
    BRIGGS v. STATE.
    (No. 7632.)
    (Court of Criminal Appeals of Texas.
    June 29, 1923.
    State’s Rehearing Denied Nov. 14, 1923.)
    1. Homicide &wkey;>300(5) — instruction on self-defense held misleading.
    Where defendant claimed to have acted in self-defense because of apparent danger, a charge bn self-defense stating that “all self-defense rests upon necessity,” and that “where there is no necessity to kill it cannot be self-defense,” held misleading,- in that jury could have inferred that the danger must have actually existed, and that danger apparent to de- . fendant was not sufficient.
    2. Homicide <&wkey;>ll6(3) — Danger apparent to defendant sufficient to justify killing.
    Danger to justify killing in self-defense need not be real, but it is sufficient if the defendant thought it necessary to kill deceased.
    3. Homicide <&wkey;300(3)— Instruction on self-defense held erroneous for failure to give concrete application of law to particular facts.
    Where defendant claimed to have acted in self-defense- because- of apparent danger, instruction on self-defense containing merely an abstract statement as to the duty of the jury to consider the necessity of the killing of deceased from the standpoint of accused, without giving a concrete application of the law to the facts in the particular casé, held erroneous."
    4. Homicide &wkey;j300(3) — Instruction on self-defense held erroneous for failure to authorize-jury to consider deceased’s words as .weir as conduct.
    Instruction on self-defense held erroneous' in that it did not authorize the jury to consider the words as well as the acts -and - conduct of deceased in determining whether the defendant was in danger at the hands of the deceased, in view of Pen. Code 1911, art. 1105, subd. 1.
    5. Homicide &wkey;>296 — Refusal of instruction as • to use of more force than necessary on part of officers in arresting defendant held not error.
    In a prosecution for killing an officer, in which the evidence showed that the defendant had escaped at the time of the killing, refusal of charge as to the use of more force than was reasonably necessary on the part of the officers in arresting defendant for the possession of intoxicating liquor held not error.
    6. Homicide i&wkey;>300(3) — Charge stating facts - under which jurjr should find against plea of self-defense held not erroneous.
    In instructions on self-defense, the court did not err in giving the converse of the charge on self-defense, stating circumstances under which jury should find against self-defense plea.
    <gtes>For other cases see same topic and KEY-NUMBER in ail Key-Numhered Digests and Indexes
    
      7. Crimina! law <&wkey;>l 170’/2(' 1 — That deceased’s wife testified for state, and was accompanied into courtroom by her.child, held not ground for reversal.
    In homicide prosecution, the fact that the deceased’s wife was permitted to appear as a witness for the state, and to be accompanied into the courtroom by her child, held not ground for reversal.
    <§=^For other cases see same topic and KEV-NUMBER in all Key-Numbered Digests and Indexes
    ' Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Leon Briggs was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    John M. Mathis, H. E. Kahn, A.- E. Heid-ingsfelder, J. V. Meek, and C. E. Heidings-felder, all of Houston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORB, J.

Appellant was convicted in the criminal district court of Harris county of manslaughter, and his punishment fixed at five years in the penitentiary.

Two officers were watching appellant’s house in Houston on information of traffic in intoxicating liquor. Appellant was arrested while in the act of leaving the premises. The officers wanted to search his car ■ in the street, but for the purpose of this case he was unwilling for them to do so, and ran the car back into his own yard, where quite a scuffle ensued, ending for the time being by appellant getting away from the officers, climbing over a iiorch railing, and dashing into his house through a door which was shut behind him. In the rear of the dwelling house and to the east thereof was a garage. The officers had gotten information that a truck load of whisky was expected to be delivered at the premises that morning. While they were watching, and before their difficulty with appellant, another man had driven onto the premises and to •the garage, and then had started away, and the officers upon search found in his car a telescope containing 12 quarts of whisky. They had then gone and obtained a search warrant, which they had. at the time of their difficulty with appellant jusf, mentioned.

One of the officers with the search warrant went up to the door through which appellant had just disappeared, and demanded entrance a number of times, which being refused, he proceeded to kick open the door and go in. The other officer, Mr. Floyd, deceased herein, had gone around the house and to the garage, where it appears they suspected the liquor was stored. Officer Edwards testified that after he entered the house his attention was attracted to a bag on a duofold, and upon examination he found in it a number of quarts of whisky. While looking at this Mr. Edwards heard a shot fired at the rear of the premises, and the appellant came rushing through the back of the house. He crouched behind a cased opening, and, catching sight of witness, fired at him, and Mr. Edwards returned the fire, shooting twice. Appellant ran, and was lost sight of by witness, but later was found in the ceiling of the house. After losing track of appellant, Officer Edwards went out to the garage, where he found deceased lying on his face in the runway going into the garage. Mr. Edwards picked up an empty .45-caliber cartridge shell near the back door which fitted a .45-caliber pistol found in the house recently discharged, and with fresh blood on the handle. It appears that in appellant’s struggle with the officers in the yard when they tried to arrest him he had been struck blows on his head and face which caused blood to flow.

