Appellant was prosecuted and convicted of making an assault on O.M. Chasteen with intent to kill him, and his punishment assessed at two years confinement in the State penitentiary.
There is a sharp conflict in the testimony, the defendant's theory being that Chasteen is guilty of assault to murder him, and that one Butler was acting with Chasteen. It appears that the shooting took place in Chasteen's restaurant in the town of DeKalb; that on the east side of the room a counter extended back some thirty-five or forty feet; at the north end thereof the counter elbowed to the west and extended west about two-thirds of the way across the room; just back of this counter a curtain was hung, and is thus described by a witness: "It was made out of cheap five cents a yard cloth, and was very thin; it was not sewed together; a rope run from one side to the other, and the end of the cloth was thrown over the rope and pinned; it was in strips about eighteen inches wide and hung from the rope to the floor, the strips not being sewed together, but hanging loose." Witness said it at times stood open. This description is placed in the opinion as appellant thinks this cloth partition material in the case. O.M. Chasteen, the chief prosecuting witness, testified, that near dark the night of the shooting, appellant, Fount Martin, with two boys took their seats at the counter and ate a meal; that while the three were eating appellant's brother, Newt Martin, was in front of the restaurant, and called one of the boys; that when this happened a conversation ensued in which appellant talked to him in a very offensive and insulting way (the language being such we do not care to embrace it in the opinion) and said that Newt Martin was mad at appellant and was going to whip the witness (Chasteen); that if he did not do it he, appellant, could do it, when witness replied then was as good a time as any; witness says when appellant went to leave the restaurant with the boys he remarked to witness, "I will see you again." That he was called out of the restaurant and was absent several minutes, and while out his clerk came to him and told him that appellant had returned to the restaurant with a shotgun and asked for him, Chasteen. That this frightened him and he went or sent for a shotgun and pistol, and sent for the constable; that when the constable came he told him the circumstances, and returned to the restaurant, placing the pistol on the shelf behind the counter, and carried the gun with him to a point near a gas stove and set it down, and then began to fry some oysters; that he was standing just behind the curtain near the stove when a gun was fired, three shots striking him in the shoulder; that he looked and saw appellant standing just inside the front door, and got his gun and shot at appellant, firing through the hole made to pass dishes through; that *Page 523 appellant fired at him again, and he returned the fire, when appellant walked out of the restaurant.
Appellant testified and stated he and the boys did go in the restaurant and eat; that a conversation did come up about his brother Newt, but says he did not use the language attributed to him by Chasteen, but his version is that he stated the reason his brother Newt did not come in, that he (Newt) was angry about appellant trying to get some heirs to sue him as administrator of an estate. Some other conversation ensued, and that as he got up to leave, Chasteen, the State's witness, got a pistol and said, "You get out of here, you G__d d__n s__n of a b__h and stay out." That this made him angry, but he left. That he went to the store of Ralph Burns and told Burns about what Chasteen had called him and admitted asking Burns for a gun, but denies he told Burns he was going to kill Chasteen; he also went to the store of Clint Smith and tried to get a gun, but failed at both places. By this time says he had got cool and went back to Chasteen's restaurant to make friends with him, and had no gun on this trip. However, Powell and Vineyard say he did have a gun on this trip to the restaurant. Appellant says when he did not find Chasteen in the restaurant he left and went to the hardware store and purchased a gun and some shells from Ollie Burns, saying he intended the gun for his nephew. The gun was in fact charged to Newt Martin. After leaving the hardware store he was approached by some one whom he took to be Powell, who stated that Chasteen wanted to see him, appellant, and he returned to the restaurant. (Powell denies approaching appellant.) When he got to the restaurant he had the gun in his right hand pointing down; that the constable was present and approached him, attracted his attention, and as he did so the constable called to Chasteen, "Shoot him," when he was shot at by Chasteen. That while his, appellant's gun was then fired, it went off accidentally, with no intention on his part to shoot. That these were all the shots fired. In his statement that only two shots were fired he is supported by Swinney and Welch, who say that a train had just come in and they were at the depot some seventy-five yards distant and heard only two shots. On the other hand Chasteen is supported by his statement that four shots were fired by Powell, who states he was in the restaurant, and says he thinks five shots were fired. It is further shown by all the testimony that Chasteen fired at least one shot, and appellant's gun had two empty shells in it, he stating he supposed both barrels went off at once when the gun was unintentionally discharged.
