Ward v. State (83 Tex. Crim. 518, 1918)

MORROW, Judge.

Appellant was convicted of the murder of Noah Bacon and his punishment fixed at five years confinement in the penitentiary.

Neither the charge nor the rulings of the trial court in the conduct of the trial are complained of. The sufficiency of the evidence alone is assailed and this on the proposition that appellant’s testimony showed a case of self-defense not overcome by the other evidence developed upon the trial.

The homicide took place at a gathering denominated a supper. On the afternoon preceding this gathering appellant claims and testified that he and one Smith were riding to town in a buggy and overtook deceased, who insisted over their objection in riding in the buggy, and that his conduct resulted in a difficulty with Smith in which deceased wounded Smith with a knife, and afterwards chased him with rocks and ordered appellant to permit him to ride in the buggy to town, which was done. They next met at the gathering, the deceased arriving while appellant and his brother Edwin Ward were together. The deceased approached and claimed that appellant had mistreated him in failing to bring him •to the supper, and said to appellant’s brother, “Edwin, didn’t he mistreat me ?” to which Edwin replied that he knew nothing about it, when deceased called him a damn fool. Edwin told him not to curse him, that he did not want any fuss with him, whereupon, according to appellant’s testimony, deceased attacked him,with an opened knife in his hand. Appellant, retreating, told deceased to stop, and upon his failing to do so, appellant, having backed to the wall, shot deceased. When the first shot was fired the light was extinguished, and he fired a second time, not knowing whether the first shot had taken effect or not. Deceased had the reputation of being a dangerous man, and appellant said that he fired because of fear deceased would kill him with the knife. Deceased was shot twice in the breast with a 45-caliber pistol. Edwin Ward, brother of appellant, described the occurrence as follows: “When deceased walked up he said to appellant,