
    McJUNKIN v. STATE.
    (No. 9972.)
    (Court of Criminal Appeals of Texas.
    March 10, 1926.)
    Homicide &wkey;>30l — Instruction held erroneous, in limiting right to shoot in defense of oo-employé, to prevent deceased from murdering him, and requiring finding that he was being assaulted with deadly weapon.
    Instruction on right of accused to shoot in defense of her coemployé held erroneous, in limiting right to do so to prevent deceased from murdering him, and requiring finding that he was being assaulted with deadly weapon.
    Commissioners’ Decision.
    Appeal from District Court, Wichita County;' P. A. Martin, Judge.
    Eairella McJunkin was convicted of manslaughter, and she appeals.
    Reversed and remanded.
    Davenport, Cummings & Crain, of Wichita Falls, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is manslaughter, and the punishment is 2 years in the penitentiary.

The appellant is a 17 year old negro girl, and the deceased was a white man, married and employed as a switchman in the yards of the Fort Worth & Denver Railway Company. The state’s testimony shows that de. ceased and his brother and one Brown went to what is known as O. C. Williams’ store near where deceased was working. • This was a negro store and restaurant, and the defendant was a waitress in the restaurant, and when deceased and his party went to the store appellant and a negro hoy were therein ; deceased asked for Williams, and appellant said hé was not there; deceased then turned around and walked out. Brown testified that he was in the rear, and deceased was in ahead of him, and after they started out appellant was behind the counter and deceased made a gesture at her, but Brown claims he did not touch her, and the negro boy said, “Mind out what you are doing”; that deceased merely waived his hand at her and was smiling at the time. It seems from Brown’s testimony that after they got out of the store some question was raised as to what the boy said to Carroll, and Carroll decided he would go back and see. • Carroll returned into the store and left Brown and the other party who had been with him outside, and Brown testifies that immediately after Carroll returned into the store he heard the report of a gun, and Carroll was found with a bullet through his head, from which he aft-erwards died.

Appellant’s version of the affair was to the effect that she and W. B. Banks, the stepson of Williams, were working in the restaurant, and deceased, Brown, and deceased’s brother came in the store, and deceased asked for Williams, the proprietor, and that appellant told him he was not there, whereupon she claims deceased said she was a damned liar, and then he got a bottle of soda water and drank it, and after he drank the soda water he again asked for Williams, and she told him he was not there, and he turned to walk away and slapped her, and he felt down along her limbs, and she looked at him and said, “Don’t do that again,” and Banks, the negro boy, told deceased not to do that again ; that deceased turned around, and walked out and came back about 5 minutes later, and when he came in he said, “You damned ne-groes act like you are sore at me hitting you,” and she reiflied “Yes; it made me sore,” and the negro boy, Banks, said, “I don’t want you to do it again,” and deceased said, “I will do it again if I want to, and don’t you get so damned smart,” and he further said, “I will pick up something and knock your damned brains out.” After some further words, appellant testified that deceased hit her while she was over by the ice box, and when she looked up he had the negro boy over in the corner against the wall and hit him some awful licks with his right fist, that there were about 4 or 5 empty soda pop cases with some empty bottles, and he picked up one of the bottles and raised up and came down like he was going to hit the boy on the head, and that she then ran behind the counter and got the gun and fired, hitting deceased, from the effects of which he died. It was undisputed that Bank’s finger was hit by the same shot that killed deceased.

Complaint is made at the action of the court in submitting the law pertaining to the defense of another. On the question of appellant’s right to shoot in defense of Banks, the court instructed the jury that, homicide is permitted by law for the purpose of preventing the offense of murder, and then instructed the jury that, if they find and believe that at the time the deceased was killed he was in the act of assaulting Banks with a soda pop bottle, and that said bottle was a deadly weapon in the manner it was being used and if it was used, and that from the nature and character of such assault, if any, it reasonably appeared to the defendant, judging the matter from her standpoint, that the deceased was about to murder the said Banks, or to inflict on him some serious bodily injury, and that, acting upon such reasonable apprehension of danger to said Banks, she shot and killed the deceased, then to acquit the defendant.

Appellant objected to this charge as unduly restricting her right to shoot in defense of Banks. She requested the court to give a special charge on this issue which, in a measure would have cured the defect pointed out in the charge given. The vice in the charge actually given was that it in effect limited appellant’s right to shoot in defense of Banks to prevent deceased murdering the said Banks. We think it was also erroneous in requiring the jury to find that Banks was being assaulted by the deceased with a deadly weapon before appellant would have the right to act in-defense of Banks. While the testimony shows that deceased was assaulting Banks with the bottle, yet there is also testimony in this record to the- effect that he had violently and viciously assaulted Banks with his fist, and under this condition of the record it is not proper to limit the appellant’s right to defend Banks against the assault made by deceased with a deadly weapon. On the other hand, she was authorized to defend against an attack on Banks which was less than deadly, provided she used no more force than to her seemed reasonably necessary. On another trial we think the learned trial judge should correct his charge to conform to the suggestions herein made. Britton v. State, 253 S. W. 519, 95 Tex. Cr. R. 209; Schutz v. State, 257 S. W. 880, 96 Tex. Cr. R. 287; Dickey v. State, 268 S. W. 462, 99 Tex. Cr. R. 83.

For the errors above discussed, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. 
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