Doctor Thomas Pugh was indicted in the district court of Robertson county for an assault with intent to murder. The defendant moved for a new trial, which was overruled.
Judgment having been rendered upon the verdict, the defendant appealed, and has assigned the following errors, viz. :
“ 1st. It was error in the court not to instruct the jury as to the law of aggravated assault.
“ 2d. It was error not to instruct the jury upon the law applicable to the facts showing an appearance of danger.
“3d. It was error to overrule defendant’s motion for a new trial.”
We will first notice the 2d error assigned.
The law requires the judge who presides at the trial, after the argument has concluded, in every case of felony, whether asked or not, to deliver a written charge to the jury, in which he shall distinctly set forth the law applicable to the case ; but, in doing this, he must not express any opinion as to the weight of evidence, nor sum up the evidence. Pasc. Dig., Art. 3059. It is the duty of the court to give only such instructions as are applicable to every legitimate deduction which the jury may draw from the facts.
In the case at bar the district judge, in his charge to the jury, first gave the jury the legal definition of an assault and battery, and also of an assault; second, he defined murder as it is done by our Penal Code; and, third, he next instructed the jury as to the legal definition of express and implied malice.
Below we copy the 4th, 5th, and 6th instructions from the judge’s charge:
"4th. If the jury believe from the evidence in this case that defendant shot Bailey, and that if he had killed him (Bailey) such killing would have been a killing upon express or implied malice, you will find him guilty of an assault with, intent to murder.
*543“5th. If the jury believe from the evidence that the defendant shot Bailey for the purpose of preventing Bailey from murdering or maiming him, or from doing him some serious bodily harm, you will acquit; but, to justify the defendant upon this ground, it must reasonably appear by the acts of Bailey that it was the purpose and intent of Bailey to murder or maim defendant, or do him some serious bodily harm, and it must further appear that defendant shot Bailey while Bailey was in the act of attempting to murder or maim him (defendant), or to do him some serious bodily harm, or after some act done by Bailey showing evidently an intent on his part to murder or maim defendant, or to do him some bodily injury.
“ 6th. If you believe from the evidence that defendant shot Bailey to protect his own person against any unlawful and violent attack of Bailey upon defendant, the shooting was justifiable; but, to justify the defendant upon this ground, the attack of Bailey must have been such as produced in the mind of the defendant a reasonable expectation or fear of death, or some serious bodily harm.”
We have copied so extensively from the charge of the court to show that the jury were fully and fairly instructed as to the law of self-defense. The 2d error assigned we think is not well taken.
We will now proceed to notice the 1st error assigned.
The counsel for defendant, in his ingenious brief, mainly labors to satisfy us that the lower court should have instructed the jury as to the law of aggravated assault. To determine whether or not such charge was necessary, we will briefly refer to the evidence as we find it in the record. The evidence shows that the defendant shot Bailey in his (Bailey’s) store, near sunset, on August 28, 1875, on Mun-ford’s Prairie, in Robertson county. Before the day of the shooting defendant and Bailey had been on friendly terms, and defendant was familiar with “ the run of Bailey’s store.”
