In our opinion the stock law in said elec- | second degree, and he appeals. Affirmed. tion district 8 in Colorado county was in every way valid and legal against any and all of appellant's contentions. The judgment is therefore affirmed.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163,yond deceased's house. That was the only 3169; Dec. Dig. § 1172.*]

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 3215-3219, 3221, 3230; killing, and before he started to town, apDec. Dig. 1186.*]

lant ran down the road towards deceased's house some distance, from 50 to 100 yards, then turned and drove rapidly in a lope back to his own home. Upon reaching it, Mrs. Head, who was one of his neighbors and visiting his wife when he started to go to town, and when he thus returned, testified in effect that when she heard the first shot she was in the house but at once went to the door and thence to the front gate, and that as appellant ran up to his house, said to his wife, "Lottie, run look in the trunk and get me some more cartridges; I will make that damn son of a bitch threaten to kill me." And he further said he would go down there and finish him up, and kill the whole family if they monkeyed with him; that she beseeched him not to go back down there because she was afraid that deceased's brothers would kill him (appellant) if he did. Appellant took his horse out from the buggy as quickly as he could, saddled him, and went in a fast lope to Mr. Lucas', who was in sight in his field some distance away, and when he ran up to Lucas he said, "Mr. Lucas, I want you to go and tend to Will." Lucas said, "What is the matter?" Appellant said, "He threatened to kill me and I shot him." Lucas said, "Whereat?" And appellant said, "Down in his field;" and appellant immediately rapidly rode away.

and attend to some other business. He took | he had no weapon of any kind on or about with him his pistol on that occasion. The his body when killed and had only a small deceased that morning was working his pocketknife in his pants pocket, and it closed. land in his part of the field with a double | Deceased's wife testified he had no weapons team, cutting stalks with a riding stalk of any kind. Just after the shooting appelcutter. One end of the rows where he was cutting stalks bordered on said road, and in his work, going from one end to the other, he approached near said road, when he would turn his team and stalk cutter around and start in the opposite direction. Appellant said he did not know at the time he left his home or started to town or prior thereto that deceased was at said work in his field, and that he did not see him or know that he was so at work until he had gone some distance from his home and got 50 or 75 steps from him, when he discovered him. Then the deceased had turned his team at the end of the rows starting from the road again. That he said nothing to deceased, and deceased said nothing to him, until appellant got about opposite the deceased; the deceased up to that time being at or on his stalk cutter. Appellant testified that deceased then said to him, ""Carey, God damn you, stop.' I told him, said, 'Will, go on and leave me alone; I don't want no trouble with you;' and he said, 'Carey, I am going to kill you;' and I told him to take the land and go on with it; and he came on with the same words, said he would kill me." Appellant then further testified that the deceased approached to within one or two steps of him, run his hand in his pocket, and he then got his pistol and shot deceased in self-defense while deceased was thus near to and approaching him and in the act of assaulting him. Appellant claims he sat in his buggy and never got out of it during the whole time up to the shooting. Appellant claims that he shot at him three or four times. Others who heard the shots in effect say several times. It was shown, without contradiction, by an examination of the body of the deceased that two balls only struck him, one in the left side of the left leg four inches below the knee, the ball striking the bone; that the only other shot that struck him entered his body two inches

to the left of his left nipple, went entirely through the body, and emerged under the arm pit of the right arm; that this ball went through the aorta and killed him. The effect of the doctor's testimony is that the wound was immediately fatal, and deceased could not have gone any distance after being so shot. The body of deceased was found, as the witnesses show, from 10 to 17 steps from the road in which appellant sat in his buggy; that his feet were towards the road and his head further therefrom, his left hand down towards his side, and his right extended up above his head; that, immediately after the first shot, witnesses, hearing it, saw deceased's team running

Several witnesses testified that, very soon after the killing, some of them, hearing the shots, and their attention being attracted to the place of the shooting thereby, went to the body of the deceased; that they examined for the tracks of the deceased at the time and found that his tracks where he had stopped his stalk cutter on this occasion showed that he was not nearer than about 10 steps from the said road; and that none of his tracks there showed that he went near

the road.

Unquestionably appellant's testimony raised self-defense in his favor. His, and the testimony of others, also raised self-defense based on threats of the deceased.

