
    LISTON v. STATE.
    (No. 9741.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1926.)
    1. Indictment and information &wkey;>l I (2) — Absence of file mark held not ground for quashing indictment, filing nunc pro tunc being available.
    In homicide case, fact that indictment did not show a file mark held not grounds for sustaining motion to quash, the court being authorized to direct filing nunc pro tunc.
    2. Homicide <S=282 — Evidence held for'jury on question of murder, as well as manslaughter.
    In homicide ease, evidence that defendant became incensed with deceased for boisterous conduct in his home where he was giving a dinner, and followed him into the yard, where he killed him in claimed self-defense, held sufficient to go to jury on question of murder, as well as manslaughter.
    3. Homicide &wkey;>307(2) — Failure to charge an aggravated assault held not error, in view of evidence.
    ' In prosecution for murder committed by defendant, using a .45 Colt’s pistol, in claimed self-defense against deceased, armed only with a razor, if at all, failure to charge on law of aggravated assault held not error.
    4. Homicide <&wkey;2l4(3)— Deceased’s statements that defendant sh.ot him “for nothing” held part of res gestee.
    Deceased’s statement after shooting that defendant had shot him, and shot him “for nothing,” held part of res gestee and admissible.
    5. Homicide <&wkey;300(3) — Instruction on right to kill in self-defense held too restricted.
    Instruction that homicide was justified in protection of person, but that all other means must have been resorted to to preyent injury, and that killing must take place while person killed is in the very act of making unlawful and violent attack, held too restricted.
    Commissioners’ Decision.
    Appeal from District Court, Burleson County; J. B. Price, Judge.
    George Liston was convicted of murder, and he appeals.
    Reversed and remanded.
    Bowers & Bowers, of Caldwell, for appellant.
    ■ Sam D. Stinson, State’s Atty. of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted of murder in the district court of Burleson county, and his punishment assessed at 5 years in the penitentiary.

The record discloses that the appellant and the deceased, I-Iatfield King, were both negroes; that the appellant, on the night of the homicide, gave what was denominated as. a supper; that the deceased, while under the influence of whisky, entered the house where the appellant’s guests and customers were assembled and conducted himself in a very boisterous and violent manner; and that the deceased, when requested to desist from his acts, became somewhat incensed at the appellant and followed him out of the house into the yard. It was the contention of the state that the deceased was unarmed and was shot by the appellant while he was running away, and that when he fell the appellant approached and shot him again. It was the contention of the appellant — and he so testified and introduced other evidence to that effect — that the deceased was armecl with a razor, and that, upon reaching the yard, he advanced upon the appellant wich the razor drawn in a threatening manner, whereupon the appellant shot deceased in his own self-defense.

The appellant complains of the action of the court in refusing to quash the indictment because it failed to show that it was ever filed in court and had no file mark thereon. It is further contended that same was not filed after said motion was overruled. The court heard evidence on this motion and found that said indictment had been properly returned into court. The are of the opinion that the record shows no error in this particular, and that the court would be authorized to have said indictment filed nunc pro tunc.

The appellant complains of the action of the court in submitting the issue of murder to the jury and insists that the evidence presented no higher grade of offense than manslaughter. We are unable to agree with this contention and think the court did not err in submitting said issue to the jury. The condition of appellant’s mind was a question for the jury, not for the court. Bowlin v. State, 93 Tex. Cr. R. 452, 248 S. W. 396; Purvis v. State, 104 Tex. Cr. R. 408, 284 S. W. 588.

The appellant also complains of the action of the court in failing to charge the jury on the law applicable to aggravated assault. The record discloses that the appellant was using a 45 Colt’s pistol, a deadly weapon, in a deadly manner, and we find nothing in the evidence raising this issue. Cade v. State, 90 Tex. Cr. R. 523. 258 S. W. 484.

In bill of exception No. 4 the appellant complains of the action of the court in permitting the state’s witness Gee to testify that, immediately after the shooting, the deceased stated to him that the appellant shot him, “and shot him for nothing.” The appellant contends that this was hearsay testimony and that the court erred in admitting same. The record discloses that the statement was made within three or four minutes after the shooting and While the deceased was lying on the ground, unable to get up on account of the wounds received 'at the hands of the appellant. We are of the opinion that this testimony came clearly within the rule of res gestm, and-that the court committed no error in the admission of same. Nami v. State, 97 Tex. Cr. R. 522, 263 S. W. 595.

Complaint is made to the following portion of the court’s charge:

“Homicide is justifiable in the protection of the person, against any unlawful and violent attack, but in such case all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making unlawful and violent attack.” .

It is contended by the appellant that the court’s charge, in this particular, is too restrictive in requiring the appellant to resort to all other means before he would have a right to act in his own defense. We think the criticism urged is well founded. Terrell v. State, 53 Tex. Cr. R. 604, 111 S. W. 152; Petty v. State, 86 Tex. Cr. R. 324, 216 S. W. 867.

There are other questions raised by the appellant which are not likely to arise upod another trial, and for that reason we deem it unnecessary to discuss same.

For the error above discussed, we are of the opinion' that the judgment of the trial court should be reversed and remanded, 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. 
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