Appellant introduced three witnesses who testified they had examined the cloth curtain and they found no shot holes in it, Swinney, Burnett and Morrell, placing them in position to make an investigation in this matter. Some of them say they found dents in the stove pipe and some holes in the tin part, yet they did not think they had been made by shot, it being appellant's contention that Chasteen had made these holes and indentations with a nail. Powell said he had never examined *Page 524 the curtain, but the holes in the tin work on the stove were shot holes and were made he says when appellant shot at Chasteen. He was in the restaurant at the time of the shooting and corroborates Chasteen in his testimony almost in its entirety. Standberry and others corroborate Chasteen when he says that when appellant left just after eating his supper he remarked, "I will see you later," and say that Chasteen did not draw a pistol on appellant at this time as testified to by appellant, Powell saying further that he stayed in the restaurant and there was no pistol there at that time. Powell also testifies that when appellant came in the second time with the gun, he went and told Chasteen about it, and Chasteen did send for the constable. It was at this time he got the guns and brought them to the restaurant. The State further showed by Ralph Burns that when appellant first left the restaurant, he came to his store, asked for a gun, and told him he was going to kill Chasteen, saying Chasteen had called him a son of a b__h and he was not going to take it; that he returned in about ten minutes, and then had a shotgun, and repeated that he was going to kill Chasteen, and while he, Burns, did not hear the shooting, he learned of it within fifteen minutes of this time. Smith testified that appellant came to him to borrow a gun, but did not get it, and did not say what he wanted with it, but did tell him that Chasteen had called him a son of a b__h and threw a gun on him, and it was hard to take. Ollie Burns testified that shortly after dark appellant came into the hardware store and purchased a gun and some shells of No. 8 shot.
We have stated the testimony extensively as one of the main contentions of appellant is that the testimony will not support the conviction, contending that at the distance the gun was fired holes would have been prominent in the curtain that all could have seen. It may be said that testimony predominates in favor of the contention that there were no holes in the curtain, yet Chasteen swears that there were small shot holes in it, and he and Powell state conditions that it would have been probable for the gun to have been fired and create no holes in the curtain, they saying it was hanging down in strips, unsewed, and frequently one flap would stand apart. We are of the opinion that the testimony will sustain the verdict of the jury; and this was evidently the opinion of the trial judge who overruled the motion, and we would not feel justified in reversing the judgment on this ground, for if the State's testimony is to be believed, he left the restaurant saying to Chasteen he would see him later, goes to Smith's and Burns and tries to borrow a gun, telling Burns he was going to kill Chasteen. Failing to borrow a gun, he goes to Ollie Burns, buys a gun and returns to Ralph Burns with the gun, repeating that he is going to kill Chasteen; goes into the restaurant and asks for Chasteen; failing to find him, he leaves, but returns again, when the shooting occurs, Chasteen saying appellant shot at him when he did not even know he was in the restaurant. Powell corroborates Chasteen in saying that appellant fired at Chasteen twice, and appellant's gun showed two empty shells. *Page 525
Appellant's next main contention is that the court erred in failing to charge on self-defense. The State's case would make a plain case of assault to murder, there being no suggestion in the testimony that appellant may have acted in defense of actual or apparent danger, when the State's witnesses say he fired the shot. Appellant introduced no witness, other than himself, who witnessed the shooting, and if self-defense is raised it must be by his testimony. If it raises or suggests it, then it would have been proper for that issue to have been submitted. He testified, as hereinbefore stated, and as bearing on this direct issue at the time he returned to the restaurant: That he had gotten in a good humor; that he received a message from Chasteen and went in obedience to that request; he saw Constable Butler standing at the end of