
    RIOS v. STATE.
    No. 22812.
    Court of Criminal Appeals of Texas.
    March 20, 1944.
    P. E. Campbell, of Seguin, and P. C. Ibarra, of San Antonio, for appellant.
    Ernest S. Goens, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of an assault to murder without malice, and given a term of two and one-half years in the peni-' tentiary.

This is a companion case to cause No. 22811, Rios v. State, 180 S.W.2d 439, and the facts are practically the same in that case, to which we refer, save as to who fired a shot with a pistol. In this case appellant himself testified that he fired the shot in order to scare some negroes who were threatening to attack him; that he shot up in the air and at no one, and he also denied that soon thereafter he pointed this pistol at another negro, about half a block away, who had seen the difficulty.

The only bill of exceptions complains of allowing .the introduction of the testimony relative .to the pointing of the pistol at the negro located a half block away from where the shooting occurred. This negro man testified that he saw the difficulty and tried to catch the number of the car in which appellant and his brother left the scene, but only got the first two numbers thereof. This appeared to be immediately after the shooting, and as appellant and his brother were leaving the scene, and we think same was a part of the res gestae of the transaction, as suggested by the trial court in his qualification to the bill, and as held in the companion case, our No. 22811.

The trial court charged the jury on the law of an assault to murder without malice, as well as on aggravated assault and self-defense, and we find no objections to the charge in the record.

No error being shown, the judgment is affirmed.  