*544Bailey testifies that, a few hours before the shooting, Dr. Pugh “ came by me in my store and said, ‘ You don’t know me, do you ? ’ I said, ‘ Yes.’ He said, ‘ You will be damned sure to know me when you see me again.’ * * * There was a double-barrel shot-gun and holster-pistol behind the counter, also a sixteen-shooting rifle at the upper end of the counter. The pistol was about three feet from the money-drawer; sometimes it was put in the money-drawer.” George McNutt, for the state, testified that “ my store is about fifty yards from B. B. Bailey’s store. A little while before defendant shot Bailey defendant had his pistol out,, at my store. I made him a drink. Defendant said he was-going over to Bailey’s store; to watch and we would hear a pistol in about fifteen minutes; and he left, going- in the direction of Bailey’s store ; and, sure enough, in a short time we did hear a pistol fire. Defendant had taken several drinks—had a good deal of steam on.” * * *
We will return to Bailey’s testimony. Bailey further testifies that “I was standing in my store, waiting on some customers, when defendant, Dr. Pugh, came into my store and asked me to pay him what I owed him. I replied, I would do so if I owed him anything. He said, ' Do you intimate that you don’t owe me?’ I replied, ‘ I did not say so ; you can interpret it as you damn please.’ He said, ' You are a damn son of a bitch,’ and immediately presented a pistol at me. I caught the pistol, when he drew a dirk and cut at my hand, and cut it slightly on the finger. I turned loose the pistol, when he shot me in the breast. I was badly wounded, and fell behind the counter. * * * I was confined to my room several weeks. * * * I was, at-the time he drew his pistol, selling some goods to a customer, and was in the act of dropping some money in the money-drawer. Defendant said, 'Hands up.’ I elevated my hands when he said hands up ; and he then presented his pistol at me and I caught it, and he cut my finger and I turned it *545loose, and he shot me. * * * The knife was a dirk-: knife, and already open when he drew it; and at the time I was shot by Dr. Pugh I was making no attempt to get any weapon, nor did I at any time make any hostile demonstrations.”
The witnesses Stewart, Williams, and Taylor, who saw the difficulty, do not materially differ in their testimony from the account given of it by Bailey. The defendant offered no evidence on the trial. After the shooting took place the accused cut the bridle-rein by which his horse was tied, mounted him, and was not seen again, by any of the witnesses, in Robertson county until he was captured by the sheriff on April 16, 1877.
The counsel for the defendant neither excepted to the charge of the court nor asked any additional instructions. We have failed to discover anything in the evidence which rendered it necessary for the presiding judge in the court below to charge the jury upon an aggravated assault. In our judgment there was not a particle of evidence before the jury which rendered such a charge necessary. There was no conflict in the evidence. If we are correct in this, a charge upon the law of aggravated assault would have been improper, and the only effect such a charge could have had would have been, perhaps, to have confused the minds of the jury.
If there is no mitigating or extenuating circumstance which requires a charge upon any lower degree of offense, the presiding judge should not give one. Dorsey v. The State, 1 Texas Ct. of App. 33; Washington v. The State, 1 Texas Ct. of App. 647; Holden v. The State, 1 Texas Ct. of App. 235.
In this case the defendant, being armed with a six-shooter and an open knife concealed about his person, brought on a personal conflict with Bailey, and in that conflict attempted to kill him ; and he cannot legally contend that the conflict *546rendered his mind incapable of cool reflection, and thereby reduced the offense to an aggravated assault.
When one charged with committing an assault with intent to murder is shown to have given the first insult, and to have begun himself the attack which finally resulted in the effort on his part to kill, he cannot mitigate the offense by showing that he attempted to kill under the immediate influence of sudden passion caused by injuries received from his adversary during the rencounter. In this case, as was said in the case of Crane v. The State (41 Texas, 494), the insult, the passion, and the assault were all on the side of the defendant.
The counsel for the defendant insists we should not overlook the fact that defendant was drinking when the difficulty occurred between him and Bailey, and that, while drunkenness neither aggravates nor excuses an act done by a party under its influence, still it is a fact which affects the physical ability and mental condition of the accused at the
The mere fact of drunkenness alone will not reduce to manslaughter a homicide which would otherwise be murder, much less extract from it its indictable quality. The fact of being drunk, or mere mental excitement or ungovernable rage which maybe engendered by drinking intoxicating liquors, will not reduce the crime of a voluntary killing below the grade of murder. Farrer v. The State, 42 Texas, 272.
The facts in evidence did not authorize the court to charge ,the law applicable to a less grade of offense than assault with intent to murder. The lower court property overruled defendant’s motion for a new trial.
The judgment is affirmed.
Affirmed.