Conviction for murder; punishment, ten years in the penitentiary. *Page 94
There are four bills of exceptions in the record, none of which can be considered by us because same were filed too late. Appellant's motion for new trial was overruled on July 24, 1936, and the trial term of the court below adjourned on July 25th of said month. The bills of exceptions referred to were filed October 7th. No order was made by the trial court during the term of trial granting to appellant any greater length of time than that allowed by statute, which time, according to the provisions of Art. 760, C. C. P., is thirty days from date of adjournment of court. We find in the record a written request of date October 6th asking the court to enter an order allowing appellant eighty days in which to file his bills of exceptions. On the 7th of October the court made the order requested. We find no supported claim of the proposition that there was any order made during the trial term, and the statute upon the question, and the decisions following same, are uniform and clear. We can not consider said bills of exceptions.
The facts seem to amply justify the jury's conclusion of guilt, and to warrant the infliction of the punishment given. Appellant made a written statement, after being duly warned in accordance with our statute, in which he admitted that he shot deceased with a shot gun loaded with buckshot, through a screen door, and that when deceased turned and fell on the porch appellant opened the screened door, stepped outside and shot him again with another load of buckshot. Appellant took the witness stand at the trial and testified that he was afraid deceased was going to execute a threat and cut off his head with an axe. He was not clear as to whether deceased had any axe in his hand or not at the time of the killing, and the axe had by deceased, on the occasion in question, was found by witnesses some distance away from the house, and at a point where it could not have been gotten after deceased had been shot by appellant.
The court charged fully upon self-defense and apparent danger, and threats, etc. We find in the record no exceptions to the charge of the court, but appellant requested four special charges.
The court certifies on special charge No. 1 that it was not presented to him after the close of the testimony and before the giving of his charge to the jury. The court also makes the same notation upon the second requested charge. Requested charge No. 3 sought to have the jury told, in effect, that they should acquit if they believed from the evidence that, at the time of the alleged killing, deceased was in the act of entering the home of *Page 95 defendant, or if he was attempting to enter the home of defendant unlawfully. We find nothing in this record justifying any theory of a killing for the purpose of preventing injury to property of any kind. Appellant's testimony was, in effect, that he thought deceased was coming in his house to kill him with the axe, and his rights were fully protected upon such theory. In the absence of any testimony calling for a charge on defense of habitation, we are unable to see any need for giving said charge No. 3.
Appellant sought by another special charge to have the jury instructed on the law of circumstantial evidence. We find nothing at all in the record supporting any idea that proof of the killing was circumstantial. Appellant in his confession admitted that he killed deceased.
Not being able to agree with any of the propositions advanced by the accused, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.