and that he suddenly and without deliberation did the act of killing, under the immediate influence of sudden passion arising from an adequate cause, as that term is defined in the main charge of the court, the homicide would be manslaughter. On the other hand, however, if the defendant did not provoke the difficulty with George Highfill with the intention of killing him or doing him serious bodily injury, or if you have a reasonable doubt as to whether or not he did, and further believe from the evidence, that defendant shot and killed the said George Highfill to prevent the said Highfill from murdering or inflicting serious bodily injury upon him, the defendant, and not in a sudden transport of passion arising from an adequate cause, then and in either event you will acquit the defendant and say by your verdict not guilty." The latter part of said charge, with reference to self-defense, was covered in the main charge of the court. That portion of the requested charge which presented the issue of manslaughter was pertinent and should have been given, but in view of the verdict in this case it is rendered entirely harmless not to have given same since the verdict of the jury in this case is for manslaughter.

The court gave the jury the following charge on the question of provoking a difficulty: "A person may have a perfect right of self-defense, though he may not be entirely free from blame or wrong in the transaction. If the blamable or wrongful act was not intended to produce the occasion, nor an act which was under the circumstances reasonably calculated to produce the occasion or provoke the difficulty then the right of self-defense would be complete though the act be not blameless. But you are instructed that a party cannot avail himself of a necessity which he has knowingly and willingly brought upon himself. Whenever a party by his own wrongful act produces a condition of things wherein it becomes necessary for his safety that he should take life or do serious bodily harm, then the law imputes to him his own wrong and its consequences to the extent that they may and should be considered in determining the grade of his offense (if any), which but for such acts would never have been occasioned. Now, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant made use of abusive language to and in the presence and hearing of the deceased, George Highfill, at the time of the fatal difficulty, concerning him, the said George Highfill, under circumstances reasonably calculated to provoke a breach of the peace, and that such language was used for the purpose and with the intent, on the part of the defendant, to provoke the deceased to attack him (defendant) and that said language used by defendant, if any, towards the deceased, was calculated to and did provoke the said George Highfill to make an attack upon the defendant, and that it thereby became necessary or was apparently necessary for defendant (viewed from his standpoint), to take the life of said deceased, then and in that case the defendant would not be justified upon the ground of self-defense, in killing said George Highfill. But if you, on the other hand, find that the language used by defendant to and in the presence and hearing of deceased, was not calculated or intended to provoke a breach of the peace then and in such case the defendant's right of self-defense would not in any wise be abridged or lessened."

9. The court did not charge on any issue except manslaughter and self-defense. It is true this charge does not tell the jury of what offense appellant would be guilty if he provoked the difficulty with intent to commit a breach of the peace, but this could not injure appellant since he was only being tried for manslaughter. Now, if the court had given the charge insisted upon by appellant, to wit: that if deceased provoked the difficulty without the intent to kill, he would be guilty of manslaughter, it would have been in substance the same charge that the court did give, since appellant, upon this trial, was only being tried for manslaughter. Furthermore, it would have been an offensive instead of a defensive charge and in the light of the verdict in this case, is rendered entirely harmless since the jury found appellant guilty of manslaughter. To say that appellant could complain that the jury were not charged upon another theory than that which was charged upon, upon which manslaughter could be predicated, is a complaint without merit and is a matter upon which appellant cannot be heard to complain. We have before us this kind of a case: The jury found appellant guilty of manslaughter upon one theory that was presented to the jury by the court. Now, appellant comes to this court and complains that the trial court should have presented another theory of manslaughter and asks this court to reverse the case therefor. The above quoted charge of the court shows that if appellant provoked the difficulty he could not justify on the ground of self-defense. In addition to that, the court gave a complete charge on manslaughter. Now, if the jury had been given the theory complained of, could it be rationally argued that they would have disregarded the theory upon which they convicted him and taken the theory that the court neglected to charge? We think not. But the converse would be the more rational conclusion; that is, appellant would have had a better chance to escape punishment in this case by only presenting the theory that the court did present, than he would have had if appellant's charge had been given. Under article 723 of the Code of Criminal Procedure of this State, we are not authorized to reverse a case unless the error was calculated to injure the rights of appellant and by no process of reasoning can we hold that the omission to charge upon the theory of manslaughter suggested by appellant in his bill of exceptions, was calculated to injure him, but would simply have served to give the jury additional grounds of convicting him of manslaughter, of which offense he was found guilty.

