
    WILKES v. STATE.
    (No. 9862.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1926.)
    1. Homicide <&wkey;301 — Instruction upon right of accused to defend companion should have been given, where homicide occurred1 while deceased was attempting to arrest accused and companion and had assaulted companion of accused (Vernon’s Ann. Pen. Code 1916, art. 1105).
    In murder prosecution, where deceased with others was attempting to arrest accused and companion at home of accused’s father, and deceased had seized rifle from hands of accused’s companion, and, using it as club, had knocked companion to his knees, and was in act of swinging it again when shot by accused, court should have given chárge upon accused’s right to defend companion, in view of Vernon’s Ann. Pen. Code 1916, art. 1105.
    2. Criminal law <&wkey;>339, 359 — In case of circumstantial evidence, every reasonable hypothesis should! be explored, and no evidence as to identity or tending to show guilt of another should be rejected, unless so remote that it is of no weight.
    In case of circumstantial evidence, every reasonable hypothesis should be explored, and evidence which tends to show that another and not accused committed offense or which may create in minds of jury reasonable doubt as to identity of slayer, should not be rejected, unless it is so remote as to degree that it is of no weight.
    3. Homicide &wkey;>293 — Charge on issue of whether fatal shot was fired by another than accused should have been given, where one of parties to affray declared at time that deceased shot himself.
    Res gestas declaration of one of parties at scene of homicide that deceased had shot himself, together with surrounding circumstances, held, to require charge on whether fatal shot was fired by another than accused.
    Appeal from District Court, Newton County ; V. H. Stark, Judge.
    Frank Wilkes was convicted of murder, and he appeals.
    Reversed and remanded.
    See, also, 273 S. W. 258, 100 Tex. Or. R. 360.
    McCall & Crawford, of Conroe, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. .State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is murder; punishment -fixed at confinement in the penitentiary for a period of 15 years.

Basil Stakes was killed by a gunshot wound; the bullet entering his left cheek just under his eye and penetrating his skull.

Woods, Sanders, and Stakes went to the home of the appellant’s father for the purpose of arresting the appellant and one Batchan. The reason for the arrest is not revealed. In Batchan’s hand was a .38-40 Winchester rifle, weighing about 10 pounds. This was snatched from him by the deceased. Using the gun as a bludgeon, and holding it by the barrel, deceased knocked Batchan to his knees, and was in the act of swinging it again in the direction of the appellant when the fatal shot was fired. There were a number of eyewitnesses, but only two of them were used, namely, Sanders and Woods. When the gun fired, Sanders exclaimed: “Shorty has shot himself!” “Shorty” was a nickname for Stakes. Although the state’s witnesses were within a few feet of the appellant, neither of them claimed to have seen his pistol fire, nor to have seen a pistol in his hand before the shot was fired. He was seen, however, to have a .38 pistol after the shooting. There was one empty shell in the Winchester and in the pistol. The bullet which killed the deceased was not weighed, but there was evidence that it was somewhat larger than that which fit the pistol. The evidence is very meager, so. much so that the court found it necessary to instruct the »jury upon the circumstantial evidence above set out.

There was presented and overruled an exception to the charge upon the failure of the court to instruct the jury that it would have been the right of the appellant to act in defense of Batchan. The court was also requested to instruct the jury that, if the fatal shot was fired by another and not by the appellant, there should be an acquittal.

It appearing from the state’s witnesses that, immediately before the fatal shot was fired, the deceased, using a gun as a bludgeon, had knocked Batchan to his knees and was in the act of swinging it again, it would have been proper for the court to- amend his charge in accord with the appellant’s suggestion and instruct the jury upon the appellant’s right to defend Batchan. See Guffee v. State, 8 Tex. App. 187; North v. State, 12 Tex. App. 115; Garcia v. State (Tex. Cr. App.) 57 S. W. 651; 17 L. R. A. (N. S.) 795; 67 L. R. A. 546; Branch’s Ann. Tex. P. C. p. 1063,' § 1912; Vernon’s Tex. Crim. Stat. vol. 1, art. 1105.

In a case of circumstantial evidence, every reasonable hypothesis should be explored, and evidence which tends to show that another and not the accused committed the offense, or which may create in the minds of the jury a reasonable doubt as to the identity of the slayer, should not be rejected, unless it is remote to a degree that it is of no weight. See Dubose v. State, 10 Tex. App. 230; Taylor v. State, 221 S. W. 611, 87 Tex. Cr. R., 330. In the present case, the res gestae declaration of one of the parties to the affray that the deceased shot himself, in connection with the surrounding circumstances above detailed, raised an issue of fact as to whether the fatal shot was fired by another than the appellant, and his request to have the jury instructed upon that issue should haye been granted.

The judgment should be reversed, and the cause remanded, and it is so ordered. 
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