
    YANCY v. STATE.
    (No. 10876.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    Rehearing Denied Nov. 2, 1927.
    1. Homicide <&wkey;300(7) — Where defendant shot deceased who was unarmed, instruction on right to arm, with determination to shoot to repel attack, held properly refused.
    Where deceased was unarmed during quarrel with defendant and at the time defendant shot him, instruction as to defendant’s right to arm himself, with the determination to shoot in case he was attacked, ¡held properly refused.
    2. Homicide <&wkey;300(7) — Where deceased was . unarmed, instruction under statute defining presumption arising from use of deadly weapon by person slain held properly refused (Pen. Code 1925, art. 1223).
    Where deceased was not armed at any time during fatal quarrel, instruction under Pen. Code 1925, art. 1223, which defines the presumption arising from the use of a deadly weapon on the part of the person slain, when the killing takes place to prevent murder, ¡held properly refused..
    
      3. Criminal law <&wkey;829(5)—Refusal of requested instructions on self-defense, covered by main charge, held no error. ''
    Where requested instructions on the issue of self-defense were fully covered by the main charge, refusal to give them ¡held no error.
    4. Criminal law <&wkey;8I4(3)—Refusing charge not supported by evidence held proper.
    Refusing charge as to right of one who has been threatened to seek explanation and to attempt to settle difficulties ¡held properly refused, where there was no evidence to support any theory that defendant sought explanation or intended to attempt settlement with deceased.
    On Motion for Rehearing.
    • 5. Criminal law &wkey;>829(5)—Where instructions on self-defense and self-defense based • on threats were given, unqualified by any charge limiting defendant’s rights, instructions on right to arm and to seek adversary for explanation held properly refused.
    In prosecution for homicide where instructions on self-defense generally and on self-defense based on threats were given, in no way qualified by charge' on provoking difficulty or charge which limited defendant’s rights in any way, requested instructions on right to arm with determination to shoot to repel attack and right to seek adversary for an explanation of threats and to attempt settlement held properly refused.
    Appeal from District Court, Brown County; J. O. Woodward, Judge.
    J. A. Yancy was convicted of manslaughter, and he appeals.
    Affirmed.
    Callaway & Callaway, of Comanche, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Ryles, Asst. State’s Atty., both of Austin, and the Assistant Attorney General, for the State.
   IíATTIMORE, J.

Conviction of manslaughter; punishment, 2 years in the penitentiary.

Appellant killed his father-in-law by shooting him with a shotgun. From the standpoint of the state the facts seem to show a much graver crime than that for which appellant was convicted. We see no advantage in setting out in detail the facts.

We find in the record five bills of exception, each being reserved to the refusal of a special charge. The first bill of exceptions presents complaint of the refusal of a charge, in effect, that one whose life has been threatened has the right to arm himself and determine to shoot his assailant if he is attacked by the party threatening him, and his action in arming himself does not deprive him of the right to defend himself in ease of attack, and that if the jury found in this case that appellant was threatened with death or serious bodily injury by the deceased, and that he armed himself for the purpose of repelling said attack, and with the determination to shoot the deceased in case he was attacked, this would not deprive him of his right of self-defense. We perceive no facts calling for such a charge, even if it presented a correct proposition of law, with which proposition we are not in accord. Giving only the version of the matter found in appellant’s testimony, we observe that he states that, following an encounter between himself and deceased, deceased called for his gun. Appellant says he went off and got his gun and loaded it and came back down to where deceased was, and about the time he got back down there the daughter of deceased appeared, bringing to the latter his gun. Before she got to him with the gun, appellant said, believing himself in danger, he shot and killed deceased. We do not deem these facts to call for such charge as that under consideration.

The second bill of exceptions seeks to invoke the principle enunciated in article 1223, 1925 P. C., which defines the presumption arising from the use of a deadly weapon on the part of the person slain, when the killing takes place to prevent murder, etc. In view of the fact that deceased at no time in the fatal difficulty had in his hand any gun or other character of weapon, we find no room for giving application to the provisions of said statute.

Requested charges Nos. 3 and 4, complained of in bills of exception bearing the same numbers, relate to self-defense based on threats, and we are of opinion that the law relative to such right on the part of the accused was fully covered by the main charge, and that no error is presented in either of said bills of exception.

The remaining bill of exceptions complains of the refusal of a charge, in effect, that one who has been threatened has the right to go to such other person for an explanation and to make an attempt to settle the difficulties, and that if the jury find that deceased had threatened the defendant, in the instant case, then defendant had the right to seek deceased for an explanation and settlement. We find no facts in this case supporting any theory that, at the time appellant armed himself and went to where he fired the fatal shot, he had any purpose of seeking an explanation or attempting any settlement with deceased. The requested charge finds no support in the facts.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant renews complaint because the court refused his special charges on the right to arm and seek his adversary for an explanation, such requested charges being the ones discussed in the first and last paragraphs of our original opinion. In addition to the reasons heretofore given why no error was committed in refusing such instructions, there is still another to which we did not advert in our former opinion. The court gave an instruction on self-defense generally and upon self-defense based upon threats, in no way qualified by a charge on provoking the difficulty or which limited appellant’s rights in any way. By a long line of authorities it is settled that, under such circumstances, the court is not called upon to give instructions such as were here refused. Williford v. State, 38 Tex. Cr. R. 393, 42 S. W. 972; Smith v. State, 81 Tex. Cr. R. 368, 195 S. W. 595, and cases therein collated; also, Hollman v. State, 85 Tex. Cr. R. 371, 212 S. W. 663; Ott v. State, 87 Tex. Cr. R. 382, 222 S. W. 261; Pollard v. State, 88 Tex. Cr. R. 104, 225 S. W. 56; Henderson v. State, 89 Tex. Cr. R. 21, 229 S. W. 535; Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790.

We have again reviewed the facts and are still of the opinion ,no charge was called for upon the presumption that deceased intended to kill appellant. When appellant shot him, deceased had neither' a knife nor gun in his hand. All of appellant’s rights were protected under the instructions given on self-defense.

The motion for rehearing is overruled. 
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