Appellant set up self-defense, and complains of the charge on this issue. He swore that he was assaulted by the officers in his yard and got away from them, and ran into the house, and a little latér, purposing to escape through the back yard and over the fence, he says he grabbed a gun and started to run out of the back door, and saw a man at the back, who said. “You won’t get away from us this time, you son of a bitch,” and came up with his arm with a gun in his hand. Appellant said he shot at the man, and ran right back into the house. He testified that he did not know deceased was there when he ran out of the door, and that he intended to jump over the back fence and get away, and that he fired the shot because he thought from the remark and the way deceased raised the gun that deceased was going to kill him. Appellant’s wife swore that just before the shooting she ran out in the yard, where she could see deceased, and that she saw him point his revolver at some one whom she could not see, and heárd him saying something, but could not tell what it was, and that' she then heard a shot and saw deceased fall.

In determining the sufficiency and the correctness of the charge on self-defense it will not be necessay to set out the state’s testimony. The charge on self-defense was as follows:

“All self-defense rests upon necessity. Where there is no necessity to kill, it cannot be self-defense; but a reasonable apprehension of death or serious bodily injury will excuse a party in using all necessary force to protect his life and person, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such apprehension is in no event bound to retreat in order to avoid the necessity of killing his assailant. If from the evidence you believe the defendant killed the said J. W. Floyd, but further believe that at the time of so doing the deceased was about to mate an attack on him, which, from the manner and character of it, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him, or if upon this proposition you have a reasonable doubt you will find him not guilty. If, however, you find from the evidence beyond a reasonable doubt, after viewing the facts from the defendant’s standpoint at the time of the homicide, that it did not then reasonably appear to the defendant that he was in danger of losing his life or suffering serious bodily injury at the hands of the deceased, then and there at the time he shot deceased then, if you so find, you will find against his plea of self-defense.”

Appellant has a separate bill of exceptions to the first two lines of said charge. Same should not have been given. A somewhat similar charge is criticised in Coker v. State, 59 Tex. Cr. R. 243, 128 S. W. 137. Same was liable to be misunderstood and especially in a case where the defense was apparent danger. Judge White, in Weaver v. State, 19 Tex. App. 567, 53 Am. Rep. 389, says:

“The whole doctrine of self-defense rests upon the comprehensive principle of reasonable necessity, and apparent reasonable necessity is the whole law of [self] defense.”

In 13 Ruling Case Law, p. 815, appears the following sound statement:

“To excuse the killing it need not, however, be made to appear that the danger was real and that the homicidal act was in fact necessary.”

Many cases are cited in support of the text, among others Meuly v. State, 26 Tex. App. 274, 9 S. W. 563, 8 Am. St. Rep. 477. We have found no case reversed for the use of such language when the remainder of the charge seems to correctly instruct the jury on apparent danger, though reason easily suggests the grave danger of giving the jury a charge containing this statement. They are to determine the rights of the accused from what they deem to have been his viewpoint at thg time he acted, and a statement by the trial judge, the lawgiver of the jury, that all self-defense rests upon necessity, and where there is no necessity to kill it cannot be self-defense, might very easily mislead the jury to the injury of the accused, whose right to kill in fact rested upon no actual necessity, but only on what appears to him to be a necessity. In the instant case, when the officers were seeking no more than the arrest of the accused, as contended by the state, it would not seem illogical that the deceased, having his pistol in his hand, and coming suddenly upon appellant, who had just before gotten away from him, might raise the pistol and say, “You won’t get away from us this time, you son of a bitch,” and from the jury’s standpoint might have intended no more than to arrest the accused, and they might conclude that no actual necessity existed for the killing in self-defense. It can thus be easily seen that the statement vof the trial court to the jury that there could be no killing in self-defense unless there was a necessity to kill could be interpreted by the jury so as to deprive appellant of that which has been accorded to him by the uniform holdings of this court — that is, that, if there appeared to him from his standpoint a reasonable necessity for taking life, he should be held justifiable.

Appellant further presses an exception to the remainder of said charge quoted. Let us examine said charge in its application to the facts. It will be found that there is no statement to the jury that in determining whether an attack was made upon appellant reasonably indicating a purpose on the part of the officer to kill or inflict serious bodily injury they must view the matter from his standpoint. The only place in the charge where there is reference to the duty of the jury to consider the matter from the standpoint of the accused appears in an abstract statement. It should have been given in a concrete application of the law to the facts in this particular case.

