
    McANTHONY v. STATE.
    (No. 3467.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    Homicide ®=»301 — Instructions — Defense oe Another.
    In a prosecution for homicide, where it was the theory of the defendants that deceased drew his pistol first and fired the first shot, intending to shoot defendant or another, charges which stated that if the jury believed that the defendant, not in defense of himself, unlawfully and with malice killed deceased, they should convict, but that if they believed that defendant killed deceased, who had first shot at defendant, or was about to kill another, or it so appeared to defendant, and that the defendant killed deceased to prevent the killing or infliction of serious injury upon the other, the killing would be lawful, sufficiently stated the law as to the defense of another as justification for the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 624, 633; Dec. Dig. <©=>301.]
    Appeal from District Court, Burleson County ; Ed R. Sinks, Judge.
    Will Me Anthony was convicted of murder, and he aijpeals.
    Affirmed.
    J. R. Heslep, of Caldwell, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, and given five years in the penitentiary. »

There were two questions raised: The first was an exception to the charge, properly taken and reserved,' that in the fourth paragraph the court failed to tell the jury that the defendant would have the right to shoot and kill the deceased in defense of another, as well as in the defense of himself, as the evidence showed. The second ground alleges the insufficiency of the evidence to support the conviction.

The fourth paragraph of the charge, to which exception is reserved, reads as follows:

“If you believe from the evidence, beyond a reasonable doubt, that the defendant, Will Mc-Antliony, with a pistol, and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death, or serious bodily injury, with intent to kill, did unlawfully and with implied malice shoot .and thereby kill said Eugene McKinney, as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the penitentiary for any period,” etc.

Had the charge stopped at this point, it would have been clearly insufficient and reversible; but the court gave the following charge, which is paragraph 0:

“If you believe from the evidence that the defendant, Will McAnthony, did, with a pistol, shoot and thereby kill the said Eugene McKinney, and you further believe from the evidence that the said Eugene McKinney did first, with a pistol, shoot at the defendant, or if you believe from the evidence that the said Eugene McKinney was about to kill and murder Neis Dillard, or inflict upon him serious bodily injury, or that it so appeared to the defendant, and that the defendant did then shoot the said Eugene McKinney to prevent the killing or the infliction of serious bodily injury upon the said Neis Dillard by the said Eugene McKinney, then you are charged that in either case his act in so killing the said Eugene McKinney would be lawful, and he would not be required to retreat in order to avoid the necessity or the apparent necessity of shooting the said Eugene McKinney, and if you so find you will return a verdict of not guilty, and in passing upon this matter you must do so from the defendant’s standpoint at the time, as it appeared to him.”

We are of opinion that these two charges sufficiently submit the issue of self-defense in favor of the defendant as to the act of McKinney in trying to shoot him, or shooting at him, as well as the apparent purpose or real purpose of shooting Neis Dillard. As before stated, the appellant suggested two theories — one that Eugene McKinney pulled his pistol and fired. He is supported in this contention with considerable amount of testimony. There is also the issue that- he may have shot at Neis Dillard, and, whether he shot at Neis Dillard or not, that he pulled his pistol for the purpose of shooting Neis Dillard, when the defendant interposed in the difficulty, and the shot may have been fired at appellant. These two theories are in the case by a considerable amount of testimony. We are of the opinion that the charge as given, however, sufficiently submits to the jury, so they were not misled by the charge, in such manner as to sufficiently present these issues.

With reference to the evidence and its sufficiency, we deem it unnecessary to recapitulate it. There were quite a number of witnesses who testified pro and con. That for the state would support, in our judgment, the finding of the jury. Had they believed the defendant’s side of it, he should have been acquitted. We are of opinion it would serve no useful purpose to go into a detailed statement of the evidence.

As the record presents itself to us, we are of opinion the judgment ought to be affirmed; and it is so ordered. 
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