The appellant was tried and convicted of the offense of murder, and his punishment was assessed at confinement in the State penitentiary for a term of five years.
The testimony adduced by the State shows that on the afternoon of December 2, 1933, the appellant went to the home of deceased and without any apparent cause or provocation shot the deceased twice with a pistol, killing him almost instantly. The appellant's testimony shows that on the afternoon of said date he was informed by Charlie Robbins that Luther Blair, an uncle of the appellant, and deceased, Jim Baker, had been, to the home of Robbins and asked him for some whisky; that he, Robbins, did not give them any whisky as he had none. From Robbins' home they went in Luther Blair's car to the home of deceased. The appellant, who was city marshall of the town of Killeen, immediately went to the home of Jim Baker where he found his uncle, Luther Blair, and deceased, Jim Baker, sitting on a bed. He asked his uncle to leave and go home, whereupon deceased cursed him and struck him with his fist *Page 270 and was making an attack upon him with an open knife as he (appellant) was in the act of leaving the home of deceased; that from the acts, conduct and demonstrations of deceased he, the appellant, believed he was in danger of death or serious bodily injury at the hands of deceased which prompted him to shoot in self-defense. The appellant then left the home of deceased and summoned a physician who immediately went to the home of deceased and found the body on the floor in his home; that there was no knife in the hands of deceased or near his person. Deceased was a man about 70 years of age and weighed about 135 or 140 pounds, while the appellant was 40 years of age, six feet two inches in height, and weighed 180 to 190 pounds.
The appellant's first complaint is that the court erred in overruling his objections to the court's main charge. Without discussing each of the objections in detail, we deem it sufficient to state that we have considered all of them in connection with the charge mentioned and reach the conclusion that the charge of the court is not subject to the objections addressed to it.
The appellant's next complaint is that the court erred in declining to submit to the jury his requested special instructions. We have examined each of said requested instructions and reach the conclusion that the court did not err in declining to submit same to the jury because some of them contained but abstract propositions of law and others were not justified by any testimony.
The court adequately instructed the jury upon the appellant's theory of self-defense without any limitation or restriction of provoking a difficulty or otherwise.
No reversible error appearing in the record, the judgment (of the trial court is in all things affirmed.
Affirmed.
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