
    SHED v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 15, 1913.
    Rehearing Denied Feb. 5, 1913.)
    1. Criminal Law (§ 1172) — Appeal—Harmless Error — Instructions.
    Any insufficiency in the instructions on manslaughter was not reversible error, where accused was only found guilty of manslaughter, and the lowest authorized penalty imposed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 8159-3163, 3169; Dec. Dig. § 1172.]
    2. Criminal Law (§ 720) — Trial—Misconduct of Attorneys.
    It was highly improper for' the county attorney to ask a witness on cross-examination, “Don’t you know you lied when you said he told you that?” it never being- proper for counsel to call a witness a liar.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    3. Criminal Law (§ 1170%)— Appeal — Harmless Error — Improper Argument.
    AVhere a witness was testifying to facts which would tend to reduce the offense to manslaughter when he was asked by the county attorney whether he did not know he lied when he made a certain statement, and accused was convicted of manslaughter and given the lowest penalty, the impropriety of such statement by the county attorney was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    
      4. Homicide (§ 300) — Instructions — Threats.
    Where' the only threats which accused could have acted on were those claimed to have been made to him in person by decedent, an instruction that if decedent threatened in accused’s presence to take his life, and at the time of the killing decedent was doing some act which from accused’s standpoint appeared to indicate an intention by decedent to execute such threat, and that accused then killed decedent, the jury should acquit on the ground of threats, sufficiently covered the question of threats.
    [Ed. Note. — For other cases, see Homicide, Cent Dig. §§ 614-632; Dec. Dig. § 300.)
    5. Homicide (§ 151) — Self-Defense.
    If decedent attacked accused with a knife in such a manner as was reasonably calculated to produce death or serious bodily harm, the law presumes that decedent intended to kill or seriously injure accused.
    [Ed. Note.- — For other cases, see Homicide, Cent.. Dig. §§ 276-278; Dec. Dig. § 151.)
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    William Shed was convicted of manslaughter, and he appeals.
    Affirmed.
    Clyde F. Winn, of Waxahachie, 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
    
    
      
      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, ff.

Appellant was indicted, charged with murder, and, when tried, was convicted of manslaughter, and his punishment assessed at two years’ confinement in the penitentiary.

Appellant in bill of exceptions No. 1 complains that the court did not give in charge the provisions of article 1102, Pen. Code 1911, that “homicide is justifiable when committed by the husband upon the person of any one taken in adultery with the wife; provided, that the killing take place before the parties to the act of adultery have separated.” The evidence of defendant is not of that force and cogency as to raise this issue — that he killed deceased because the acts and conduct of his wife and deceased were such that they were then and there about to engage in the act of adulterous intercourse.

The court instructed the jury on manslaughter on this phase of the testimony, and as the jury found appellant -guilty of manslaughter only, assessing the lowest penalty, if the charge was not as full and specific as the charge requested by appellant, yet, as the verdict was the lowest authorized by law, this would present no reversible error. There was no error ■ in refusing to give the special charge requested .jn regard to the argument of the county attorney, to which a bill of exceptions was reserved. Such remarks were but legitimate deductions offered in behalf of the state.

It was highly improper for the county attorney to state to the witness who testified in behalf of the defendant, while cross-examining him, “Don’t you know you lied when you said he told you that?” It is never proper for counsel to call a witness a I liar during the trial of a case, and, if by any legitimate construction we could see wherein1 in this instance this worked an injury to defendant, we would feel inclined to reverse the case. But as this witness was testifying to facts which would tend to reduce the offense to manslaughter, and defendant was adjudged guilty of this offense only, and given the lowest penalty, injury is not only not apparent, but precluded by the verdict.

On the issue of self-defense the court instructed the jury: “Upon the law of self-defense, the jury is instructed that, when a person is unlawfully attacked by another in such manner that there is created in the mind of the person so attacked a reasonable expectation or fear of death or of serious bodily injury, then the law excuses or justifies such person in resorting to any means at his command to prevent his assailant from taking his life or from inflicting upon him any serious bodily injury, and it is not necessary that there should be actual danger, as a person has a .right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time; and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If you believe that at the time defendant shot deceased (if he did) that deceased had made or was making an attack upon him with a knife in such manner that it reasonably appeared to defendant viewed from his standpoint that he was in danger of losing his life or suffering serious bodily injury at the hands of the deceased, and he fired the shot under such circumstances, he would be justified. in so doing under the law of self-defense ; and, if he commenced the assault upon deceased in his own self-defense, then you are instructed that he had the right to continue to act, and use any means at his command as long as it reasonably appeared to him, as viewed from his standpoint, at the time, with all the facts and circumstances in his knowledge, that his life or person was in danger; and if you believe that, after shooting deceased (if he did), that defendant secured deceased’s knife and stabbed him' with it, thereby inflicting the mortal wound, and that, at the time he did it, it reasonably appeared to him, as viewed from his standpoint at the time, that he was in danger of losing his life or suffering serious bodily injury at the hands of deceased, then he would be justified under the law of self-defense whether he was actually in danger or not, provided he acted upon a reasonable apprehension of danger as it appeared to him, and if you so find the facts to be, or if you have a reasonable doubt thereof, you will acquit the defendant. When a defendant accused of murder seeks to justify himself on the ground of threats against his own life, he is permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the killing, unless it be shown that at the time thereof the person killed, by some act then done, manifested an intention to execute the threat so made. If you believe that deceased had made in defendant’s presence threats to take his life, and .if you further believe that at the time defendant killed deceased that the deceased did or was doing some act which, from defendant’s standpoint, appeared to him to indicate or manifest an intention on the part of the deceased to carry such threat into execution, and that defendant then killed deceased, you will acquit defendant on the ground of threats against his own life. If you believe that deceased attacked defendant with a knife in such manner as was reasonably calculated to produce death or serious bodily injury, then the law presumes, and you will presume, that deceased intended to kill or seriously injure the defendant.” This was a sufficient presentation of self-defense under the evidence in this ease. There were no threats of deceased communicated to defendant.

The only threats that defendant could have had in mind were those he says made to him in person by deceased, and those threats, if made, were fully covered by the court’s charge.

The criticism of the court’s charge on presumption from the use of a weapon is not justified. As shown by the above excerpt, this was presented in accordance with the testimony; the defendant claiming deceased advanced on him with a knife.

The court fairly presented all the issues made by the evidence, and as the only issue found adversely to defendant was his plea of self-defense, and this being presented fairly as shown above, we are of the opinion the case should be affirmed. The manner of the death of deceased shows a fixed and determined effort to kill, and the matter that reduced the offense to manslaughter was that deceased had been intimate with defendant’s wife.

The judgment is affirmed.  