Appellant was convicted of manslaughter, and his punishment assessed at two years confinement in the penitentiary.
This is the second appeal of this case. The report of the first appeal will be found in 54 Tex.Crim. Rep., 113 S.W. Rep., 536, where, in a general way, the case is stated. The facts are not identical with those which appeared in the former record, though in substance they are the same. We think the charge of the court is not subject to substantial criticism, and fairly well follows the opinion on the former appeal. While some other questions are raised, we think there are only two which require attention and which we will discuss.
1. There was some evidence offered on the trial to the effect, in substance, that appellant for some time prior to the homicide had been visiting the wife of deceased under such circumstances as to raise the presumption of improper intercourse between them. The record also discloses the fact that these attentions of appellant towards the wife of deceased had been the subject of discussion between appellant and deceased, and that appellant had asserted his intention of continuing such attentions. It is, therefore, evident that appellant was advised that deceased knew of his improper attentions and devotion to his wife. As illustrating the relation of the parties, and as showing motive, we think, as indicated on the former appeal, that this testimony is undoubtedly admissible.
2. The only other question that we care to discuss is the assignment of error which raises the sufficiency of the evidence to support the verdict. That a strong showing of self-defense was made in this case there can be no doubt. If it were a matter of first impression with us, we should be strongly inclined to hold that the weight of the testimony supported appellant's plea of self-defense, but there is testimony in the record from which the jury were authorized to draw the conclusion that the killing was not in self-defense. One of *Page 385 the witnesses testified that just before the immediate act of the killing, while the parties were standing in the same room and within a few feet of each other, that deceased's hands were at his side, that he had no pistol in either of his hands, and was making no effort to get one. That appellant at this time had his pistol in his hand, placed rather behind him, and that while the parties were substantially in this position he, appellant, called out to him to get out of the way, which he immediately did, and almost instantly the pistol fired, killing Harrison Carr, the deceased. If the testimony of this witness is true, undoubtedly appellant was not justified, and his plea of self-defense was untrue. The verdict of conviction has received the approval of the trial court. Reluctant as we are to affirm same, there would seem, under the rule which must govern us, to be no reason why we should place our judgment on the facts against that of the jury and the trial court, who, at first hands, observed the witnesses and had better opportunity of weighing the evidence. As presented, there is no error for which we would be authorized in reversing the case.
The judgment is in all things affirmed.
Affirmed.