
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 7, 1910.)
    1. Homicide (§ 301) — Trial—Instructions— Defense of Another — Failure to Charge.
    In a prosecution for homicide, where defendant maintained that he had done the killing in defense of his brother, the court charged the jury that everj; person was permitted to defend himself or his brother, etc., and in the same charge, in applying the law to the facts, instructed the jury that if they believed that, when defendant cut deceased with a knife, it was a necessary, measure to protect himself, they should acquit. Meld,, that this charge was too restrictive, for it should have charged the jury on the facts as to the right of defendant to kill in defense of his brother.
    [Ed. 'Note. — For other cases, see Homicide, Cent. Dig. § 933; Dec. Dig. § 301.]
    2. Homicide (§ 122) — Excusable Homicide —Defense of Another.
    A homicide committed in defense of one’s brother is excusable.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 177-181; Dec. Dig. § 122.]
    Appeal from District Court, San Augustine County; W. B'. Powell, Judge.
    Arch Johnson was convicted of manslaughter, and appeals.
    Reversed and remanded.
    John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   McCORD, J.

Under an indictment for murder, the appellant was convicted of manslaughter, and awarded a term of five years’ confinement in the penitentiary.

But one question is presented in this record, and that is whether the court should have charged the jury on the right of the defendant to defend against an assault made upon his brother. From the statement of facts it appears that .the defendant, in company with the deceased, Willie Garrett, Deck Johnson, and several other parties, repaired to the bottom to engage in the most faci-nating and luring game of craps, and the fact that the game was craps and was play-» ed in the bottom will suggest that the crowd were negroes. It seems that deceased went broke in the game, and went to his home for additional supplies. When the betting reached the point of 75 cents, some of the parties engaged in the game passed out, because the limit was too high. The deceased and Deck Johnson, brother of defendant, continued in the game. Finally a squabble sprang up between the deceased and Deck Johnson about a quarter that fell on the ground, and in the squabble over this quarter the deceased snatched up a stick of wood. Some of the witnesses call it a “chunk”; others describe it as a heavy piece of wood — the witnesses varying as to the length, size, and weight of this stick in the hands of deceased. Deceased struck Deck Johnson with it, and from that there was a general fight, resulting in Willie Garrett being cut, from which he died. Deck Johnson, a brother of defendant, testified that the deceased grabbed a quarter' from him, and he tried to make him give it up, when the deceased — so the witness states — knocked witness down, and, when Arch Johnson walked up, he knocked Arch, the defendant, down, and knocked him down twice, and struck at the witness again, at which time he was cut. The defendant testified that the deceased jerked up a piece of wood, and knocked Deck Johnson dowm, and then knocked defendant down, and, as he was getting up, he knocked him down again, and struck his brother, Deck Johnson, and when he did that he reached out and cut deceased with his knife.

The court charged the jury as follows: “Every person is permitted by law to defend himself, or his brother, against any unlawful attack reasonably threatening injury to his person, and is justified in using all the necessary and reasonable force to defend himself or his brother, but no more than the circumstances reasonably indicate to be necessary, viewed from the defendant’s standpoint. Homicide is justified by law, in defense of a brother or one’s self against an unlawful and violent attack, made in such manner as to produce a reasonable expectation or fear of death or some serious bodily injury. Now, if you believe that, at the time the defendant cut the deceased with the knife, he was then making an attack on him with a stick, and it became and was necessary for the defendant, to protect himself against said unlawful attack then being made upon him, if any, to cut the deceased, viewed from the defendant’s standpoint, and for his own protection against said assault, if any, he did cut and kill deceased, he would not be guilty and you will acquit him.” This is all the law that was given by the court for their instruction and guidance on this point. Appellant filed a motion for new trial, and complained of the action of the court in failing to charge affirmatively on the law of self-defense, as applying to the right of one brother to protect the life of another brother from an assault that threatened death or serious bodily injury. While the court stated generally the right to defend his brother from a murderous attack, yet, when he came to apply the law to the facts of the case, he limited the right of the defendant to defend himself against an attack made upon him. This, to our minds, was too restrictive. The court should have also directed the jury that, if there was an assault made upon the brother of defendant that threatened death or serious bodily injury, defendant would have the same right to defend as he would to defend himself. The abstract proposition made by the court was correct, and, if it had been followed up with the application of the law to the facts of the case, no complaint could have been effectively made.

For the omission of the court to properly instruct the jury upon the right of self-defense growing out of an assault made upon the brother of defendant, this case will have to be reversed.

Reversed and remanded.  