
    THIBEDEAUX v. STATE.
    (No. 10524.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1927.
    Rehearing Denied Feb. 23, 1927.)
    Criminal law &wkey;>l 186(4) — Failure to instruct that, if accused shot without intending to injure, he was guilty of aggrávated assault only, if error, held harmless (Code Cr. Proc. 1925, art. 666).
    In prosecution for assault with intent to murder, failure to instruct that, if accused shot F. for purpose of scaring him and wjthout any intention of hurting him, he was guilty of no higher offense than aggravated assault, if error, held not so harmful as to authorize reversal, under Code Cr. Proc. 1925, art. 666, in view of charge given and facts of case.
    Commissioners’ Decision.
    Appeaj. from District Court, Jefferson County; J. D. Campbell, Judge.
    Dominic Thibedeaux was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Blain & Jones, of Beaumont, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, .and Robt. M. Dyles, Asst. State’s Atty., of .Groesbeek, for the State.
   BAKER, J.

The appellant was convicted of assault with intent to murder in the district court of Jefferson county, and his punishment assessed at two years in the penitentiary.

The record discloses that the appellant, his brother, Horace Thibedeaux, the prosecuting witness, Eaux, and many others, were attending a party on the night of the difficulty; that the appellant was under the influence of intoxicating liquor, and insisted upon dancing with the daughter of the prosecuting witness, over the latter’s protest, and against the wishes of his daughter; and that, while Faux and the appellant were in a controversy relative to said matter, Horace Thi-bedeaux interceded in behalf of his,brother, which resulted in a fight between Horace and Faux, during which the appellant shot Faux in the back with a pistol. It was the contention of the state that the appellant shot the prosecuting witness with malice and with the specific intent to kill him.

The appellant defended upon the ground that his acts were in defense of himself and his brother. The appellant testified that, at the time he shot the witness- Faux, the latter had his brother down and was choking him, and had threatened to kill him, appellant, and that he was of the opinion that the witness would attack him as soon as he had finished his brother, and that the reason why he shot the witness was to protect himself and his brother against the assault of Faux. Upon cross-examination by the state, the appellant further testified that he did not intend to hurt Faux, but shot him on account of being seared, and for the purpose of scaring Faux, and malting him desist from his attack upon Horace Thibedeaux.

The court gave a charge to the jury, at the request of the appellant, as to the appellant’s acting in defense of himself and his brother, and also charged the jury that, if the appellant’s mind was incapable of cool reflection at the time of the shooting, he would be guilty of no higher offense than aggravated assault. The appellant contends that the court committed reversible error in failing to instruct the jury that, if he (appellant) shot Faux for the purpose of scaring him, and without any intention of hurting him, he would be guilty of no higher offense than -aggravated assault.

We are unable to agree with this contention, and under a similar state of facts, in the case of Cade v. State, 96 Tex. Cr. R. 523, 258 S. W. 484, this court held that a failure on the part of the court to give such a charge was not reversible error. Under the facts of this case, in connection with the charge of the court as given, we are of the opinion that, if the court erred in failing to charge on this phase of the case, same was not of such a harmful nature as would warrant this court in reaching the conclusion that it was.calculated to injure the rights of the appellant, or that he did not get a fair and impartial trial. For that reason, this court would be unauthorized to reverse, this case, under article 666, C. C. P. 1925.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court sihould be affirmed; and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant files a motion for rehearing, referring only to assignments of error. We do not consider nor pass on assignments of error. We have examined the case of Cooper v. State, 250 S. W. 185, and find nothing in our original opinion in any wise contradictory of what we said in that case. We have examined the record, as far as we are able, in the light of the motion, and are constrained to uphold the correctness of the opinion heretofore rendered.

The motion for rehearing will be overruled. 
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