
    DUNNE v. STATE.
    (No. 9424.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1925.)
    Homicide <&wkey;>300(3)— Failure to instruct as to defendant’s right to arm himself and approach deceased for stated: purpose held reversible error.
    In murder, trial, failure to instruct jury as to defendant’s right to arm himself and approach deceased to remonstrate with him against letting his stock run in defendant’s field 'held reversible error.
    Commissioners’ Decision.
    Appeal from District Court, Coryell County ; J. B. Keith, Judge.
    W. G. Dunne was convicted of murder, and appeals.
    Reversed and remanded.
    McClellan & Cross, of Gatesville, 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 murder; and the punishment is seven years in the penitentiary.

This is a second appeal of this case, the opinion on former appeal being found in 98 Tex. Cr. R. 7, 263 S. W. 608.

There are many serious questions raised by appellant in his brief. A discussion of the most of these is deemed unnecessary, in view of the fact that they may not arise in the same form on another trial of the case.

By hill of exceptions No. 19, appellant complains at the court’s action in refusing to instruct the -jury upon the right of the defendant to arm himself and approach the deceased at the time of the difficulty for the purpose of demanding that deceased should keep his stock out of defendant’s field. The evidence clearly raised this issue, at least from the standpoint of that introduced by the defendant. In his charge to the jury, the court charged on provoking the difficulty and in so doing limited and qualified the appellant’s right of self-defense, and having qualified the right of self-defense by the charge mentioned, we think there can be no doubt but that the court should have amended his charge upon exception being urged to it and should have distinctly instructed the jury that it was the right of the defendant to arm himself and approach the deceased for the purpose of remonstrating with him against letting his stock r,un in the appellant’s field. This principle we think is in accord with the rule long standing and often applied in this state. Clark v. State (Tex. Cr. App.) 268 S. W. 465; Brazier v. State, 100 Tex. Cr. R. 157, 272 S. W. 454; Moore v. State, 96 Tex. Cr. R. 493, 258 S. W. 476; Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17; Fox v. State, 71 Tex. Cr. R. 318, 158 S. W. 1143. The above authorities are so clearly in point as to make a further discussion of the question unnecessary.

As above indicated, the other questions so earnestly presented by appellant will probably not occur in the same form in the event of another trial, and a discussion of them is deemed unnecessary; but for the error of the court in failing to charge on the appellant’s right to arm himself and seek the deceased for the purpose of remonstrating with him against his conduct in allowing his stock to rim in the appellant’s field, the judgment 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.  