
    CLAMPETT v. STATE.
    (Court of Criminal Appeals of Texas.
    April 24, 1912.
    Rehearing Denied May 15, 1912.)
    Homicide (§ 112) -Self-Defense — Evidence.
    Where accused, arming himself with a gun to kill decedent, went to where decedent was to carry out his purpose, and as decedent walked away without saying a word, accused fired at him and killed him, accused could not rely on self-defense, though decedent, when walking away, walked in the direction of a shotgun, and thereby led accused to believe that decedent was going to kill him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 145-150; Dec. Dig. § 112.]
    Appeal from District Court, Hardin County ; L. B. Hightower, Judge.
    Albert Clampett was convicted of manslaughter, and he appeals.
    Affirmed.
    Buchanan & Stone and Mathis & Teague, all of Brenham, 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
    
   DAVIDSON, P. J.

Appellant was convicted of manslaughter, and allotted a term of two years in the penitentiary.

Appellant and the deceased, Tom Williams, were shown to have been warm personal friends up to the time of the killing. Within a couple of hours of the homicide, appellant had loaned deceased his horse to ride to the depot. The horse had been returned about 12 o’clock. Appellant rode the horse home, had dinner, and laid down for a little rest after eating. Upon lying down his wife called his attention to the fact that deceased, Williams, had been writing letters to appellant’s orphan sister, whom he had practically raised and supported. The letter is incorporated in the record, and was of an amorous nature, seeking to induce the girl to run away with him, and indicating that they were carrying on a clandestine correspondence. The girl not being at home, but on a visit around the town somewhere, appellant went to see her. She admitted the correspondence, and stated she had declined to accede to any proposition on the part of the deceased. We deem it unnecessary to go into a detailed statement of the contents of the letter and incidental matters of that sort, as that phase of the law was fully and correctly submitted by the court to the jury on the theory of manslaughter, and appellant given the lowest possible punishment.

Appellant, immediately upon receiving the information imparted by his wife and his sister and that ascertained from the letter, prepared himself with a shotgun, rode down to deceased’s barber shop, hitched his horse across the street from it, and went in the direction of the barber shop, where deceased was standing in the door. Deceased saw him coming, and, whether because of the fact he was coming towards him, or for some other reason, turned from the door and went towards the rear end of the barber shop. Appellant fired one shot, striking him in the left shoulder, and diagonally from the rear several buckshot went into the body and lodged in the skin in front of deceased’s body, killing him. Deceased lived a few minutes, and died.

Appellant further testified that, as soon as he ascertained the condition of things, he armed himself for the purpose of killing the deceased, and-went to the barber shop to execute that purpose; that, after he reached the scene of the tragedy, he changed his mind, and thought he would talk with the deceased about the matter; but he thought deceased, as he went towards the rear end of the barber shop, was going after a shotgun which was situated in that part of the shop, and he immediately fired. There was nothing said by appellant to deceased, and these purposes on his part were lodged within his own consciousness, and not imparted to any one. Appellant also testified that he thought he saw deceased reach for the shotgun; at least, that was the impression on his mind when he fired.

Under this state of facts appellant insists, and the only insistence that he makes before this court, that the court should have submitted the law of self-defense. We can-' not agree with appellant’s contention in this respect. Under the facts stated by appellant, he armed himself for the purpose of killing deceased, for the reasons he did state; that he went to where deceased was for that purpose, and that as deceased walked away from him, without saying a word, he fired at him, striking him in the rear part of the left shoulder, killing him. If the deceased, putting it as strong as defendant could possibly claim it, was starting in tlie direction of his shotgun, believing that appellant was going to kill him, self-defense would not be in the case. We are of opinion that this record does not bring the case within the rule laid down in Shannon v. State, 35 Tex. Cr. R. 1, 28 S. W. 687, 60 Am. St. Rep. 17, nor within the rule laid down in Ball v. State, 29 Tex. App. 107, 14 S. W. 1012.

Believing the issue of self-defense was not in the case, and that being the only question presented, this judgment ought to be affirmed; and it is accordingly so ordered.  