Conviction for murder; punishment, thirty-five years in the penitentiary.
The record contains no bills of exception. There are a number of exceptions to the court’s charge. We find nothing in the very general exception to said charge as being on the weight of the evidence. The charge in the cited case of Best v. State, 58 Texas Crim. Rep., 327, appears altogether different from that herein given, as was also that in Meadow v. State, 94 Texas Crim. Rep., 608, also cited, in which we said that a shooting upon malice aforethought could neither be manslaughter nor in self-defense. Appellant’s right of self-defense was adequately presented in this case as will presently appear.
There was an exception to the charge as an improper limita*390tion upon appellant’s right of self-defense, in that the court gave no instruction upon his right to defend himself against any character of attack. Taylor v. State, 56 S. W. (2d) 646, is cited. In that case, beyond question, it is true that the accused was attacked by deceased and his brother, if at all, only by the use of hands and fists, in which event one having slain his assailant might be heard to claim injury upon his trial if his right of self-defense, as submitted in the charge, be limited to an attack threatening death or serious bodily injury. In other words, the law applicable, is in every case governed by the facts of that particular case. In the case now before us appellant himself swore repeatedly that deceased was attacking him with a knife. We quote: “I shot Ernest Holmes because he was cutting at me with a knife. I believed he intended to kill me with the knife.” In another place he said: “Ernest rushed out with a knife in his hand. He just lunged right into me and we got to scuffling * * * my shirt was nearly torn off me. * * * He struck me once with the knife. * * * If I had been a little closer it would have cut me wide open. * * * I had a gun in my bosom. * * * I pulled the gun out of my bosom and threw it down on Ernest and he slapped at the gun. The first shot went in the mail box, and the second shot hit Ernest Holmes in the side.”
There was in this case no testimony calling for any charge on self-defense against an attack less than deadly. The state’s testimony showed that appellant fired four or five shots at deceased, all save the first, while deceased was trying to get away. Mr. Laughlin swore that he heard a shot which he thought was the back fire of a car. He at once looked out and saw a man running, and another man following him who shot twice more. Laughlin went out and saw deceased on the sidewalk. About the time he got to the door two more shots were fired from a car. Haverson swore that he saw deceased out in front of his store; saw appellant out there also. Heard a shot, and at once looked out. Deceased was about seven feet from appellant. Deceased turned off and appellant shot at him twice. Deceased went on toward the other side of the street. Appellant’s pistol was pointed toward deceased when it was fired. Appellant then got in a car and went in the direction taken by deceased, and witness heard two more shots from the car. Deceased was in his shirt sleeves. Other testimony to the same effect was introduced. Doctors said deceased was shot in his left side, the bullet going through the body perforating the liver and intestines.
*391Appellant was his own only eyewitness. He said the trouble arose over ugly words used by deceased toward a woman who was in a car with appellant, a few moments before the fatal difficulty, and that deceased then also called appellant vile names. He testified that after taking the woman home he and a cousin of his came back to the place of the homicide where deceased renewed the difficulty and attacked appellant with a knife, from which attack he feared deceased would kill him. Neither the woman mentioned nor appellant’s cousin were used as witnesses, nor any reason offered why they did not so appear. The woman was shown to be in Waco at the time and a frequent visitor at the jail where appellant was confined.
We see nothing in the case calling for any effort on the part of the trial court to differentiate between self-defense as against the first and subsequent shots fired by appellant. The jury were told in the charge that, if appellant was justified in firing the first shot, he would also be justified in continuing to shoot as long as danger, real or apparent as considered from his standpoint, continued to exist.
We have carefully examined all the complaints in the light of appellant’s brief, but are constrained to believe no error appears in any of them.
The judgment will be affirmed.
Affirmed.