Henry Homberg was convicted of the murder of his wife, Barbara Homberg, the jury finding him guilty of murder in the second degree, and assessing his punishment at confinement in the penitentiary for the term of forty years. It is admitted- that there is but one question presented for our decision, which is, “does the evidence or any part thereof present an issue upon manslaughter? If so, the court, having failed to charge thereon, committed error, and consequently the judgment should be reversed.”
To a fair and honest determination of the question as to whether there is any evidence tending to present the issue of manslaughter, each and every fact or circumstance tending to present the issue should be segregated from the rest of the facts, and viewed in the same light as if there had been no other evidence in the case. Proceeding upon this theory, let us suppose that the only evidence in the case is that upon which appellant relies as a foundation for a charge upon manslaughter. Taking this, and this alone, was the question of manslaughter presented ?
At this point a statement becomes necessary. We will take that of appellant’s counsel.
*9“Two days before the killing, the deceased and one Henry Knolte were in J. D. Braman’s court, under arrest upon complaint of defendant, charged with an assault and battery upon him. The deceased then, in the presence of the court, declared that she would kill defendant—■ that she would have his heart’s blood.
“A few hours before the killing, deceased told the witness Mrs. Helmers that she had left her husband and got another man—the man Henry Knolte, who had plenty of money; that he (Knolte) was looking for her husband to kill him; stated that she had left her husband and would live with Knolte; that she also loved one Maltzberger and would give him all the money she could get; that she had been living with a negro man and feared that she would have a child by him. The day before the killing, George Eggert and his son Ed. went with defendant to his home to haul some furniture for him. The deceased came there and acted so violently that they left, fearing that something serious would happen. The deceased, addressing defendant, said that she would kill him, and pointed a pistol at him; they (witnesses)"left, fearing that something bad would happen, and took defendant with them; deceased followed them to near Broadway. Deceased came out of John Homberg’s house when she came to witness’s. Henry Knolte lived at John Homberg’s.
“The witness John Hanna, at and before the killing, was standing at the round-house of the G., H. & H. B. Bailway; saw the deceased get out of the street car and run up to defendant, and tap him on the shoulder. After going a few steps she got in front of defendant, and drew a pistol and shot at him. After they had gone some ten or twelve steps she again got in front of him and presented a pistol at him, when he drew his pistol and shot her. She ran and he shot at her again. Saw the pistol drop from her hand, and saw where it fell. Afterwards *10went to the place and picked it up. Produced it upon the trial.”
If these facts were true, a very clear case of self-defense was made out, upon which the court gave the defendant a-concise, affirmative and liberal charge. The jury could not have believed this last witness and have convicted defendant of any offense.
Again: under the charge of the court below, if this witness’s testimony had produced a reasonable doubt in the minds of the jury as to the truth of his testimony, complete justification would have followed. This evidence presents no middle ground between murder and self-defense. If believed, not guilty; if not, guilty of murder, and nothing less than murder.
' But again, suppose that this statement contained all of the evidence against defendant, and he has been convicted of manslaughter. Could such a conviction be sustained by this evidence ? It may be answered by counsel for appellant that the conviction could not, for the reason that to convict of any offense the evidence must establish the guilt beyond a reasonable doubt, while on the other hand, if there be any evidence tending to present an. issue on an offense of less degree, it is the duty of the court to charge on such offense.
But suppose the court had charged on manslaughter and defendant had been convicted of that offense, this statement being all of the evidence in the case; would not there have been very serious, yea well-founded complaint of such a charge ? We think so. Why ? Because there is no fact tending to present any other issue than self-defense which could have been believed by the jury without resulting in a full and- complete justification.
Plence we conclude that if there had been submitted to the jury a charge upon manslaughter, it would not have been of the least benefit to the defendant; because, 1, there was no evidence to support it; and 2, if there had *11been, the jury would not have believed the witness. If so, an acquittal would have followed.
The court did not err in failing to charge upon manslaughter. The judgment is affirmed.
Affirmed.