
    BUSSEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1913.)
    1. Homicide (§ 300-) — Assault to Kill — INSTRUCTIONS ON THREATS.
    An instruction on threats in a prosecution for assault with intent to kill should have submitted that, whether the threats had been made or not, if accused believed they had been made and acted upon them in making the assault, he was justified.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.]
    2. Homicide (§ 300) — Issues—Threats and Self-Defense. .
    Where the evidence raises the issue of self-defense in connection with that of threats, an independent charge on self-defense should be given, but is not necessary where the evidence does not raise that issue in connection with the issue of threats.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614r-632; Dee. Dig. § 300.]
    3. Homicide (§ 300) — Issues—Self-Defense and Threats.
    The evidence, in a prosecution for assault with intent to kill, showed that the night before the shooting accused and the prosecuting witness had a difficulty, and that accused and a kinsman assaulted witness, who left and returned with a gun and sought an opportunity to renew the trouble, but no further trouble occurred that night, and two witnesses testified that they saw prosecuting witness next day, and he made threats as to what he would do to accused the next night, and that each witness communicated such threats to accused before the shooting, but prosecuting witness denied making the threats. The evidence also showed that accused shot prosecuting witness with a double-barrel shotgun at a distance of 25 or 30 steps. Held, that the evidence did not raise the issue of self-defense separate from that of threats so as to require a distinct charge on self-defense.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. §§ 657-661; Dec. Dig. § 310.]
    4. Homicide (§ 310) — Instructions — Aggravated Assault.
    The evidence only raised the issue of aggravated assault so as to require a charge thereon on the theory that accused’s mind was incapable of cool reflection, caused by the prior difficulty, and did not require a charge on aggravated assault based on the infliction of a serious bodily injury upon the person, or committed with deadly weapons under circumstances not amounting to an intent to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Douglas Bussey was convicted of assault with intent to kill, and he appeals.
    Reversed and remanded.
    Carter & Walker, of Center, S. Chamness, of Timpson, and J. P. Anderson, of Center, 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
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   PRENDERGAST, J.

Appellant has appealed from a conviction of an assault with intent to kill.

Only a brief statement of the evidence is necessary to properly pass upon the questions raised. The evidence establishes that, on the night preceding the shooting of the complaining witness by appellant, they had a fuss or row at the church, and that appellant and his kinsman, Coleman Bussey, had assaulted Alonzo Curtis and run him away from the church; that thereupon said Curtis, the assaulted party, went off, procured and returned with his gun, and it seems sought, that same night, an opportunity to have a further difficulty with appellant and Coleman Bussey, but no further altercation occurred between them that night. Two witnesses, Anna Mays and Ben Strange, each testified that they saw Curtis the next day and he made threats against the said Busseys of what he would do to them the next night. Both of these witnesses testified that on the same day, and before the shooting that night, each communicated these threats to appellant. Appellant testified that they both communicated said threats to him. Curtis, the assaulted party, denied making any such threats to either of these witnesses.

The court properly charged on threats, but required the jury to believe that the threats were made. Appellant complains and properly raised and preserved the question that the charge should also have submitted to the jury that whether the threats had been made or not, if appellant believed they had been made, and, so believing, acted upon them, then the law would justify him in so acting. In our opinion appellant’s contention is correct, and the charge should have so submitted. Buckner v. State, 55 Tex. Cr. R. 517, 518, 117 S. W. 802, and cases there cited; Lundy v. State, 59 Tex. Cr. R. 135, 127 S. W. 1032, and cases cited. See, also, Branch’s Crim. Law, § 482, p. 311. It is needless to cite the many other cases to the same effect.

Again, the court charged on self-defense in connection with and based upon threats. Appellant complains that, in addition to this, the court should have charged on self-defense independent of and in addition to so charging in connection with threats.

This court has repeatedly held that, where the evidence calls for it, in addition to charging on self-defense in connection with threats, an independent and an additional charge should also be given on self-defense. But where the evidence does not raise the question, then no general charge on self-defense, in addition to that given in connection with threats, is necessary. In this case the evidence clearly raises self-defense in connection with threats, but in our opinion it does not raise self-defense otherwise so as to require an additional charge on that subject. If on another trial self-defense, independent of and disconnected from threats, is raised, of course, it will be proper for the court to charge thereon.

Appellant also contends that the court should have charged on aggravated assault, based on subdivisions 7 and 8 of article 1022, P. C. The court did charge on aggravated assault on the theory that the evidence raised the question of whether or not appellant’s mind was incapable of cool reflection, caused by what had occurred between the parties theretofore and at the time of the shooting. In our opinion the evidence only raised the question of aggravated assault on the theory in which the court charged it, and the evidence did not authorize or require such a charge on either of the grounds claimed by appellant. Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Yzaguirre v. State, 48 Tex. Cr. R. 514, 85 S. W. 14; section 521, Branch’s Crim. Law. The evidence in this case shows that appellant shot the deceased with a double-barrel shotgun, and the distance between them at farthest was only 25 or 30 steps.

Because of the error in the charge of the court above pointed out, the judgment is reversed, and the cause remanded.  