Appellant requested several charges on these subjects, and in some particulars attacks the charge of the court thereon. We will therefore here quote the whole of the court's charge on those subjects. It is:

"(26) Upon the law of 'self-defense,' you are instructed, gentlemen, that homicide is permitted by law when inflicted for the purpose of preventing the offense of murder or the infliction of serious bodily injury, when the killing takes place under the following circumstances: First. It must reasonably appear by the acts or by the words, coupled with the acts of the person killed, that it was the purpose and intent of such person to commit such murder or to inflict such injury. Second. The killing must

defense that he had been told that deceased had threatened his life or to do him some serious bodily harm, and that the deceased at the time manifested an intention by words, acts, or conduct to execute said threats, viewed from to raise in the defendant's mind a reasonable the standpoint of the defendant alone, sufficient expectation of death or serious bodily harm, and, if so, defendant had the right to kill the deceased, and if you so believe from the evishould acquit the defendant and say by your dence, or have a reasonable doubt thereof, you verdict not guilty."

ought to have told the jury that the appel- | it is only necessary to defendant's right of selflant was not bound to take some other road to town or diverge from his usual course in order to avoid meeting the deceased. The testimony in this case does not raise any such issue. The state never even asked appellant anything about it, either directly or indirectly, nor did the state in any way contend, so far as this record shows, that appellant ought not to have gone this road to town but some other, but it was conceded by all of the state's testimony, where the subject was mentioned at all, that this was the road to town, the one usually traveled, not only by appellant, but by everybody else in that neighborhood. Some time after the killing, the appellant had a surveyor to go out on the ground and measure the distances and tell about the timber intervening between appellant's house and where he killed the deceased. Not a word of this testimony indicates that there was any other road that he should or could have traveled, other than the one he was traveling, in going to town. All this testimony was introduced for the purpose of attempting to show that Mrs. Head, one of the state's witnesses, could not

have seen the deceased, nor his team, at the time nor immediately after the shooting, because of the obstructions from appellant's

house to where deceased was killed, for the purpose of disputing her on the point when she testified what she saw of the parties at the time and immediately after the killing There was much testimony on this subject, and by experiments from both points by various witnesses; some placing themselves at appellant's house and gate, and others where the deceased's body fell, and looking from one to the other, some testifying that she could have seen, others that she could not. None of this testimony was introduced or remotely used for the purpose of showing that appellant ought to have taken some other route to town instead of the one he did. Appellant requested, and the court refused to give, his fourth special charge. Omitting the formal parts, it is:

In connection with the refusal of the court to give this charge, appellant again criticises the court's charge on the subject of threats above copied, basing his complaint largely, if not wholly, in this court, on two grounds: First, that it required the jury to believe that the threats relied on had been actually made; second, that the court's charge required the jury to believe, both that the deceased had threatened appellant's life and had also threatened to do him serious bodily injury. Whereas he claims that, if deceased made the threats to do either, he was entitled to act with reference thereto.

[4] It will be noted in the court's charge

above copied that in paragraphs 30 and 31, where the statute uses, and the court should have used, the word "execute," the court, by inadvertence, used the word "excuse." As to this, the court explains that the use of the word "excuse" in his charge was an error of the typewriter, not detected by him, nor by the attorneys on either side, and evidently not by the jury, and he says that, before the argument of the case, he gave his charge to appellant's attorneys, and they each, in reading it to the jury, read the word "excuse" "execute," and discussed the case on that theory, and that alone, as to this word, and that he, when he read his charge to the jury, read the word therein as "execute" and not "excuse." We think, under the circumstances, no possible injury could occur or did occur by the use of this word therein, taking the context and the circumstances into consideration.

[5] Now as to the question of the court's "In connection with the law of self-defense, charge requiring that the threats were actualyou are further instructed: That if you find ly made and the charge requiring the jury and believe from the evidence in this case that Will Griffin, the deceased, threatened to to believe that deceased made threats both take the life of the defendant, Bun Carey, or to take appellant's life and also threatened to do him some serious bodily harm, and that to do him bodily injury. It is now elemensaid threats were communicated to him prior to the killing, or that deceased at the time of the homicide threatened to take the life of the defendant, and at the time of the homicide the deceased, by words or acts, or gestures, or any overt act, manifested an intention to execute said threat, and, viewed from the standpoint of the defendant alone, it produced in the defendant's mind a reasonable expectation of death or serious bodily injury, or if you have a reasonable doubt thereof, you should acquit the defendant, and this you should do although you may believe at the time that said threats were untrue and that Will Griffin did not intend to The evidence in this case, without conkill the defendant, Bun Carey. In this connection you are further instructed that it is im-tradiction and without contest by the state, material whether any threats were made prior clearly shows that deceased did make certo the homicide or that said threats were true; tain threats against appellant, and that he

tary and well established in this state, both by statute and a large number of decisions of this court, that this court is not authorized, in fact, by statute expressly forbidden (C. C. P. art. 743, as before the recent amendment thereof), to reverse any judgment of the lower court "unless the error appearing from the record was calculated to injure the rights of the defendant." It is unnecessary to cite the many cases.

had absolute notice and knowledge thereof these same things, and that she had told her before the killing. husband thereof.

