The offense is murder; the punishment, confinement in the penitentiary for life.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Augustine Salas by shooting him with a pistol.
The homicide occurred in the place of business of Ignacio Salas on the 17th of December, 1934. According to the testimony of the State, appellant provoked a difficulty with one of Ignacio's customers. Deceased, who was the brother of Ignacio, demurred and ordered appellant out of the house. Appellant *Page 271 left but returned in about five or ten minutes armed with a pistol. As he came through the door deceased was standing near a cot on which Ignacio, who was sick, was lying. Without warning, appellant shot deceased. Deceased ran out of the door and fell. Appellant ran after him and shot him while he was down. Appellant then shot twice at Ignacio. It was the further version of the State that neither Ignacio nor deceased were making any demonstration toward appellant at the time of the homicide. Appellant testified that after having an altercation with deceased he left the place but returned in a few minutes for the purpose of advising Ignacio, the proprietor, that he did not want any trouble. He testified further that as he came into the building both deceased and Ignacio fired at him with pistols and that he shot deceased in defense of himself.
It is shown in bill of exception No. 3 that after a witness for appellant had testified that appellant's general reputation as a peaceable and law-abiding citizen was good the witness was asked on cross-examination if he had heard that appellant had gone to the penitentiary from San Marcos on a charge of burglary and theft. He answered in the negative. Appellant then called counsel for the State to the stand and asked him if he knew of his own knowledge that appellant had been convicted of a felony at San Marcos. He answered that he had never seen a copy of the judgment of conviction and had never asked for one. At the request of appellant the court withdrew the question concerning the conviction and instructed the jury not to consider it for any purpose. Counsel for the State then stated in the presence and hearing of the jury that it had been his information that appellant had been convicted, but that he now ascertained it was appellant's brother who had been convicted at San Marcos. Appellant immediately requested the court to instruct the jury not to consider said statement, and the request was complied with. Appellant contends that the information carried to the jury was calculated to prejudice him. We are unable to sustain this contention. The jury were made aware of the fact that counsel for the State had been in error in believing that appellant had theretofore been convicted of a felony. Again, the character witness had testified that he had not heard that appellant had been convicted. Obviously the witness' testimony touching appellant's good reputation was not reflected on by the asking of the question.
Appellant excepted to the charge on self-defense on the *Page 272 ground that it failed to give him the benefit of the reasonable doubt in connection therewith. We think the charge not subject to this criticism. We quote a portion of said charge, as follows:
"Evidence has been offered in this case by the defendant to the effect that the deceased, Augustine Salas, and his brother Ignacio Salas were armed with pistols and were making an attack on him, the defendant, at the time of the killing of the deceased by the defendant; in this connection you are charged that if you find from the evidence that the said Augustine Salas, and his brother, Ignacio Salas, were so armed with pistols at the time of the killing and were making an attack on the defendant, or if it appeared to the defendant at the time that either of them were so doing, viewed solely and alone from his, the defendant's standpoint, or if you have a reasonabledoubt thereof, you will acquit the defendant and say by your verdict 'not guilty.' " (Italics ours).
Other exceptions to the charge are deemed to be without merit.
The judgment is 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.