
    RUTHERFORD v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    Homicide (§ 300) — Sele-Defense—Instruc-tions.
    Deceased and defendant had had difficulties from the fact that the deceased was trying to induce the woman with whom defendant was living as his wife to leave him. Deceased on different occasions had threatened defendant’s life, and on several occasions had assaulted defendant with a knife, and on one or more occasions was armed with a pistol as defendant believed when they had trouble. On the occasion of the homicide, they met on different sides of a screen door leading to a hotel, and defendant testified that, on account of the matters previously occurring and deceased’s threatening remark at the time, defendant thought deceased was either going to kill or inflict on defendant serious bodily injury, whereupon defendant shot him. Held, that such evidence required a charge on self-defense from the standpoint of apparent danger and also in the light of threats.
    [Ed. Note. — For other eases, see Homicide, Gent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Midland County; S. J. Isaaeks, Judge.
    Golden Rutherford was convicted of murder in the second degree, and he appeals.
    Reversed.
    Charles Gibbs, of Midland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

This conviction was for murder in the second degree, and the punishment was assessed at 25 years in the penitentiary.

Appellant sought a continuance, which was refused. By the absent witness he expected to prove threats against his life, made by the deceased. In view of the fact the case will be reversed upon another question, the motion for continuance is not discussed. The absent testimony may be had upon another trial.

The court failed to charge' self-defense. Appellant excepted and tendered a charge submitting that issue, which was refused. In this the court erred. The deceased and appellant had had previous difficulties, growing out of the fact that the deceased was trying to induce the woman with whom appellant was living as his wife to leave appellant. The appellant naturally demurred. The deceased, on different occasions, made serious threats against his life which were communicated to defendant and some of which were made directly to the defendant. The defendant further shows that on several occasions the deceased undertook to assault him with a knife, and on one or more occasions was armed with a pistol, as appellant believed, when they had trouble. Appellant ran from deceased on these previous difficulties. On the morning of the homicide, appellant was going down the stairway with a view of going across the street from the hotel where he was at work to secure tobacco. When he reached the bottom of the flight of steps, the deceased appeared at the door. A screen door intervened between them. When appellant reached to open the door, the deceased also reached for it. Without going into a detailed statement of what there occurred, appellant testified that on account of these matters occurring previously, and what he thought were demonstrations on the part of deceased, and this remark of deceased, “Now, God damn you,” etc., he thought deceased was going to do him violence, — either kill, or inflict upon him serious bodily injury, and he shot. After he fired this shot, or maybe the second shot, the deceased fled, and appellant followed, shooting a time or two after they got away from the door. It is evident from the circumstances and the testimony that the deceased was shot at the door and not after he left. We are of opinion that this evidence, without going into detail, suggested the view of self-defense, and the court erred in not giving it, and also erred in refusing to give the special requested instruction. The law of self-defense should not only have been given, from the standpoint of apparent danger, but also viewed in the light of threats. Both issues were raised by this testimony. This applies to the difficulty at the door. The subsequent part of the difficulty presents another question, but this was not charged upon by the court.

The judgment is reversed, and the cause remanded.  