Willis Rider v. The State, 26 Tex. Ct. App. 334

White, Presiding Judge. There was a conflict between the witnesses for the State and the defendant—the State’s witnesses swearing positively that defendant shot Matt Webb, and the defendant’s witnesses placing him, at the time of the shooting and immediately after it, in such a situation as to render it impossible he could have done it. A special instruction requested by defendant, and given by the court, presented the law applicable to this question, as follows, viz: “If you have a reasonable doubt as to whether the defendant was the person who shot Matt Webb, you should acquit him.

If you are satisfied beyond a reasonable doubt that the defendant was the person who shot Matt Webb, and have a reasonable doubt as to whether, at the time of shooting Matt Webb, defendant had a specific intent to kill said Matt Webb, or that he was acting in the defense of Anderson Rider, under the law of self defense as given in the main charge, you will find the defendant not guilty.” This instruction, together with the main charge, presented all the law fairly and legitimately arising upon the facts in the case. It will be seen that the defenses were: 1.

That defendant did not do the shooting; and, 2, that, if he did, he shot in defense of his brother. If an alibi had been the only defense, then, perhaps, the court should have charged specifically with reference to it. Where it is not the sole defense, it is not necessary that the court should charge specially upon it, unless requested to do so (Ayres v. The State, 21 Texas Ct. App., 399), and the omission in the charge upon the subject in such a case will not be error, unless the charge is specifically excepted to upon that ground. (Willson’s Crim.

Stats., sec. 1069.) In our opinion there was no phase of the facts presenting a case of aggravated assault. Appellant assaulted the injured party with a knife, and his brother immediately seizes upon the injured party also, and engages in a desperate struggle with him, in which Webb seizes a board and strikes the brother. Appellant runs around the struggling men until he gets an opportunity and shoots Webb, the fight having been a continuous one.

There is no self defense, or even a justifiable self defense of his brother, in this; and certainly there would have been no manslaughter had death ensued, because appellant provoked the contest with the apparent intention of killing, or doing serious bodily injury at least. (Penal Code, art. 603.) Opinion delivered October 31, 1888. There was no such impeachment of the witness as required ■of the court an instruction upon that matter. If such charge is required it is only in those cases where the witness has been properly impeached as to his truth and veracity. (Henderson v. The State, 1 Texas Ct.

App., 432.) There was but one of the State’s witnesses thus attempted to be impeached, and he was attempted to be impeached by one single witness only, which is not sufficient nor satisfactory for such a purpose. (Wofford v. The State, 44 Texas, 439; Butler v. The State, 3 Texas Ct. App., 48.) There was no evidence that, during the trial or after retiring, the foreman of the jury became so intoxicated as to render it probable his verdict was influenced thereby.

Such proof is necessary in order to entitle a defendant to a new trial for misconduct of this character. “Mere drinking of liquor by a juror is not sufficient ground for granting a new trial.” (Code Crim. Proc., art. 777, sub. div. 7; Willson’s Crim. Stats., secs. 2374, 2545; Allen v. The State, 17 Texas Ct. App., 637.) We have found no error in this record for which the judgment should be reversed, and it is affirmed. Affirmed.