Without a review of the evidence, which is stated in some detail in the original opinion, it shows, from the State's standpoint, that appellant while armed with a shotgun went at night to the deceased's premises to steal his property or assist in the theft thereof, and that as soon as deceased, who was on watch, spoke to appellant, appellant shot and killed him. Deceased learning that his melons had been stolen and hidden, went with his friends to the premises to catch the thieves. The State's evidence is to the effect that when appellant and others engaged in the theft appeared, deceased said, "Hold up, you got the melons, but you didn't get away with them; we have got you." Appellant said, "Got hell," and fired immediately. The deceased was armed with a shotgun. A State's witness says, "He had his gun in one hand, in this hand (indicating) under his arm. Just as the gun fired he had his gun up like that (indicating), catching his gun up when the gun fired." The same witness was cross-examined and asked this question: "You say positively that Wehmeyer did not raise his gun, or make an effort to shoot, until after Ben raised his gun? A. No, sir; he didn't raise his gun. Ben says, `Got hell.' When he said that he was coming up with his gun. Just as he said that his gun fired." Other witnesses for the State give substantially the same testimony as that quoted above. The State's witness Roese testified that deceased said, `Oh, yes, we have got you now." That at the time he said, "We have got you now," appellant shot. He did not more than speak that word when appellant shot him. Deceased did not try to shoot them in any way. He had a gun; "the position he *Page 454 held it in was down that way (indicating), like a man walking up, and would have the gun down that way, bending down." The same witness on cross-examination was asked: "Do you know whether Wehmeyer was making any effort to shoot, when he got shot? A. No, sir; he could not shoot. He did not have his gun in position at all if he wanted to shoot." Deceased's clothes were powder burned.
Appellant's theory and evidence was that when he discovered the deceased he ran and deceased, or someone in his party exclaimed, "Hold up, too late to run, I will kill you," and that a shot was immediately fired at him while he was running, and that after he had been shot at he returned the fire. Before shooting he ran some distance, stumbled and fell, and fired without taking aim or shooting at anyone in particular.
The court in his charge accorded the appellant the perfect right of self-defense predicated upon his testimony and theory, namely, that he was fired at by the deceased, or some of the party with him, before he shot the deceased. This charge while not in approved terms was more favorable to appellant than was justified under the law and facts. At most he was entitled, if his theory is believed, to the imperfect right of self-defense. Reed v. State, 11 Texas Crim. App., 514; Franklin v. State,34 Tex. Crim. 288; Young v. State, 53 Tex.Crim. Rep.. That is to say, if the jury believed his theory to be true, they would have been authorized by the law to convict him of manslaughter, but would not have been authorized to acquit him.
The charge on self-defense was predicated upon the only defensive facts that were in the record, viz., that appellant upon discovering his adversaries retreated and fired only after he had been fired upon. The charge of the court presenting this theory, and omitting any reference to manslaughter, was examined by appellant's attorneys and permitted by them without complaint to be read to the jury.
The case of Franklin v. State, 34 Tex.Crim. Rep., is not understood by us as holding that a man caught in adultery and assailed slays the injured party, is guilty of no greater offense than manslaughter, but it holds that the wrong committed by an adulterer does not completely take away his right of self-defense, and while it may not justify the killing of his assailant, the jury should be told that, believing his theory, they will be authorized to mitigate his offense and convict of manslaughter. In this case the same is true. The court would have been correct in telling the jury that, believing appellant's theory, they were authorized to convict of homicide of the degree of manslaughter, but the court did more; he told the jury, that believing appellant's theory, they would acquit him of any offense. In the trial of the case appellant had the benefit of an instruction that the jury should acquit if they believed his story or had a reasonable doubt as to its truth. Content with this charge more favorable than the law authorized, appellant submits his cause to the jury. After the verdict is it sound to say that by submitting his defensive facts in a light more *Page 455 favorable than the law justified, and in failing to submit them in their less favorable light, there has been a failure to accord appellant such a fair and impartial trial as will require this court to set aside the verdict rendered? Article 743, Vernon's C.C.P., provides: "Whenever it appears by the record in any criminal action upon appeal of the defendant that any of the requirements of the nine preceding articles (arts. 735-742) have been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial, and all objections to the charge, and on account of refusal or modification of special charges shall be made at the time of the trial."
We are not called upon to consider any of the errors mentioned in this subdivision of the statute, because there were no objections to the charge, and there are no bills of exception, under article 744, C.C.P., pointing out errors in the trial. These are necessary. See notes, arts. 743 and 744, Vernon's C.C.P. Looking alone to the fairness and impartiality of the proceedings, we are confronted with the question above put, does a submission of appellant's defensive facts to the jury in a light more favorable than the law requires, and the failure to submit it with a limitation upon his rights required by law, condemn the verdict as resulting from unfairness or impartiality? Bearing on this question is a long list of cases referred to in Vernon's C.C.P., p. 509, note 20, to the point that a complaint of a charge more favorable than authorized by law is not ground for reversal. It seems to us, in considering the record that if the jury had been told that, believing appellant's defensive theory, they could find against him no more than manslaughter, he could have received no greater benefit than if the jury was told, as it was told, that believing the same facts they were to acquit him. As a practical matter either charge has a tendency, under all the facts, to give the jury an opportunity to mitigate the punishment, and the charge given was quite as useful for this purpose as would have been the charge on manslaughter, because both would have depended upon the same facts. The result of the trial indicates that the jury did not believe defendant's theory; that it did not raise a reasonable doubt in their minds as to the accuracy of the State's theory, to the effect that the appellant, while so close to the deceased his clothes were powder burned, shot the deceased before appellant was fired upon or any effort was made to fire upon him. This court can not say that the trial was illegal, nor that it was unfair or not impartial. The fact that this court might have rendered a more merciful verdict on the facts would not bring it within its province on that account alone to set aside the verdict of the body which under the Constitution is authorized to fix appellant's punishment.
The motion is overruled.
Overruled. *Page 456