
    FRANCIS v. STATE.
    (No. 3511.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.).
    1. Homicide <&wkey;300 — Trial>-Instructions— Self-Defense.
    Where the evidence showed that after the first shot deceased fled, ran through a store, and that defendant pursued him, shooting as he entered the store door, shooting him again as he fled out the back door, and once more back of the store, where deceased fell and died, an instruction that, if deceased had done any act that made defendant believe from his own standpoint at the time that deceased was about to attack him and inflict death or serious bodily injury, defendant had the right to shoot deceased and continue to shoot him as long as such danger or apparent danger continued, and that though deceased retreated defendant had the right to pursue him and continue shooting until the real or apparent danger from his viewpoint had ceased to exist, was sufficiently favorable to defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <@=>300.]
    2. Homicide <&wkey;300 — Trial—Instructions— Self-Defense — Threats.
    Where deceased made no threats before the difficulty which culminated in the fatal shooting, but only during such difficulty, the refusal to give a special charge on the issue of self-defense from threats was not error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <@=>300.]
    Appeal from District Court, Wharton County; Sam’l J. Styles, Judge.
    Mack Francis was convicted of manslaughter, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Upon an indictment charging him with murder, appellant was convicted of manslaughter and his punishment assessed at five years’ confinement in the state penitentiary.

There is no bill of exceptions in the record in regard to the introduction of testimony; no exception was reserved to the charge of the court as given, but an exception was reserved to the failure of the court to give one of the special charges requested by appellant. In addition to his main charge presenting the issue of self-defense, the court gave the following special charge at request of appellant:

“In this case you are charged that if you believe from the evidence that defendant, Mack Francis, shot deceased, and you further believe that at the time he fired the first shot deceased had done some act that made defendant believe, viewed from his standpoint at the time, that he, the said Joe Pinkney, was about to attack him and inflict death or serious bodily injury upon him, you are charged that defendant had the right to shoot the said Joe Pinkney and continue to shoot him as long as such danger, or apparent danger, if any, continued; and, although you may believe that deceased retreated, defendant had the right to pursue and to continue shooting until such danger, real or apparent, viewed from the standpoint of defendant at the time, from all the facts and surrounding circumstances. had ceased to exist.”

This was certainly as favorable to defendant as the record authorized, for the facts show that after the first shot, at least, deceased fled, running through a store; that defendant pursued him and shot at deceased Just as he entered the store door, and shot at him again as he fled out at the back door, and once more back of the store, where deceased fell and expired.

The special charge refused presented the issue of self-defense from threats, etc. As the record shows there were no antecedent threats, but the threats, if any, were made during the difficulty which culminated in the fatal shooting. This did not call for a charge on threats, and the court did not err in refusing the special charge presenting that issue. Armstrong v. State, 50 Tex. Cr. R. 26, 96 S. W. 15; Hancock v. State, 47 Tex. Cr. R. 3, 83 S. W. 696; Dobbs v. State, 54 Tex. Cr. R. 552, 113 S. W. 923; Davis v. State, 52 Tex. Cr. R. 149, 106 S. W. 144.

The judgment is affirmed. 
      <@=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     