
    SMITH v. STATE.
    (No. 9828.)
    (Court of Criminal Appeals of Texas.
    March 17, 1926.
    Rehearing Denied June 25, 1926.)
    I. Criminal law <&wkey;l 111 (3) — Bill of exception complaining of special prosecutor’s argument - held to show no error, in view of trial judge’s qualification thereof.
    Bill of exception complaining of argument of special prosecutor held not to show error, in view of qualification by trial court that no exception was made to remarks, nor was court’s attention called thereto at the time.
    On Motion for Rehearing.
    2., Criminal law &wkey;>l 129(3).
    Assignment of error complaining of argument of prosecutor must state that it was not a legitimate deduction from facts.
    3. Criminal law &wkey;5829(2l) — Failure to charge on aggravated assault on theory of abandonment of difficuity before killing held not error, in' view of instruction given (Vernon’s Ann. Code Cr. Proc. 1916, art. 743).
    'Where court charged that if, after difficulty between defendant and deceased, defendant’s companions followed and killed deceased, then to acquit defendant unless he aided or encouraged killing, held that there was no error, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 743, in refusal of charge on aggravated assault on theory that defendant abandoned difficulty before the shooting.
    Commissioners’ Decision.
    Appeal from District Court, Ellis County; W. L. Harding, Judge.
    Ernest Smith was convicted of manslaughter, and be appeals.
    Affirmed.
    Tom P. Whipple, of Waxahachie, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is manslaughter, and the punishment is three years in the penitentiary. The state’s testimony shows that John Smith, Pete Shipp, and the appellant engaged the deceased in a difficulty, and in said difficulty he received knife wounds from which he died.

The bill of exception contained in the record to the argument of the special prosecutor is insufficient to show any error. It is also qualified by the trial court with the statement that no exception was made to the remark during the argument, and that the attention of the court was not called to the matter at the time.

There are various exceptions to the court’s charge found in the record, but we think none of these present any error. The third of these exceptions complains at the court’s action in refusing to charge on aggravated assault. Said exception is predicated upon the following proposition:

“If the jury believed the contention of the state that the gun that was discharged in the first difficulty was the property of the defendant, Ernest Smith, and that the defendant attempted to shoot the deceased, but did not succeed, and that fact is uncontroverted that he did not shoot him, the deceased, and that after such attempt he, the defendant, abandoned the difficulty and was not acting with John Smith and Pete Shipp when they pursued the deceased and killed him, if they did, defendant could not be convicted of a greater offense than an aggravated assault and the court should have so charged.”

We think the court was correct in not giving a charge to this effect, for even under the circumstances detailed in the exception to the charge we think that the appellant might have been guilty of an assault with intent to murder. It is also true, however, that the court did instruct the jury at the request of the appellant as follows:

“If you believe from the evidence that Ernest Smith and the deceased, Buddy Joe Pitts, became involved in a personal difficulty, and that John Smith and Pete Shipp took part therein, and that defendant, Ernest Smith, did not in any way encourage or aid the said John Smith and Pete Shipp to take part therein, and that after this first difficulty deceased went in one direction and defendant, Ernest Smith, in the other, and you further believe that afterwards John Smith and Pete Shipp followed the deceased and killed him, you will acquit the defendant, Ernest Smith, unless you believe beyond a reasonable doubt that Ernest Smith aided or encouraged John Smith and Pete Shipp to follow and kill deceased.”

We think this charge presented appellant’s theory of the case in as favorable a light as he could have possibly asked. We are satisfied that in no event would we be justified in reversing the case because of the court’s failure to charge on aggravated assault. We think that we are precluded from doing so by the terms of article 743 of Vernon’s O. C. P. J.916.

Finding no error in the record, the judgment is in all things affirmed.

PER OTJRIAM. •

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

There is but one bill of exceptions in this record. Its complaint is of argument. While the bill of exceptions is approved by the trial court with the qualification that no objection was made to the argument at the time and no instruction was ashed that the jury be fold not to consider same, as stated in our original opinion, we also note there is no statement that said argument was not a legitimate deduction from, facts before the jury.

We have carefully reviewed the facts with a view of determining whether we correctly held that there was no need for a charge on aggravated assault. We have concluded that the facts do not demand such a charge. The court gave a special charge asked by appellant which seems to us to present with fair accuracy and fullness the affirmative defensive theory.

The motion for rehearing will be overruled. 
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