
    IRVING v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    1. Criminal Law (§ 364) — Evidence—Res Gestas.
    On a trial for assaulting with a pistol, with intent to murder, a man who was paying attentions to a woman to whom accused was attached, evidence that in the fight, immediately after the shooting, accused struck the woman with his fist and attempted to strike her with a chair was admissible as a part of the res gesta, and as throwing light on his state of mind and intention.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818; Dec. Dig. § 364.]
    2. Homicide (§ 166) — Evidence—Showing Motive.
    On a trial for assault with intent to murder, evidence that a woman, to whom the prosecuting witness was paying attentions, although she had a husband, was not living with him, but was living with her uncle, with whom the prosecuting witness boarded, and that accused was going to see her at the time, was admissible on the question of motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    3. Criminal Law {§ 829) — Instructions— Cure by Other Instructions.
    It was not error to refuse a special charge which was fully embraced in the charge given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    4. Homicide (§§ 300, 309) — Instructions— Conformity to Evidence.
    On a trial for assault with intent to murder, special charges as to self-defense and manslaughter, if the shooting had resulted in the killing of the prosecuting witness, were properly refused, where the evidence did not raise those questions.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Di; [§ 300, 309.]
    Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.
    Wash Irving was convicted of an assault with intent to murder, and he appeals.
    Affirmed.
    Ingraham & Hodges, of Nacogdoches, for appellant C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted of an assault with intent to murder Cal Sanders on February 29, 1912. His penalty was fixed at two years in the penitentiary.

The evidence was amply sufficient to show: That for about a year before the assault is charged to have occurred on February 29, 1912, appellant had been attached to a negro woman. That Cal Sanders had recently also begun to pay attentions to the woman, which incensed appellant. Cal Sanders had been boarding for some time with Clark Whit-taker, said woman’s uncle, and recently before the assault the woman, who had been living elsewhere before, had then moved to and was also living with said Whittaker. On the night of February 28th appellant went to Whittaker’s house and stayed all night. Sanders slept in an adjoining room, Appellant slept in the same room in which the woman slept, on a bed on the floor. The woman slept on a bed in the southwest corner of the room; Whittaker and his wife on a bed in the southeast corner of the room. During the night the woman’s child was sick, and she was up with it two or three times, and it was crying during the night and created considerable disturbance. The next morning about daylight Cal Sanders came into the room where the woman was (she theD being up with the child about the fire) to make a fire. Appellant was still in bed. Sanders complained to the woman, and did some cursing or ugly talk in an ordinary tone about the “kid’s” keeping up so much fuss during the night as to prevent him from sleeping, and stated, in substance, that the next time it occurred he was going to’ break out of there, or break somebody out of there, or make somebody break out of there — some such language. He continued to make the fire, having procured wood from the gallery for that purpose. While he was making a fire, appellant got up, slipped on his pants, and went over to the head of Whittaker’s bed and procured a gun. The gun was not loaded, though there were shells in the magazine thereof. He worked the gun so -as to put one of the shells into the barrel ready for shooting. About this time the woman called out to Sanders, in effect, to look out; that “Wash [appellant] is about to shoot you.” Just then the. appellant did shoot at Sanders, missing his head only a few inches; the ball striking a clock and the wall just above Sanders’ head. Whittaker, hearing and seeing that appellant had a gun, had just gotten out of bed, and immediately after the gun fired — not before — he grabbed appellant around the arms, and after struggling with him for the possession of the gun succeeded in getting it from him. Immediately , afterwards or during the scuffle appellant struck the woman with his fist and attempted to strike her with a chair. Sanders and appellant then began fighting with their fists and clenching. They were soon separated. Appellant claimed that he did not shoot at Sanders, but ; that-the gun went off accidentally when Whittaker seized him and attempted to take the gun from him. A witness, Davis, swore that on Saturday evening before this shooting occurred the following Wednesday night that he had a talk with appellant, wherein he was “deviling” him about Sanders having taken said woman away from him, and swore that at that time appellant stated to him that Sanders had done him a wrong about the woman, and he intended to kill him. Some of the witnesses testified that immediately before the shooting appellant again reiterated and stated to Sanders, just before or at the time' he shot at him, that he intended to kill him.' The evidence did not raise self-defense- by appellant; nor did it raise the question of manslaughter, if a killing had occurred.

The court did not err in admitting the testimony to the effect that appellant, in the fight immediately after the shooting, struck the woman with his fist and attempted to strike her with a chair. That was a part of the res gestee of the transaction and threw some light on appellant’s state of mind at the time, of what his intention was with reference to killing Sanders. Neither did the court err in admitting the testimony showing that said woman, although she had a husband, was not living with him, but that she was then living at her uncle’s (Whit-taker’s), where said Sanders boarded, nor that testimony going to show that appellant was going to see her at the time; for all this tended to prove motive on the part of appellant for the assault by him upon Sanders.

The court gave a full and correct charge, submitting the case on the evidence that was adduced, and required the jury to believe, beyond a reasonable doubt, that appellant shot at and towards Sanders with a gun within carrying distance, with malice aforethought, and with the specific intention at the time of killing said Sanders, before they could find him guilty of an assault with intent to murder. And told them that, unless they so found, to acquit appellant. Besides, he charged the burden of proof on the state, and reasonable doubt in favor of appellant. On the subject of the accidental discharge of the gun, he charged: “If 'you believe the gun was fired at or towards Cal Sanders, but j'ou further believe, or have a reasonable doubt as to whether or not such is the fact, that the discharge of the gun was accidental, the result of interference of Clark Whittaker and without purpose or design of defendant, or that it was discharged without a specific intent on part of defendant then to kill Sanders, you will find the defendant not guilty.” The court did not, therefore, err in refusing to give appellant’s special charge requested on that subject; for, as stated by -the court in the refusal thereof, it was fully embraced in the charge of the court.

As stated above, the evidence did not raise the question of self-defense on the part of appellant in the shooting, and it did not raise the question of manslaughter, if the shooting had resulted in the killing of Sanders. Therefore the court did not err in refusing to give appellant’s special charge on those subjects, even if they were raised in' such a way as to require this court to pass upon those questions.

There being no reversible error pointed out in the trial of the case, the judgment will be affirmed.  