
    TYLER v. STATE.
    (Court of Criminal Appeals of Texas.
    June 28, 1912.)
    1. Ceiminal Law (§ 1090) — Appeal—Review — Denial on Continuance — Bill oe Exceptions.
    A denial of a continuance cannot be reviewed, in the absence of a bill of exceptions reserved,
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Law (§ 814) — 'Tbiaj>-Instruc-tions — Applicability to Evidence.
    Where defendant admitted that, when the first altercation between himself and deceased occurred, deceased’s father, instead of being in a conspiracy to kill defendant, or do him any harm, caused deceased to leave, and thereafter had a pleasant conversation with defendant, the evidence did not raise an issue of conspiracy to injure defendant, so as to require an instruction on that subject.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-19S5, 1987; Dec. Dig. § 814.]
    3. Homicide (§ 309) — Manslaughter — Instructions.
    Where the court charged that it was the jury’s duty to consider all the facts and circumstances in evidence in determining the condition of defendant’s mind at the time of the homicide, that any condition or circumstance which was capable of creating and did create sudden passion, etc., whether accompanied by bodily pain or not, would be adequate cause, etc., the court sufficiently charged on manslaughter.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.]
    4. Homicide (§ 254) — Second Degree-Murder — Evidence.
    Evidence held to justify a conviction of murder in the second degree.
    [Ed. Note. — Por other cases, see Homicide. Cent. Dig. §§ 533-538; Dec. Dig. § 254.]
    Appeal from District Court, Madison County; S. W. Dean, Judge.
    El Tyler was convicted of murder in the second degree, and he appeals.
    Affirmed..
    Carl T. Harper, of Anderson, for appellant C. E. Lane, Asst. Atty. Gen., for the-State.
    
      
      For other c'ases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at ten years’ confinement in the penitentiary.

The grounds alleged in the first and fourth grounds of the motion for a new trial, relating to overruling the application for a continuance and admitting certain testimony, cannot be considered; no bills of exception being reserved, at least none appear in the record.

The fifth ground complains of the failure of the court to charge on conspiracy. There is nothing in the evidence to suggest any conspiracy to do appellant any harm. Appellant admits, if his version is correct, that, when the first altercation occurred between him and deceased, the father of deceased, instead of being in a conspiracy to kill him, or do him any harm, caused deceased to leave, and that he then had a pleasant conversation with him.

Appellant complains in the motion for new trial of the charge on manslaughter, claiming: “The court committed material error in omitting to further charge the law of manslaughter — that there was evidence-adduced upon the trial establishing the fact of a former difficulty between the deceased and defendant, and the court should have instructed the jury to consider the facts, surrounding and connected with such former difficulty.” The court did so instruct the jury, telling them it was their duty to consider all the facts and circumstances in evidence in determining the condition of appellant’s mind at the time of the homicide, further telling them “that any condition or circumstance which is capable of ere-, ating and does create sudden passion, such as anger, etc., whether accompanied by bod-. ily pain -or not, would be adequate cause.” In this case there are no antecedent threats. It appears deceased had heard of a remark alleged to have been made by appellant, and according to appellant’s testimony deceased cursed him. Deceased’s father made him go to the field. Appellant also left, going to his home, and when he got there he armed himself with a shotgun. He testifies he got the shotgun because he was informed there was some stock in the field. He again appeared near the residence of deceased’s father, when he says the prior altercation was renewed, and deceased again cursed him, applying to him very vile epithets. He states, further, that deceased stooped down and picked up a large-sized rock and drew it back, starting towards him, when he shot and killed him. He also says that, at the time deceased drew back the rock, deceased’s father put his hand in his bosom as if to draw a weapon. The court instructed the jury that if it reasonably appeared to defendant that deceased had attacked him with a rock, or had made demonstrations as if he were about to throw a rock, and it reasonably appeared to defendant, viewing it from his standpoint, he was in danger of death or serious bodily injury, he should be acquitted. He also instructed the jury that if the father of deceased had made a demonstration as if to draw a weapon, and it reasonably appeared to defendant that the father and son were acting together, and it reasonably appeared to him that he was in danger of suffering death or serious bodily injury at the hands of the said father and son, or either of them, he should be acquitted. The charge was as favorable as the evidence justified, in fact, if not more so.

The evidence for the state would have defendant going home, getting his gun, returning, raising the difficulty, and after a few words, shooting him while deceased was stooping down, with his side toward appellant. The shot did enter his side. This fully supports the verdict of the jury. Defendant would have deceased raising the' difficulty, and cursing appellant, although appellant was armed with a shotgun, stooping down and picking up a rock, and drawing back as if to throw it; and this the charge of the court instructs the jury would, if true, justify defendant in slaying deceased. The jury finds against appellant’s contention.

The judgment is affirmed.  