(Syllabus.)

Trial — Sufficiency of Instructions in Entirety. The instructions must be considered as a whole, and when considered all together, if they fairly and correctly state the law applicable to the case, they will be sufficient.

Appeal from District Court, Cotton County; M.W. Pugh, Judge.

Robert Felder was convicted of assault with a dangerous weapon, and he appeals. Modified and affirmed.

Madden & Hubbell, for plaintiff in error.

The Attorney General and Edward Crossland, Asst. Atty. Gen., for the State.

CHAPPELL, J. The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cotton county of the crime of assault with a dangerous weapon and his punishment fixed by the jury at imprisonment in the penitentiary for a period of two years.

The evidence of the state shows that on October 4, 1927, Miss Belle Cox, in company with her brother and his wife, was traveling in a Ford automobile upon the public highway in Cotton county on their way to Wichita Falls, Tex.; that they overtook three boys, one of whom was defendant, who carried a 22 rifle, walking in the same direction, preceded by several dogs, on their way hunting; the boys stepped to the left-hand side of the road to allow the automobile to pass, but one of the dogs failed to get out of the way and was hit by the automobile; that immediately thereafter a shot was fired from the defendant's rifle and struck Miss Belle Cox in the neck. Mr. Cox testified that when he asked defendant what he meant by shooting into

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the car, defendant replied: "Because you tried to run over my dog."

The defendant claimed that the shooting was accidental; that the gun was a 22 Hammerless rifle which he held in his right hand; that he had a wound upon his left hand and was unable to use it in holding the gun; that in his excitement when he saw the car was about to hit the dog, and without any intention on his part, he discharged the gun which caused the wound upon Miss Cox.

The defendant contends that the court erred in giving instruction No. 12 over his objection. He complains particularly because he claims that the court failed to give any instruction as to his defense that the shooting was accidental. In this particular instruction the court did not affirmatively instruct that should they find the shooting was accidental but he did negatively so instruct. However, the instructions must be considered as a whole, and when considered all together, if they fairly and correctly state the law applicable to the case, they will be sufficient. A careful examination of the instructions in this case discloses that the trial court fairly and correctly stated the law as applicable to the facts herein.

The defendant finally contends that the verdict and judgment is excessive. The defendant was charged in the information with the crime of assault with intent to kill. The jury found him guilty of the lesser crime of assault with a dangerous weapon. The defendant is a boy seventeen years of age, and inasmuch as there is a sharp conflict in the evidence and he was found guilty of the lesser crime, the ends of justice will be met by modifying the punishment inflicted by reducing his sentence in the penitentiary from two years to one year. As modified the cause is affirmed.

EDWARDS, P.J., and DAVENPORT, J., concur.