Conviction is for manslaughter with an assessed punishment of four years in the penitentiary.
No statement of facts appears in the record, and the only exceptions are to certain paragraphs of the charge. In many instances the exceptions are qualified by a statement from the learned trial judge that he altered his charge to conform to the suggestions of counsel for appellant.
We find an exception to subdivisions five and six of the eighth paragraph of the charge on the ground, (a) that they are upon the weight of the evidence, (b) that the facts form no basis authorizing the court to submit them, and, (c) that they are misleading, for that the jury might conclude therefrom that in the opinion of the court the defendant by his own wrongful act produced a condition wherein it became necessary for his safety that he take the life of deceased. It needs only to set out the objections to make it apparent that this court cannot appraise such exceptions in the absence of knowledge of what facts were in evidence.
It is argued both orally and by brief filed that the court having charged on provoking the difficulty should also have charged the converse. Subdivision six of paragraph eight does present the converse. No exception was taken to it further than as indicated above. If appellant was dissatisfied with the language of it he should have presented exceptions sufficiently specific to call the trial court's attention to his complaint, or have requested a special charge amplifying it if he thought it necessary to do so. He did neither, and cannot be heard to complain at this late hour. Articles 737a, 743 C.C.P.; Rodgers v. State, 93 Tex.Crim. Rep., 245 S.W. Rep., 697; Richardson v. State, 91 Tex.Crim. Rep., 239 S.W. Rep., 218; Littleton v. State, 91 Tex.Crim. Rep., 239 S.W. Rep., 202; Jordan v. State, 91 Tex.Crim. Rep., 238 S.W. Rep., 1113.
The judgment is affirmed.
Affirmed. *Page 598
ON REHEARING. November 7, 1923.