Appellant was given three years in the penitentiary on a conviction of manslaughter. He insists that the court erred in charging upon the law of manslaughter, and complains of the following portion of the charge in defining manslaughter, to wit: "The following are deemed adequate causes: An assault and battery by the deceased raising in the mind of the defendant a reasonable apprehension or fear of pain or bloodshed, etc." The criticism being that there was no evidence warranting a charge upon that issue. Appellant in his own testimony states, "Deceased stated to me, `What are you going to do about that mule?' I said, `I've done all that is fair, and I am not going to do anything.' He reached down, and got a bottle with his right hand, caught me around the neck with his left hand, raised the bottle up, and says, `You will do something,' and at that time I had my pistol in my belt in front of me. I just pulled it out, and put the pistol to deceased's side. Then he said, `I will cave your head in.' I then shot deceased. Deceased had a bottle in his right hand, had the bottle by the neck with the big end raised about as high as his head, and had his left arm around my neck." Both parties were sitting in a buggy together and were drinking. This evidence clearly shows an assault. Furthermore the evidence shows the parties had been quarreling about a mule and were quarreling just before the shooting occurred. The circumstances clearly raise the issue of manslaughter.
The charge of the court upon self-defense is also criticised. A careful perusal of the same shows that it presents both actual and apparent danger, and the court charged the reasonable doubt, in connection with every possible phase, in favor of the appellant. There is no error in this record. The verdict of the jury is warranted by the evidence. The judgment is affirmed.
Affirmed. *Page 329