
    AYERS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 24, 1911.)
    1. Homicide (§ 300) — Self-Defense — Instructions.
    An instruction, in a prosecution for murder, as to the effect of threats, leaving the matter to the jury to determine whether threats and demonstrations were made, as distinguished from what defendant believed at the time of the occurrence, was erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-623; Dec. Dig. § 300.]
    2. Criminal Law (§ 530) — Confession—Requisites.
    Under Code Gr. Proc. 1895, art. 790, as amended by Acts 30th Leg. c. 118, providing that a confession shall not be used, if, when made, defendant was confined, unless made in a voluntary statement taken before an examining court, or made in writing and signed by him, which writing shall show that he had been warned by the person to whom the same was made, a written confession, reciting that accused had been warned by F., but failing to recite that the confession was made to F., was inadmissible.
    [Ed. Note. — For 'other cases, see Criminal Law, Cent. Dig. §§ 1208-1211; Dec. Dig. § 530.]
    Appeal from District Court, Grayson County ; J. M. Pearson, Judge.
    John Ayers was convicted of murder, and he appeals.
    Reversed.
    Joseph L. Cobb and Cox & Cox, for appellant. C. T. Freeman, Co. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of murder in the second degree; his punishment being assessed at 20 years’ confinement in the penitentiary. There are quite a number of interesting questions suggested for revision; but, as the record is presented to us, we deem it unnecessary to discuss all of them.

1. The matters with reference to continuance, manner of drawing and summoning the special venire, and incidental matters in connection with the motion for new trial, will not occur upon another trial as this record discloses them. Therefore we pretermit a discussion of those questions.

2. Sections 27 and 28 of the court’s charge are criticised in regard to self-defense as presented from the standpoint of threats. It occurs to us that this phase of the law as given by the. court is subject to some criticism, in that it leaves the matter to be decided by the jury as to whether threats and demonstrations were made, and not as to how defendant viewed the matter at the time of the occurrence. It is not what the jury may believe at the time of the' trial, in the light of the case as then presented, but what the accused believed at the time he acted. The latter is the criterion. Upon another trial this phase of the law should be presented entirely from the standpoint of defendant, and not from the viewpoint of the jury at the time of the trial.

3. There is a serious question in the case, and one that unquestionably requires a reversal. What purports to be a written confession of appellant was introduced before the jury over his objection. The document reads as follows:' “Sherman, Texas, July 9, 1909. I, John Ayers, have this day and at this time been warned by C. T. Freeman that I am charged with the murder of Homer Hale, and that, first, I do not have to make any statement at all; and, second, any statement that I may make may be used in evidence against me upon my final trial for the offense concerning which the confession is herein made.” Then follows the confession, which is unnecessary to be set out. This confession was sought to be taken in accordance with Acts 30th Leg. p. 219, and as amended is the present article 790 of the Code of Criminal Procedure. It reads as follows: “The confession shall not be used if at the time it was made the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of the accused taken before an examining court in accordance with law, or be made in writing and signed by him, which written statement shall show that he has been warned by the person to whom the same is made,” etc.

Among other objections to this document is that the confession does not purport to show, nor attempt to state, to whom the statement was made. In order that this instrument may be introducible, it should show that the statement was made to the party who gave the warning. It nowhere attempts to do so. This question came up directly in the case of Robertson v. State, 54 Tex. Cr. R. 21, 111 S. W. 741. Appellant’s contention here was affirmed to be the law in the opinion in that ease. This doctrine was reaffirmed in Jenkins v. State, 131 S. W. 543, and again in Henzen v. State, 137 S. W. 1141, and Burton v. State, 137 S. W. 1145, decided at the present term of the court. After what has been said by the court in those opinions, we deem it unnecessary to further elaborate the question. For this reason, the judgment will be reversed, and the cause remanded.

As before stated, without entering into a review of the other questions, a discussion of them is pretermitted, because they will or may not occur upon another trial, and especially in the manner in which they occurred upon this trial. A continuance may not be sought, and, if so, it will be a second application. The special venire and the manner of selecting it may not be subject to the same criticism, and the matters complained of in the motion for a new trial will hardly occur again.

The judgment is reversed, and the cause is remanded.  