
    CLAY v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Indictment and Information (§ 189)— Triad — Dismissing Charge.
    Under an indictment for murder in the first degree, it is proper on motion of the district attorney to place defendant on trial for no higher grade of offense than murder in the second degree.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 582-596; Dec. Dig. § 189.] .
    2. Juey (§' 70) — First Degree Murdeb- — Reduction of Offense — Special Venire.
    Where a charge of murder in the first degree has been reduced by the district attorney going to trial on a lesser degree, the defendant is not entitled to have a special venire summoned, but may be required to select a jury from a panel for the week.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 810-330, 840, 850; Dec. Dig. § 70.]
    3. Homicide (§ . 191) — Evidence—Previous Assaults by Peeson Killed.
    Where a. defendant in a trial for homicide has testified that the deceased* was approaching her with a knife, saying that he was going to kill her, evidence of recent attempts by the deceased to kill or inflict serious injury upon her was admissible as bearing on her good faith in claiming that she then feared she would be killed.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 414; Dec. Dig. § 191.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Josephine Clay was convicted of homicide, and she appeals.
    Reversed and remanded.'
    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
    
   HARPER, J.

Appellant was indicted, charged with murder in the first degree. Before announcing for trial, the district attorney filed a written motion stating -the evidence would not sustain murder in the first degree, and asked that appellant be placed on trial for no higher grade of offense than murder in the second degree, which motion was sustained by the court by order duly entered, when the court refused to order a special venire summoned, and required appellant to select a jury from the panel for the week. In this the court did not err. In Gentry v. State, 152 S. W. 635, we discussed this question at length and do not deem it necessary to do so again.

The defendant testified in her own behalf and said on the morning of the difficulty deceased came home angry. After some words she details the difficulty as follows: “He commenced cursing me, and from that we got to quarreling, and he hauled off then and hit me, hauled off then and slapped me two or three licks over the head; I asked him what he was jumping on me for; he said, ‘God damn you, I intend to kill you;’ and then I and him was that time then at the front hall door; and then his mother and little girl came there and caught hold of him and commenced trying to catch him and hold him away from me, and he slapped me three or four times over the head, and he ran his hand in his pocket and pulled his knife out. He said,. ‘Mamma, I am going to cut her God damn throat; I am going to kill her;’ he had me back up against the wall holding me with that hand and had his knife drawed back, and I hollered for my girl; she was hollering to him, ‘Calvin, don’t kill Josephine for nothing.’ He said, T am going to cut her God damn throat,’ and had his knife brought back and had my back against the wall. I called, ‘Lina!’ I said, ‘Come here and help me; don’t you see Cap here trying to kill me?’ When I called for Lina, as to what kept him from stabbing me, he had me against the wall and his mamma and daughter was holding down to his hand so he could-n’t cut me with the knife; I hollered for Lina, and she came running, and she came to the steps and throwed. up both hands and says, ‘Oh, Cap, don’t kill my mamma;’ he said, T won’t only kill her, but, you God damn wench, I will kill you;’ and at that time he throwed out after her, and then his ma and his daughter put me in the bedroom, and then she sends Babe on out to hunt for Buddy, his brother; and then Mamma and me was in the room; Mamma had me in the bedroom talking to me; and I said, ‘Mamma, I ain’t going to do anything to him if he don’t try to kill me.’ She said, T don’t know what is the matter with Calvin;’ and so he kept on. I was standing on the foot of my bed. She was kinder on, kinder at my back, and he came back. After he had been chasing Lina he came back and pushed the door wide open and made two steps at me with a knife; I ducked betwixt Mamma and the foot of my bed under him, and, when he made the third one, I pointed the gun right up that way and fired.”

After testifying as above, the defendant offered to testify to the following facts, as shown by bill of exceptions No. 5: “That at one time about a year before the homicide, while they were living near the store of Banner Manake, he tried to kill her with a bed slat, and that he would beat and bruise her, and she only saved her life by flight, and that afterwards, and a short time before the homicide, while she was living near Tony Magetta, he assaulted her with a club and his fist, and that at another time, about a month before the homicide, he again assaulted her and beat her and threatened to kill her, and that on the Thursday before the homicide he assaulted the defendant and beat her and threatened to kill her.” The court sustained an objection to this latter testimony, and in that we think he erred. It would tend strongly to support her plea that she thought and believed he intended to kill her. at the time she shot him, and the jury is to view the circumstances as it reasonably appeared to her at the time.

Appellant also offered to prove some of the same facts by Banner Manake and Tony Magetta, and the court erred in excluding this testimony also. When a defendant testifies that the deceased was approaching her with a knife, saying he was going to kill her, previous acts a short time before in which he attempted to kill or inflicted serious bodily injury are admissible in evidence as bearing on her good faith in claiming that she then and there feared she would be killed. It is useless to discuss the bill relating to the overruling the motion for a continuance as the case will be reversed and it will not likely occur on another trial.

The judgment is reversed, and the cause remanded.  