Mr. Talbert, appellant's witness, testified This is substantially all the testimony on that on February 22d, before the killing on the subject, and, as said above, it establishes March 17th following, he was present when without question and without controversy that deceased and appellant were together, and whatever threats to kill or to do any bodily indeceased said, "Carey, I can whip you." Ap-jury to appellant by deceased was known to pellant replied, “Yes, I guess you could, Will." him before the homicide. There is no indicaAppellant himself testified to substantially, tion in the record, from the whole statement of if not precisely, the same thing; he stating | facts, that any of these threats or the commuthat deceased said, “Carey, I can lick you;' nication of them to appellant was contested by and I said, 'I know it, Will,' and laughed at the state or disputed by it in any way, but him and went on cutting posts, and five min-it seems clearly to have been conceded by utes afterwards, I reckon, he came back by the state that said threats had been made, and never said anything to me."

and appellant knew of them; in fact, most of them were made to him personally in the presence of others, and those not so made had been communicated to him. So that the court's charge, on none of the grounds on which it is attacked by appellant, presents any reversible error. Appellant was not and could not have been injured thereby, even if the court did, by his charge, in effect tell the jury they must believe the threats were actually made, and that threats, both to kill and do serious injury, were made. The court's charge fully, aptly, and completely presented every issue on these subjects as favorably to appellant as the evidence authorized.

Appellant's witness Wideman testified that on Sunday, three weeks before the killing on Monday, he and appellant were together in appellant's oat field, when deceased came to them; that, after some controversy between them about their trouble, deceased said to appellant that, because he had forbidden him to come on his land, he could kill appellant and the law would not hurt him, and in the same conversation at the time attempted with a rock to kill appellant but was prevented by him (the witness), and that when they separated deceased told appellant in substance that he (deceased) was going to kill appellant, and that his folks would find him It is unnecessary to discuss any of appelhung up by his toes. Appellant himself tes-lant's other special charges which were re tified to substantially the same thing, as to what occurred on this occasion, as did his witness Wideman.

Appellant's witness Mr. Stutts testified that on Sunday night, February 22d, after the altercation in appellant's oat field, testified to by him and his witness Wideman, deceased and his wife were at the house of witness, and that he told him about said altercation, and that Carey was a grand rascal and he was not going to be run over by him, and that he was "too damn little" to run over him, and that he was going to take as much hide off of appellant's head as he (appellant) had taken ground off of his (deceased's) rows. Mrs. Stutts testified that, on the same

Sunday evening when deceased was at her home, she heard him state that he did not like Bun Carey and aimed to have a settlement with him in some way, and that she (Mrs. Stutts) told Mrs. Carey about this.

Elmo Head, appellant's witness, testified that, on Saturday evening two weeks before the killing Monday, deceased told him that if Carey plowed any more of his ground he was going to take as much skin off of his head as Carey took off of his land, and he said he could whip Carey and would do it; and that deceased further told him that Carey was going to keep on mussing with him till he whipped him, and that he would get him yet. Head testified that he told Mrs. Carey of this before the homicide. Mrs. Carey testified that Head told her husband of this, and she also told her husband before

fused by the court, or any other criticism of the court's charge. None of them present any reversible error.

Appellant's bill, as qualified by the court, shows no error in excluding the testimony of Mrs. Stutts as to what her husband told her. And, as qualified by the court, appellant's bills to the testimony of Mrs. Head shows no error; all her testimony was

admissible.

There being no reversible error shown, the judgment will be affirmed.

DAVIDSON, J. (dissenting). Appellant was convicted of murder in the second de

gree; his punishment being assessed at ten years' confinement in the penitentiary, which is five years in excess of the minimum punishment fixed by the Legislature for that degree of murder.

I deem it unnecessary to enter into a general statement of the facts, as this has been sufficiently done, perhaps, in the opinion of the majority, so far as the questions I purpose to discuss are concerned.

I cannot agree altogether with my Brethren as to that part of the statement in the opinion which refers to the two roads that lead from appellant's residence to town. Quoting from the majority opinion, I find this:

"Again appellant claims that the court ought to have told the jury that the appellant was not bound to take some other road to town, or meeting the deceased. The testimony in this diverge from his usual course in order to avoid