
    ANDERSON v. STATE.
    (No. 10349.)
    Court of Criminal Appeals of Texas.
    Jan. 5, 1927.
    Rehearing Denied March 16, 1927.
    1. Homicide &wkey;>340(4) — One convicted only of aggravated assault cannot complain because court defined murder and submitted assault with intent to murder to jury.'
    Where one charged with assault with intent to murder was convicted only of aggravated assault, he cannot complain because the court defined murder in its charge and submitted the issue of assault with intent to murder to the jury.
    2. Homicide <§=> 190(7) — Uncommunicated threats in homicide trial, when defendant pleads self-defense, can be considered only to determine who was the aggressor.
    The only purpose for which uncommunicat-ed threats may be admitted in homicide trial, where defendant pleads self-defense, is for determining who' was the aggressor in the difiS-culty.
    3. Criminal law &wkey;>829 (I) — Refusal of court to give special charges held no error, where main charge contains their substance.
    Refusal of court to give special charges, which were given in substance almost literally in court’s main charge, held no error.
    4. Homicide &wkey;sll7 — Requested instruction that one fearing attack by another might prepare, and on meeting other might stand his ground, held incorrect.
    Failure to instruct that, if defendant on trial for assault with intent to murder believed deceased would attack her, she had right to prepare herself, and, if she met deceased and reasonably expected attack or assault, she might stand her ground, held no error, because not a correct proposition of law.
    Commissioners’ Decision.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Dora Anderson was convicted of aggravated assault, and she appeals.
    Affirmed.
    Umphres, hiood & Clayton, of Amarillo, for appellant.
    ' Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BETHEA, J.

The appellant was charged in the district court of Potter county with the offense of assault to murder; she was tried and convicted of an aggravated assault, and her punishment assessed at a fine of $25 and. confinement -for one year in jail.

There is with the record what purports to be a statement of facts, but it is not approved by the trial judge. It has no approval whatever upon it. Of course this court cannot consider it for any purpose, and there are no questions raised which 'can be considered in the absence of a statement of facts.

The judgment is affirmed.

PER CURIAM. The foregoing opinion by the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court '

On Motion for Rehearing.

Appellant, indicted in the district court for the offense of assault with intent to murder, was convicted of aggravated assault, and her punishment assessed at a fine of $25 and confinement of one year in jail.

On January 5, 1927, this case was affirmed for the reason that the statement of facts had not been approved by the trial judge. The record having been satisfactorily corrected, the case will now be considered in the light of all the record.

There are six bills of exception in the record which we will consider in their order.

Bill of exception No. 1 is a repetition of the appellant’s objections and exceptions to the court’s charge. Appellant’s first objection and exception to the main charge complains because the court defined murder and submitted assault with intent to murder to the jury. The appellant was convicted of aggravated assault, and hence is not in a position to complain.

Appellant’s exceptions and objections to the court’s main charge, Nos. 2 and 3, present no error for the reason that there is nothing in the record discussing or indicating that the court gave to the jury any oral instructions. .

Objections to the court’s main charge Nos. 4, 5, and 6 are not tenable) for-the reason that, if the court committed any error in this respect, it was in favor of appellant, and also for the reason that an inspection of paragraph 13 of the court’s main charge discloses that the court did not tell the jury that uncommunicated threats are not admissible for any purpose. A further inspection of paragraph 14 of the court’s main charge discloses that the court instructed the jury fully that, if it appeared to appellant that Anna Richardson, acting either alone or jointly with her husband, Fritz Richardson, was doing some act that manifested an intention to carry such threats into execution, her right of self-defense would be complete.

Exceptions and objections 8 and 9 complain of the main charge of the court, because it does not give an affirmative charge on the law of self-defense, and because it charges that it is incumbent upon appellant to reasonably expect immediate death or serious bodily injury before he has the right to act in self-defense. Paragraph 12 of the coui-t’s main charge fully, ably, and affirmatively charged on the law of self-defense, and is not subject to the criticism made.

Objection and exception 10 complains of paragraph 14 of the court’s main charge, contending that it denies the appellant the right to have uncommunicated threats considered by the jury. An inspection of the charge discloses that said paragraph 14 does instruct the jury that uneommunicated threats may be considered by them for the purpose of determining who was the aggressor in the difficulty. As we view it, this is the only purpose for which said testimony could have been considered by the jury under the law. Branch’s Penal Code, § 2079, p. 1170; McMillan v. State, 65 Tex. Cr. R. 319, 143 S. W. 1174; Baxter v. State, 76 Tex. Cr. R. 504, 175 S. W. 1069; Kirklin v. State, 73 Tex. Cr. R. 251, 164 S. W. 1016.

Bills of exception Nos. 2 and 3 complain of the refusal of the court to give special charges, which are given in substance and almost literally in the court’s main charge.

Bill of exception No. 4 complains of the refusal of the court to instruct the.jury by special charge that, if the appellant had reason to believe the deceased would attack her, she had a right to prepare herself for such attack and go about her business, and if she did meet deceased, and reasonably apprehended that the latter was about to attack her, or that deceased or her husband, Fritz Richardson, was about to assault her with a deadly weapon, she had a right to stand her ground, and would be justified in so doing. The learned trial judge committed no error in refusing to give said special charge, for the reason that the same is not a correct proposition of law.

The record presenting no error, the motion for rehearing is overruled.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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