
    TABOR v. STATE.
    (Court of Criminal Appeals of Texas.
    March 1, 1911.)
    1. Criminal Law (§ 1059) — Appeal—Exceptions— Sufficiency.
    An exception to the court’s charge, not stating the ground thereof, cannot be considered.
    [Ed.' Note. — Por other cases, see Criminal Law-Cent. Dig. § 2671; Dec. Dig. § 1059.]
    2. Homicide (§ 300) — Instructions — Self-Defense.
    Where defendant testified that he believed that deceased had a knife or something, and raised his arm and started towards defendant, and that he thereupon shot deceased, an instruction that if, immediately before the homicide,1' deceased advanced upon defendant, and from the manner and character of the said advance, and by words used by deceased, defendant had reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, he shot and killed deceased, he should be acquitted, and if deceased in fact had no weapon at such time, and defendant was in truth in no danger from an attack, or if the jury had reasonable doubt as to these facts, 'they should acquit,- sufficiently covered every contingency raised by the evidence.
    LEd. Note. — For other cases, see Homicide, Cent. Dig. §§. 614h632; Dee. Dig. § 300.]
    3. Homicide (§ 250) — Sufficiencx of Evidence— Manslaughteb.
    Evidence held sufficient to support a conviction for manslaughter.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. §250. ]'
    Appeal from District Court,. Travis County; George Calhoun, Judge. ■
    Napoleon Tabor was convicted of manslaughter, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NTJMBER. in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes-
    
   DAVIDSON, P. J.

This conviction was for manslaughter. The evidence discloses that, in a room where dancing was in progress, appellant made his appearance and approached deceased. A .conversation ensued, which did not seem to be fully understood by the bystanders. It is claimed by appellant that deceased caught him in the collar and drew a hnife on him. There is contradiction, or a want of harmony in the testimony in regard to the exhibition of a knife. Be that as it may, appellant immediately left, went to his home, a.mile and a half or two miles distant, secured a gun, and returned. He approached the place of the dance at a rapid gait on horseback, and immediately upon reaching the place he saw the deceased and fired upon him, blowing off the top of his head. Appellant’s theory was that, as he approached the deceased, deceased raised his arm, and he thought he had a knife in his hand, and threatened to kill him, and thereupon he fired. He also states that he secured his gun with the purpose of returning to the party to defend, himself against any attack that might be made on him by deceased. The above statement is the most favorable one to be deduced from the facts in appellant’s behalf.

1. The ■ court gave a charge to the jury with reference to the .law .of murder in both degrees, manslaughter, and self-defense. Murder in both degrees was eliminated by the verdict, -the jury having convicted of manslaughter, and their verdict finds adversely to appellant on the issue of self-defense.

2. There is a bill of exception in the record which recites that appellant objected to the charge, because it failed to instruct the jury directly upon all the law applicable to the case, in that it omitted to charge the defendant’s whole defense. It is also recited in the bill that the deceased had, some 30 minutes prior to the homicide, run defendant away from the dance, and that defendant went home to get his gun to;return to the dance; that he might have a social good time, and not to harm the deceased; that, returning to said dance for that purpose alone, just as defendant arrived on his return, the deceased made an assault upon him, when he shot and killed him; that said charge failed and omitted to charge the jury that defendant had the right to go home and get his gun and return to the dance for the protection from any future assault that deceased might make upon him. This bill is qualified by the judge as follows: “The only exception taken was as follows: When the, charge was read by the court, the defendant’s attorney stated that he excepted to the ch'arge, but did not state in what respect he excepted to the charge, and did not request any special charge on any issue.” Under the provisions-of article 723 of the Code of Criminal Procedure, as this matter is presented, we cannot consider this bill of exception, or, rather, the criticism of the charge mentioned in the bill. • The exception was too general. In-fact, the attorney states no ground of exception ; but, even if this exception be considered, we are of opinion there was no error. The court charged fully with reference to-the law of self-defense, and we think favorably to the accused.

3. Applying the law of self-de'fense, the' court instructed the jury that -if they should-find beyond a reasonable doubt, from the evidence, viewing it from the standpoint of the-defendant at the time of the killing, that immediately before the homicide the deceased advanced upon' defendant, and from the-manner and character of said advance, and-by words used by deceased at the time, appellant had a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or-fear, and while such reasonable expectation, or fear continued, he shot and killed the deceased, he should be acquitted; and if they should further believe from the evidence that deceased in fact had no weapon at such, time, and that defendant was in truth in no-danger from an attack by deceased, or if they have a reasonable doubt as to these-facts, they should acquit. We are of opinion that this is a favorable charge, and covered every contingency raised by appellant’s evidence. It was a very dark night, so much so that at a few feet distance it would have-been impossible to have seen a knife in the-hands of deceased, if he had one. But ap-pllant testified that he believed that deceased had the knife or something, as he raised’, his arm and started towards him, and that-he thereupon shot. This we think was as-favorable to appellant as the facts required' or demanded.

4. The only remaining question urged by appellant is that the evidence does not support the conviction. We are of opinion that it does. In fact, the verdict of the jury may be considered, in the light of the evidence, as, a mild one..

The judgment is affirmed.  