the counter, and Butler commenced to knock on the counter; he started to sit down on a stool when Butler said, "Hello, Fount," and walked by him, and opened the door, and called appellant; that as he turned Butler said, "Shoot him, Orren," Chasteen being named Orren, when Chasteen shot him, thirty or forty shot hitting the gun; that he grabbed the gun with his left hand and it fired. That he does not know whether one or both barrels went off. That he did not shoot at Orren Chasteen, and did not intentionally shoot the gun. That he went in the restaurant with the intention of making friends. This is putting the matter in the strongest light for defendant. He says his gun went off accidentally; that he did not shoot at Chasteen, and if this is true, he would be entitled to an acquittal, but not on the ground of self-defense, but on accidental and unintentional shooting. Self-defense is where a man does some act on the ground that he is in actual or apparent danger. Appellant says he intentionally did no act to defend himself against the shot he says Chasteen fired at him, but his gun accidentally went off, and we are of the opinion the court did not err in failing to charge on self-defense, nor in refusing to give the special charges presenting that issue. We agree that the law is that if the evidence for the State, or the evidence offered in behalf of the defendant, or the evidence taken as a whole, raises the issue of self-defense, or any other defensive issue, it should be submitted to the jury in the charge, but in this case the State's evidence shows a deadly assault when Chasteen was doing nothing. The defendant's testimony shows an accidental discharge of the gun, and there is no testimony that Chasteen fired first, and then appellant intentionally shot at Chasteen, believing his life was in danger. He says he did not do this. The court charged the jury: "The defendant claims that the firing of the gun that he had was accidental. Now if you believe from the testimony, or have a reasonable doubt that the defendant's gun was accidentally fired you will find the defendant `not guilty.'" This presented the issue as made by his testimony, and there is no complaint of this paragraph of the charge, — the complaint being that it was error to fail to charge on self-defense. The court also charged the jury: "If you believe from the testimony, or have a reasonable doubt that the *Page 526 defendant, Fount Martin, went into the restaurant of the alleged injured party upon a peaceful mission and for the purpose of making friends, then you will find him not guilty." The complaint of this paragraph is that it limited appellant's right of self-defense. If the testimony raised the issue of self-defense, there would perhaps be merit in this contention, but as we hold the court did not err in holding that the evidence did not raise the issue of self-defense, this paragraph would, if anything, be more favorable to defendant than was called for. The defendant had testified he went into the restaurant to make friends with Chasteen, and in this paragraph the court tells the jury if they find this true, or have a reasonable doubt of its being true, to acquit defendant, regardless of what he did or did not do, after getting in the restaurant. Under this charge, to have convicted the defendant, the jury must have found that appellant went and got the gun and returned to the restaurant with the intent to carry into execution the threat he made to Burns — to kill Chasteen. However, this character of charge was approved in Puryear v. State, 56 Tex.Crim. Rep..
Appellant has three bills of exceptions, all relating to that portion of the testimony of Orren Chasteen, P.M. Powell and S.M. Standberry, in which they testify about the wordy altercation occurring between appellant and Chasteen, in which Chasteen testified appellant used insulting language to him and left with the threat that he would see him later, and about which appellant testifies that at the close of it Chasteen secured a pistol, cursed him and told him to get out of his restaurant. It is apparent from the entire record, regardless of whether the State's theory or the defendant's theory is the correct one, that it is this altercation out of which the subsequent hostilities and shooting grew, and there was no error in admitting the testimony.
We have carefully reviewed each and every ground in the motion for new trial, and while not writing on each of them, but rather treating some of them collectively, none of them present any error.
The judgment is affirmed.
Affirmed.