10. The only other question we deem necessary to review is whether or not the issue of provoking a difficulty was suggested by the evidence in this case. On the trial of the case W.M. Burrell was placed upon the stand, and, among other things, testified that he was on the former jury that tried appellant for this homicide. In that trial the defendant testified that somebody, a boy he thinks, came up to his house and told him to come down to the shop; that he put on his overcoat and went down to the shop; that he went in the back door of his shop; he found deceased Highfill sitting on the opposite side of the room on a stool. Deceased had a pocket knife in his hand pecking on the bottom of the stool or whitling. He said deceased spoke to him, and said he was sorry to get him out a day like that and he sick. The language used by the deceased was "I am sorry to drag" or "pull you out a day like this, old man, and you sick, but I have got to have my money," or something to that effect. The language he used was, "Tuck, Old Man, I am sorry to drag you out a morning like this and you sick, but I have got to have my money," or "I want some money." Appellant testified his reply to deceased was that he (deceased) had robbed or stole out his business, and that he could not pay him any money, or had no money for him; something like that. That immediately after the defendant made this statement deceased got up out of his chair or off the stool and started towards him (appellant); that he (appellant) pulled his pistol and shot at him. He said he had his pistol in his right hand overcoat pocket; that he had his hand on his pistol when he walked to the door, or when he stepped to the door, and had his hand on his pistol in his pocket when he used the language he said he used to the deceased. On the trial counsel for the State asked defendant if he thought Highfill would resent what he said to him about robbing and stealing the business out, and he answered that he believed Highfill would resent it. "You asked him whether or not he thought Highfill would resent the remark used as to his robbing or stealing the business out, and defendant answered that he thought Highfill would resent it; and then you asked defendant what he intended to do if Highfill did resent the remark, and he answered that he intended to protect himself if Highfill did resent it. That may not be the exact words, but it is the substance of what he said." This testimony was also reproduced by the stenographer who took defendant's evidence down at the former trial, and the stenographer's notes show substantially the same as above. Under every decision that has ever been rendered in any court, this evidence clearly shows a provoking of the difficulty. Here we are not left to conjecture as to whether words were intended to provoke a difficulty, but appellant himself admits he used the language expecting that it would provoke a difficulty; that he had his pistol in his pocket and his hand on his pistol expecting to use same if deceased did resent the insult offered. It is true that the statutes of this State say no verbal provocation shall justify assault, but we are not discussing that question here. If deceased had been living and had cut the defendant because defendant said he had robbed him, the insult could only be used in mitigation of deceased's punishment, but any words that are calculated to provoke and do provoke a difficulty, and are so intended, will be and are a basis for a charge on provoking a difficulty. The record before us shows that defendant knew it would provoke a difficulty, or at least thought it would; that he used it for that purpose, and had his weapon ready to shoot if it did cause a difficulty.

11. The court gave the following charge on self-defense: "A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.

"If from the evidence you believe that the defendant killed the said George Highfill, but further believe that at the time of so doing the deceased had made an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on defendant, and if the weapon used by him and the manner of its use was such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant."

Appellant complains that the charge is erroneous, because of the following phrase therein: "and the relative strength of the parties and defendant's knowledge of the character and disposition of the deceased," appellant insisting that the record before us does not show the knowledge on the part of the defendant and the character and disposition of the deceased, and that the relative strength of the parties has nothing to do with this case since it was a killing by the use of a firearm. We have held that the strength of parties where firearms are the instruments used to commit the homicide is not a basis for passing upon the guilt or innocence of the parties. But certainly this clause could not have injured appellant in this case. The record does not show the size of the deceased, and the defendant was before the jury, and they could judge of his size, but certainly no juror could form any conclusion from said statement injurious to the rights of appellant in this case, and furthermore, the defendant's knowledge of the character and disposition of deceased is made clearly manifest by this record since they had been partners in the butcher business. The charge is a correct presentation of the law of self-defense; it informs the jury that they must look at the facts from the defendant's standpoint, and that he could defend against an apprehension or expectation or fear of death or serious bodily injury. The charge being ample to protect appellant's rights in this case, it certainly was not error not to give another charge on the question.

There is nothing in this record that requires a reversal of this case, and the judgment is in all things affirmed.

Affirmed.

[Motion for rehearing overruled October 21, 1908, without written opinion. — Reporter.]