
    FOSTER v. STATE.
    (Court of Criminal Appeals of Texas.
    May 8, 1912.
    On Motion for Rehearing, June 5, 1912.)
    1. Bail (§ 64) — Appeal—Recognizance.
    Where appellant was indicted for murder and convicted of aggravated assault, and the recognizance did not comply with the law relating either to a felony or a misdemeanor conviction, an appeal therefrom will be dismissed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 278; Dee. Dig. § 64.]
    On Motion for Rehearing.
    
      ~2. Criminal Daw (§ 1090) — Appeal—Evidence.
    Admissibility of evidence cannot be considered on appeal, in the absence of bills of exception.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    3. Homicide (§ 340) — Degrees—Conviction —Instructions—Review.
    Where accused was convicted of aggravated assault only, instructions with reference to manslaughter and higher degrees of homicide cannot be reviewed on appeal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    4. Homicide (§ 300) — Instructions — Self-Defense.
    Deceased, without provocation, fired a shot that struck defendant. The testimony as to what followed was conflicting. That of the state was sufficient to raise the issue that, after he knew the danger was passed, defendant continued to maltreat deceased, while defendant’s evidence indicated that as soon as he was aware that deceased was no longer armed he desisted. The court charged that the right of self-defense depended on the necessity or apparent necessity to take life in order to prevent death or serious bodily injury,* and declared that, when the necessity or apparent necessity to do so ceased, the right ceased, and followed that with a charge that, if defendant struck additional blows or kicks independent of those made in his lawful self-defense, he could not claim that he acted in self-defense. Held, that such instruction presented the state’s theory only, and, the converse of the proposition having been requested, the court erred in refusing to charge that, if defendant first struck in his lawful self-defense, he was entitled to continue so long as it reasonably appeared to him to be necessary, and, if he ceased as soon as he learned that the necessity had ceased, he should be acquitted, etc.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    5. Homicide (§ 151) — Self-Defense — Shooting with Pistoi>-Presumption.
    Where deceased shot defendant with a pistol which constituted the commencement of the difficulty, the court erred in failing to apply the law of presumption provided by Pen. Code 1895, art. 676, where the weapon used by deceased was calculated to inflict the resulting injury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 276-278; Dec. Dig. § 151.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Herschel Foster was convicted of aggravated assault, and he appeals.
    Reversed and remanded on rehearing.
    Cooper, Merrill & Lumpkin, of Amarillo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other eases 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, and was convicted of an aggravated assault.

The recognizance is not in compliance with the law relating either to a felony or misdemeanor conviction, and the motion of the Assistant Attorney General to dismiss must be sustained.

Appeal dismissed.

On Motion for Rehearing.

This case was dismissed at a former day of this term, and, appellant having filed a new recognizance as provided by law, the case is reinstated, and will be considered on its merits.

Deceased was a married woman, and went to the home of a friend and telephoned for appellant. He and a friend named Cantrell went to the home of Miss Stacey at night, and they all drank beer. It is shown that improper relations had existed between appellant and deceased, and deceased that night made remarks about appellant being seen with other women. It is useless to repeat the language, but, after some words had been passed, appellant proposed to go and get some more beer; he stating his intention was to get away. Deceased objected to him leaving, and telephoned for the beer. While waiting deceased went into an adjoining room and got a pistol belonging to Miss Stacey, and fired it, the ball striking appellant in one of his ears. The state’s testimony would indicate that the shot was perhaps unintentionally fired, while the testimony offered in behalf of appellant would show an intentional shooting. Appellant knpcked deceased down, and the state’s testimony would show he stamped her seven or eight times, and otherwise maltreated her, claiming that deceased asked him not to do that, that she did not intend to shoot him; that appellant replied that she had tried to kill him, and he was going to kill^her. The testimony would show that deceased was badly bruised, and died a few days thereafter.

Appellant admits knocking her down; that he thought she was trying to kill him, and he got down over her and struck her, not knowing but what she would shoot again; that, when informed she had no longer a pistol, he desisted. The attending physician testifies that deceased died because she would not permit an operation when he recommended it, and on this testimony the jury returned a verdict only of aggravated assault.

The several grounds in the motion for new trial complaining of the admissibility of certain testimony we cannot consider, as there are no bills of exception in the record.

Neither can we consider the refusal to give special charges Nos. 1, 2, and 3, as they all relate to the offense of manslaughter, and appellant was found guilty of aggravated assault only, and the charges only relate to whether appellant was guilty of homicide or of less offense. .

However, we think charge No. 5 should have been given. It reads: “If you believe from the evidence that defendant first struck the deceased in self-defense, then you are instructed that he had the right to continue to so act so long as it reasonably appeared to him to be necessary, and, if he ceased to so act as soon as he learned that the necessity had ceased, you will acquit the defendant, or, if you have a reasonable doubt as to whether he so ceased to act as soon as it became reasonably apparent that such necessity had ceased, you will acquit, and say by your verdict ‘not guilty.’ ” This theory was not presented in the court’s main charge. The unquestioned evidence shows that deceased, without provocation on the part of appellant, fired a shot that struck him, and the first blow struck by him under such circumstances would render him guilty of no offense. The testimony is conflicting after this first blow; that for the state would raise the issue, that, after he knew danger was passed, he continued to stamp and maltreat her; while appellant and Mr. Oantrell by their testimony would present the issue that as soon as appellant was made aware she was no longer armed he desisted. The court had charged the jury: “The right of self-defense depends upon the necessity or the apparent necessity to take life in order to prevent death or serious bodily injury, and, when the necessity or apparent necessity to do so ceases, the right ceases.” And followed this up with a charge that if the defendant struck additional blows or kicks, independent of the blows or kicks made in his rightful self-defense, the defendant could not claim to have acted in self-defense. Presenting the state’s theory, the converse of the proposition should have been given as requested by defendant.

Again, deceased fired with a pistol, and defendant claims that the court erred in failing to give in charge Pen. Code 1895, art. 676. Under the decisions of this court, we think the court should have applied the law of presumption as stated in this article properly, if deceased intentionally fired the shot.

The judgment is reversed, and the causé-is remanded.  