
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 24, 1912.)
    1. Homicide (§ 310) — -Assault with Intent to Kilj>-Aggravated Assault — Evidence —Instructions.
    Where, on a trial for assault with intent to murder, the evidence showed that accused slopped prosecutor in the face several times, and threatened to bring his gun and blow his brains out, and that accused in about 15 minutes returned armed with a gun and shot prosecutor in the breast, the issue of aggravated assault was not raised.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    2. Homicide (§ 300) — Assault with Intent to Murder — Self-Defense—Instructions.
    An instruction on self-defense, on a trial of assault with intent to murder, that if from the acts of prosecutor, or from his words coupled with his acts, there was created in the mind of accused a reasonable apprehension that he was in danger* of losing his life or of suffering serious bodily harm at the hands of prosecutor, accused could defend himself from clanger, or apparent danger, as it reasonably appeared to him at the time, viewed from his standpoint, etc., fairly represented the issue.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.]
    3. Criminal Law (§ 1090) — Appeal—Record — Bill of Exceptions — Organization of Grand Jury.
    In the absence of a bill of exceptions, questions involving the organization of the grand jury are not reviewable on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2807; Dec. Dig. § 1090.]
    Appeal from District Court, Orange County; W. B. Powell, Judge.
    Henry Smith was convicted of assault with intent to murder, and he appeals. Affirmed.
    
      Bisland & Adams, for appellant. O. E. Lane, Asst. Atty. Gen., for ttie State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   HARPER, J.

Appellant was indicted, charged with assault to murder, was convicted, and his punishment assessed at three years in the penitentiary.

Appellant insists that the court erred in not submitting the issue of aggravated assault. Boh Williams, the alleged injured party, testified: “There was a big gang of us, and we came along the road, and he stopped me and Henry, and a big gang of us stopped by Jo Perry’s, and he said, ‘Have you got some money?’ Henry Smith said that to me. I said, T don’t want your money,’ and he said, ‘You have got to taire it.’ X said I didn’t want it, and he said I had to take it, and he hauled off and hit me in the face two times—hit me with his hand; just slapped me in the face. He slapped me two times. X said, ‘What do you want to slap me for?’ and he slapped me again, and I started towards him, and he said, ‘You stay here until I come back, and I will bring a gun and blow your damn brains out,’ and he started home, and was gone about 15 minutes. He said, T will kill you wherever I see you;’ and as I was coming out of the house I saw him, and I saw X would have to take a chance and he saw me when I got behind the bushes, and he shot me with a .38 or .40, I think it was—just shot me one time —and hit me right -here in the breast on the left side. 1-Ie just shot me once, and the ball went in here, and came out back under my shoulder. After he shot me, I went at him.” This witness is corroborated by the other witnesses for the state in the fact that he was not doing anything to appellant at the time he was shot.

Appellant’s version presents self-defense, but states no act or conduct that would reduce the offense, if he was guilty of any offense, to an aggravated assault, and on the question of self-defense the court charged the jury: “Upon the law of self-defense you are instructed that if from the acts of the said Bob Williams, or from his words coupled with his acts, there was created in the mind of the defendant a reasonable apprehension that he (the defendant) was in danger of losing his life or of suffering serious bodily harm at the hands of said Bob Williams, then the defendant had the right to defend himself from such danger, or apparent danger, as it reasonably appeared to him at the time, viewed from his standpoint. And a party so unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant. If you believe that the defendant committed the assault as a means of defense, believing at the time he did so (if he did do so) that he was in danger of losing his life or of serious bodily injury at the hands of said Bob Williams, then you will acquit the defendant; and if you have a reasonable doubt as to whether or not the defendant acted in self-defense at the time he shot the said Williams, you will give him the benefit of such doubt, and find him not guilty.” This charge is not subject to the criticism contained in the motion for a new trial, and fairly presented the question under the evidence.

The question of the organization of the grand jury is not presented in a way that we can consider it, there being no bill of exceptions in the record. However, if it were presented, it seems that the grand jury was organized under and in accordance with the provisions of article 387 of the Code of Criminal Procedure of 1895.

Judgment affirmed.  