The offense is manslaughter, and the punishment is three years in the penitentiary.
The state's testimony shows that John Smith, Pete Shipp *Page 617 and the appellant engaged the deceased in a difficulty and in said difficulty he received knife wounds from which he died.
The bill of exception contained in the record to the argument of the special prosecutor is insufficient to show any error. It is also qualified by the trial court with the statement that no exception was made to the remark during the argument and that the attention of the court was not called to the matter at the time.
There are various exceptions to the court's charge found in the record, but we think none of these present any error. The third of these exceptions complains at the court's action in refusing to charge on aggravated assault. Said exception is predicated upon the following proposition:
"If the jury believed the contention of the state that the gun that was discharged in the first difficulty was the property of the defendant, Ernest Smith, and that the defendant attempted to shoot the deceased, but did not succeed, and that fact is uncontroverted, that he did not shoot him, the deceased, and that after such attempt he, the defendant, abandoned the difficulty and was not acting with John Smith and Pete Shipp when they pursued the deceased, and killed him, if they did, defendant could not be convicted of a greater offense than an aggravated assault, and the court should have so charged."
We think the court was correct in not giving a charge to this effect for even under the circumstances detailed in the exception to the charge, we think that the appellant might have been guilty of an assault with intent to murder. It is also true, however, that the court did instruct the jury at the request of the appellant as follows:
"If you believe from the evidence that Ernest Smith and the deceased, Buddy Joe Pitts, became involved in a personal difficulty and that John Smith and Pete Shipp took part therein, and that defendant Ernest Smith did not in any way encourage, or aid the said John Smith and Pete Shipp to take part therein and that after this first difficulty deceased went in one direction and defendant, Ernest Smith, in the other, and you further believe that afterwards John Smith and Pete Shipp followed the deceased and killed him, you will acquit the defendant, Ernest Smith, unless you believe beyond a reasonable doubt that Ernest Smith aided or encouraged John Smith and Pete Shipp to follow and kill deceased."
We think this charge presented appellant's theory of the case in as favorable a light as he could have possibly asked. We *Page 618 are satisfied that in no event would we be justified in reversing the case because of the court's failure to charge on aggravated assault. We think that we are precluded from doing so by the terms of Art. 743 of Vernon's C. C. P.
Finding no error in the record, the judgment 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.