
    ANDERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1911.)
    1. Homicide ("§ 308) — Instructions — Murder in Second Degree — Necessity.
    Defendant and deceased had a fist fight, in which defendant was knocked down twice, but no serious injury was inflicted, or attempted to be inflicted; and several hours later, while defendant was at a dance, deceased came in the door and stood against the facing thereof, carrying a shotgun, with the muzzle on his foot. Defendant saw him, left the room, passing deceased, returned in a few minutes with'a pistol, approached deceased, caught hold of the gun, and shot him. Bela, that defendant was entitled to a charge on murder in the second degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-648; Dec. Dig. § 308.]
    2. Homicide (§ 309) — Instructions—Manslaughter — Necessity.
    On such facts, defendant was entitled likewise to an instruction on manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.]
    
      8. Homicide (§ 300) — Instructions—Self-Defense— Necessity.
    On the facts, defendant, in addition to charges on murder in the second degree and manslaughter, was also entitled to a charge on self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.]
    4. Homicide (§ 300) — Instructions—Self-Defense — Suimticiency of Instructions.
    An instruction on self-defense, given in a trial for murder substantially as defined by the statute, and which concludes by instructing that, “if the weapon used by him, and the manner of its use, were such as was reasonably calculated to produce death or serious bodily harm, then the law presumes that the deceased intended murder, or aimed to inflict serious bodily injury upon defendant,” is not objectionable, though it does not define the words “deadly weapon.”
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.]
    5. Homicide (§ 250) — Sufficiency of Evidence-Manslaughter.
    Evidence, in a prosecution for murder by shooting with a pistol, held sufficient to sustain a conviction of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 250.]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Lee Anderson was convicted of manslaughter, and he appeals.
    Affirmed.
    See, also, 131 S. W. 1124.
    Smith & Blaehshear, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
   PRENDERGAST, J.

On June 17, 1910, the appellant was indicted for the murder of Berry Robinson, by shooting him with a pistol, charged to have occurred on December 24, 1900, was convicted of manslaughter, and his punishment fixed at four years in the penitentiary.

There are no bills of exceptions or charges asked and refused shown by the record.

The facts briefly stated are that some time about the latter part of the evening of December 24, 1909, the deceased got off the train and met the appellant. The deceased was drinking. A little later they met, and after some words between them the appellant accused deceased of not speaking to him when he got off the train; they had a fist fight, in which the deceased knocked the appellant down twice, but no serious injury was inflicted, or attempted to be inflicted. Several hours later the appellant was at a dance and supper, sitting in a room picking a guitar. Several couples were on the floor dancing. The deceased stepped into the door of the room, stood •against the facing thereof, and had in his hand a shotgun, with the muzzle placed on his foot. The appellant saw him, quit picking the guitar, said nothing to- the deceased, walked out of the room through the door, passed the deceased, and was gone some few minutes. After a few minutes, he returned with a pistol in his hand, stepped up beside the deceased, caught hold of the gun which was in deceased’s hand, and shot the deceased in the side, killing him. At the time, the evidence shows, the deceased was doing nothing whatever with the gun, or otherwise, to attack the appellant. The court properly submitted to the Jury a charge on murder in the second degree, manslaughter, and self-defense.

There are only two grounds of the motion for new trial. One is; “The court misdirected the jury as to the law in the charge given the jury in this: That he failed to correctly charge the jury with reference to the law of self-defense, and failed to define the words ‘deadly weapon.’ ” Then, in this ground of the motion for new trial, the appellant contends that the shotgun which the deceased had in his hand was a deadly weapon, and he was attempting to raise, or raised it, in a shooting attitude, and pointed in the direction of appellant, and he saved his life only by grasping the barrel of the gun with one hand and wresting it from him; and further therein contends that the court should have given article 676 of the Penal Gode 1895, in charge to the jury on this subject. The appellant’s contention as to the state of facts is not correct. The evidence all shows that the deceased did not raise or attempt to raise or point the gun in the direction of the appellant, but that he held the stock in one hand, with the muzzle on his foot. Appellant stepped into the door beside the deceased, himself grabbed the gun, and at once shot the deceased in the side, when no attempt was made by him to use the gun. Notwithstanding this, the court did charge correctly on self-defense, and gave in substance, if not literally, the article of the Code which appellant claims he should have given; and, while the court in the charge did not technically define a deadly weapon, he did tell the jury in the charge on self-defense: “And if the weapon used by him, and the manner of its use, were such as was reasonably calculated to produce death or serious bodily harm, then the law presumes that the deceased intended to murder, or aimed to inflict serious bodily injury upon the defendant.” The charge of the court on self-defense was much more favorable to the appellant than he was entitled to.

The other ground of the motion for new trial is that the verdict is contrary to the law and the evidence. Then the motion argues the question that the testimony conclusively showed that the appellant killed the deceased in self-defense. We have briefly stated what the evidence showed on that subject above. The evidence, as a whole, clearly shows that the appellant was at least guilty of manslaughter, of which the jury found him guilty. It would clearly have justified the’ jury to have found him ■guilty of murder in the second degree, and fixed a greater penalty than was given him hy the jury. There is no question but that the appellant has no ground of complaint which shows any reversible error in the •trial of the case.

The judgment is therefore affirmed.  