
    PENTON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 26, 1912.)
    1. Homicide (§ 307) — Trial—Instructions —Aggravated Assault.
    In a prosecution’ for homicide, where a witness testified that, on exclamation by the wife of deceased that men standing by had let that man kill her husband, he went out to where deceased was lying on the ground, and that defendant stood over him with an ax, and struck him on the head, and where defendant himself testified that he picked up an ax and struck deceased with it three times, knocking him down at the first blow, a charge on aggravated assault defining a deadly weapon was not called for.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    2. Homicide (§ 174) — Evidence—Declaration by Third Person Subsequent to Difficulty.
    On a trial for murder, evidence that a witness who reached the deceased a few moments after the killing, but after defendant had fled, heard some unknown person say, “If you had let me had the pistol, I could have gotten him,” was properly excluded.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    3. Homicide (§ 300) — TImal—Instruction— Burden oe Proof.
    A charge in a trial for murder that, if deceased had done some act which alone “or” by words accompanying the act, etc., was not objectionable as submitting the grounds of self-defense in the conjunctive.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. B 614, 616-620, 622-630; Dec. Dig. § 300.]
    4. Criminal Law (§ 823) — Appeal—Instructions — Cure by Other Instructions.
    Where the requested instructions of defendant on a trial for murder were given, and presented every phase of self-defense raised by the evidence, they cured any slight error on the court’s own charge on self-defense.
    • [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    5. Homicide (§ 166) — Evidence—Motive.
    In a trial for murder, evidence as to a difficulty in the house between defendant and deceased was admissible as tending to show motive for the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Marcellus Penton was convicted of manslaughter, and he appeals.
    Affirmed.'
    Hart, Mahaffey & Thomas, of Texarkana, 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
    
   HARPER, J.

Appellant was indicted for murder, but having been tried once before and found guilty of manslaughter only, on this trial the. court submitted only the issue of manslaughter, and he was found guilty, and his punishment assessed at three years’ confinement in the penitentiary.

The first ground in the motion complains that the court erred in failing to charge on aggravated assault, as the instrument with which deceased was killed was an ax. Every ease must be decided on the facts of that case, and under the evidence we do not think it called for a charge on aggravated assault. Charlie Sims testified that deceased’s wife came running in the room exclaiming, “Lordy! them men stood out there and let that man kill my husband,” when he went out by the fire, and, when he got there, deceased was lying on the ground on his face, and defendant was standing over him with an ax in his hand, and, just as he ran up, defendant struck deceased in the head, exclaiming, “Damn you, I will kill you, and pay for it.” Deceased’s brains were running out of his head. Defendant testified that he picked up an ax and struck deceased with it; that he struck him three times, knocking deceased down at the first blow. His testimony would present a case of self-defense, but he testifies to no fact or circumstance that would indicate he did not intend to kill deceased when he struck the blows with the ax, and under such circumstances a charge on aggravated assault was not called for, and it was not necessary for the court to define or give the meaning of the words -“deadly weapon.”

The only bill of exceptions in the record complains that while J. E. Lyles was testifying appellant proposed to prove by him that he got to the body a few minutes after the killing and heard some one say; “If you had let me have the pistol, I could have gotten him.” Defendant had fled at this time, and deceased was lying on the ground dead. So neither one of them could have used the language. The witness would have also testified he did not know who used the language. As there is no suggestion in the record that any one else was engaged in the difficulty other than defendant and deceased, and this remark was made by some one else subsequent to the difficulty, there was no error in the ruling of the court.

The charge of self-defense did not shift the burden of proof, and neither did it submit the grounds of self-defense in the conjunctive. The court charged the jury: “If deceased had done some act, which alone, or by words accompanying the act,” etc. The word “or” is used where, “and” is used in the authorities cited by appellant as sustaining his contention. Three of the special charges requested by appellant were given, and these in connection with the court’s main charge presented every phase of self-defense raised by the evidence, and, if there had been any slight error in the court’s charge on self-defense, the special charges given would and did cure it.

The testimony of the witnesses Charlie Sims, Cappie Sims, and Mollie Fisher as to the difficulty in the house between appellant and deceased went in without objection, and the refusal of special charge No. 2 presents no error. The evidence was admissible as tending to show the motive for the killing, and the court in special charge No. 1 given at appellant’s request properly limited the purpose of the testimony, and it was unnecessary to give any additional instruction in regard thereto.

The evidence is conflicting as to defendant’s right of self-defense on the occasion, but the great weight of the testimony seems to be there was no shooting until after deceased had been stricken down, and this issue, as raised by the testimony, was fairly and fully submitted by the court in his charge and the special charges given.

The judgment is affirmed.  