
    BUSSEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Homicide (§ 310) — Instbuctions — “AGGRAVATED Assault.”
    On a trial for assault with intent to murder, where the state’s evidence showed a deliberate and willful assault with a shotgun within a distance of only 12 to 15 feet, while accused testified that he shot solely in self-defense and did not testify that he did not intend to kill the party assaulted, the court .properly refused to submit aggravated assault under Pen. Code 1911, art. 1022, subd. 7, providing that an assault becomes aggravated when a serious bodily injury is inflicted upon the person assaulted, or subdivision 8, providing that an assault is aggravated when committed with deadly weapons, under circumstances not amounting to an intention to murder or maim, since the evidence showed an assault with a deadly weapon in such a way as to show an intention to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661;. Dee. Dig. § 310.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 270, 271.]
    2. Criminal Law (§ 822) — Instructions— Construction as a Whole.
    In determining whether the charge is erroneous, it must always be taken as a whole.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig-. § 822.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Douglass Bussey was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Stephen Chamness, of Tempson, and Carter & Walker, of Center, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of an assault with intent to murder, and his punishment fixed at two years in the penitentiary. This is the second appeal in this case. The first is reported in 153 S. W. 874.

Appellant’s main contention now is, and he so contended on the other appeal, that the court should have submitted aggravated assault under subdivisions 7 and 8 of article 1022, Pen. Code 1911. We have again carefully considered the evidence on this appeal. It is in no way substantially different from what it was on the other appeal. In fact, it is substantially the same on this point. We are still of the opinion that the court should not have submitted aggravated assault under either of the subdivisions of said article, as contended by appellant. See the opinion on the other appeal and the cases therein cited. The evidence shows, from the state’s standpoint, that the appellant deliberately and willfully shot the assaulted party with a shotgun, which was a deadly weapon, within a very short distance — only 12 to 15 feet distant. His side would show self-defense, and that only, and the court properly submitted that; the jury finding against him. The appellant in no way testified that he did not intend to kill the assaulted party, but in effect testified that he shot at him solely and only to defend himself, in self-defense. We think the line of eases cited and relied upon by appellant are not in point, because in those cases the assaults were usually committed with an ordinary pocketknife or with such an instrument as was not necessarily a deadly weapon, and, in effect, the testimony in those cases showed, or raised the question, that the injuries inflicted were inflicted without any intention of killing. This case comes under that line of decisions cited in the opinion on the other appeal, which are to the effect that the assault was inflicted with a deadly weapon in such way as to show an intention to kill, and without showing or tending to show that there was no intention to kill.

Appellant' complains at that part of the court’s charge defining sudden passion, and what was necessary and proper to be considered in determining whether the assault was committed with sudden passion, «etc., to the effect that the charge makes no reference on this subject to aggravated assault, but claims that it tends rather to be applicable to the charge on self-defense only. We think the appellant’s contention is not borne out at all by the record, but that, to take the charge as a whole, which must always be done, it of and within itself shows that it was intended to apply, and does apply, to the charge on aggravated assault, and has no application to the charge on self-defense.

Neither is appellant’s criticism of a portion of the court’s charge on the ground of threats correct, his contention being that by this portion of the court’s charge he limited it to the consideration of the charge of an assault with intent to murder, and does not permit it to be considered with reference to his charge on aggravated assault. Clearly we think the charge is not restricted, as appellant contends, but embraces wholly and fully both offenses — assault with intent to murder and aggravated assault — and the jury could not have otherwise understood.

The evidence was clearly sufficient to sustain the verdict, and appellant’s contention that it was wholly insufficient to sustain an assault with intent to murder, and that it was only sufficient to sustain an aggravated assault, is untenable. There being no reversible error, the judgment is affirmed.  