It is also contended that the charge only allowed the jury to determine that he was in danger at the hands of the deceased from the acts and conduct of the deceased in making an attack, and did not authorize the jury to consider also in this connection the word or words, if any, used by deceased accompanying some act. We believe this also to be a just criticism of the charge. Subdivision 1 of article 1105 of our Penal Code, in reference to self-defense against unlawful attack, is as follows:

“It must reasonably appear by the acts or by words, coupled with the acts of the person killed, that it was the purpose and intent of such person to commit one of the offenses above named.”

Many eases might be cited in which we have held that, when demanded by the evidence, a charge is too restrictive of the' right of self-defense which makes such right depend wholly on the acts of the injured party, and not his acts coupled with his words. In Dugan v. State, 86 Tex. Cr. R. 130, 216 S. W. 163, the matter is discussed and authorities cited.

We have examined each of the special charges requested by appellant, but, for one sufficient reason or another which we deem it unnecessary to discuss at length, we conclude that no reversible error appears from their refusal.

Nor do we think the court erred in refusing the charge in reference to the use of more force than was reasonably necessary on the part of the officers in effecting appellant’s arrest for the possession of intox-ieating liquor. If appellant was on trial for shooting one or both of the officers at the time they attempted to arrest him in his front yard, under his testimony to the effect that they attacked him in his car and dragged him out, there might be pertinence in this proposition; but it is claimed that he had gotten away from them, and gone into his house, and there secured a pistol, and had started out of his back door. According to his theory of what occurred out there, it would be a plain case of self-defense, while according to the theory of the state it would be a plain case of culpable homicide.

Nor do we think the trial court erred in giving the converse of the charge on self-defense in stating that, if the jury found that from appellant’s standpoint at the time that it did not reasonably appear to him that he was in danger of losing his life or suffering serious bodily injury at the hands of deceased, they should find against his plea of self-defense.

We would not deem the fact that the wife of deceased was permitted to be introduced as a witness for the state and to be accompanied into the courtroom by her child a reversible error.

The argument of state’s counsel will not be discussed, in view of our disposition of the case. It will probably not occur upon another trial.

For the error mentioned, the judgment will be reversed, and the cause remanded.

On State’s Motion for Rehearing.

MORROW, P. J.

The state, through counsel, challenging the soundness of the original opinion, points to that portion of the opinion in the case of Williford v. State, 38 Tex. Cr. R. 393, 42 S. W. 972, which reads as follows:

“ ‘All self-defense rests upon necessity. Where there is no necessity to kill, it cannot he self-defense.’ This is law.”

The sentences quoted are from a paragraph containing the following:

“Under peculiar circumstances, it would be necessary to qualify or explain what is meant by necessity. If the necessity was apparent only, then the charge might be calculated to mislead the jury, to the injury of the appellant; but, if the necessity was real, there is no .injury in the charge.”

The words, “all self-defense rests upon necessity; where there is no necessity to kill, it cannot be self-defense,” obviously do not state all of the law of self-defense. The writer of the opinion in Williford’s Case, supra, himself qualified and explained this statement with the admission that the charge embracing those words might be harmful and mislead the jury where the facts raise the issue of apparent danger. That this is true seems too clear for argument. A more comprehensive and accurate statement of the law upon the'subject of self-defense is found in the opinion of Presiding Judge White in Weaver’s Case, 19 Tex. App. 567, 53 Am. Rep. 389, from which we quote:

“Homicide is permitted by law when inflicted for the purpose of preventing the offense of murder, whether committed by the party about to be injured or by some person in his behalf; but the killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense. Penal Code, art. 570, and subdivision 2. In such circumstances the killing is justifiable on the principle of necessary self-defense. The whole doctrine of self-defense rests upon the comprehensive principle of reasonable necessity, and apparent reasonable necessity is the whole law of defense. It is the right to do whatever apparently is reasonably necessary to be done in warding off or avoiding serious injury under the circumstances of the ease.”

As stated in Coker’s Case, 59 Tex. Cr. R. 243, 128 S. W. 138:

“It would he the better practice to avoid giving a qualifying statement in the beginning of the charge on self-defense.”

The statement in the beginning of the charge that “all self-defense rests upon necessity; where' there is no necessity to kill, it cannot be self-defense,” or other similar or equivalent statement,' in the absence of additional qualifying or explanatory words, is hazardous in that it may be misleading. In the ease in hand, from the state’s standpoint, there was no necessity to kill the deceased. As the facts appeared to the jury on the trial, there may, in fact, have been no necessity for the appellant to have taken the life of the deceased. As viewed by appellant at the time, the danger may have been imminent. Under such circumstances, the statement in the charge that “where there is no necessity to kill, it cannot be self-defense,” was, as we have endeavored to show in the original opinion, calculated to mislead the jury.

For the reason stated, that under the facts of the case there was error rendering a reversal proper, the motion for rehearing is overruled.  