Conviction for murder, punishment, fifteen years in the penitentiary.
We find in the record forty-nine bills of exception, each of which has been carefully examined and considered, but none of which manifests reversible error, and we deem it not necessary to discuss same.
The facts amply support the conclusion of guilt. If we *240read the record correctly, it shows the following: There is a row of store buildings in Midlothian, Ellis County, Texas. C. M. Copeland had a grocery store on the corner at the end of said row of buildings. Four buildings down, — J. B. Copeland had a market. Next below was Daley’s tailor shop. A street ran up by the front of said buildings and an alley in their rear. Behind the market was a platform shown by testimony to be some twenty or thirty feet from the back door of Daley’s tailor shop. Deceased was on this platform when he was shot through the head.' Appellant, the only eye-witness who testified, located himself no more definitely than to say as follows: “When I stepped out, he was standing out there, * * * I told him to drop it. I could not see what he had in his hand, and I just fired. * * * I was afraid he was going to kill me, as he came to the door and made a step at me. * * * This was in broad open daylight. * * * I was standing about fifteen or twenty feet from him.” It was in testimony that before the shooting deceased had in the pocket of his overalls a piece of iron pipe or rod about sixteen inches in length and approximately an inch in diameter. Some of the witnesses expressed doubt as to its being as large as the one exhibited in court, and all the first witnesses to get to the body said they saw no weapon or piece of iron about' the body, but others testified they found a piece of iron pipe about sixteen inches long and about an inch in diameter lying near the head of deceased after he was shot. No witness testified to any use or attempted use on the part of deceased of any weapon at the time of the shooting. It was in testimony that not long before the killing appellant and his nephew were in the grocery store of C. M. Copeland and appellant had a pistol in his hand; the nephew was reasoning with appellant; deceased came to the back door of said store and stuck his head around and called to appellant to come out of there, and appellant raised the pistol and fired at - deceased. The nephew struck the hand or arm of appellant, deflected the pistol and the bullet struck the door. Deceased ran down the alley. Witnesses testified that they tried to get appellant to go home and give up his pistol but he would not do so. One witness testified that appellant repeatedly told Mm that he was going to kill him, and when witness said there is no use in that, appellant repeated that he was going to kill HIM, — not specifying who. Mr. Copeland testified that he locked the back door of his store and went down to his brother’s market to tell him about the trouble and get him to come up and help quiet appellant. He said the last time he saw de*241ceased alive was when he was down at his brother’s market. He further testified that when he came back appellant was walking up and down the store, and that he “sauntered to the back door,” and witness did not see him again. Somehow appellant got down very quickly to the back end of Daley’s tailor shop. Mr. Daley had heard of the trouble and he argued with appellant that he ought to go home. Appellant’s nephew was with him down there and tried to get him to go home but to no avail. Presently Mr. Daley looked up the alley and remarked that “There comes Ted now,” Ted being the deceased. Daley testified that he then went back and locked his back door and barred it and went out of the front of his tailor shop. In just a minute or two he heard the shooting. The facts conclusively show that appellant must have gone to Daley’s back door, unbarred and unlocked it and gone into the alley, from which place he shot and killed deceased, who was on the platform near the back door of Copeland’s market, a distance, according to Mr. Daley, of twenty or thirty feet, and, according to appellant, of fifteen to twenty feet. We quote from appellant’s testimony as follows: “Dailey told me to go on home, and when he went in the market I stood there until I thought he had time to get in the market, and I was going to go out at the back, going home, and when I stepped out he was still standing out there, but looking around like that (indicating), and I told him to drop it, I could not see what he had in his hand, and I just fired. I knew he had something in his hand, but I didn’t know what it was. He had on overalls. I shot the deceased because I was afraid he was going to kill me, as he came to the door and made a step at me.”
Such facts as here appear do not call for a charge on the presumption arising from the use of a deadly weapon, based on art. 1223, P. C., which provides that when the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, etc., are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury. The subject is discussed at length in Gunn v. State, 95 Texas Crim. Rep., 276. The charge given in the instant case fully and fairly instructed the jury on appellant’s right of self-defense, in case they believed that deceased had started toward appellant with something in his hand, or that he did any other act which, viewed from the standpoint of the appellant at the time, and under .all the facts and circumstances caused appellant to believe de*242ceased was about to shoot him, or to make an assault upon him,, or that it appeared to appellant that he was in danger, and. had a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, if any, appellant shot and killed deceased, they should acquit him. The charge also told the jury that if they had a. reasonable doubt as to wether appellant was acting in his own self-defense when he shot, they should give him the benefit of' such doubt and acquit him. No witness testified that the piece of iron pipe exhibited in court was a deadly weapon, and no witness, including appellant himself, testified to any attempt on the part of deceased, coincident with or immediately preceding the shooting, to attack appellant or strike him with said piece of iron pipe or any other weapon.
Finding no error in the record, the judgment will be affirmed.
Affirmed.