
    GAITHER v. STATE.
    (No. 11244.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    1. Homicide <&wkey;300(l2) — Failure to charge on presumption that deceased’s possession of deadly weapon was with intent to inflict injury held reversible error (Pen. Code 1925, art. 1223).
    Where evidence, in murder prosecution, that deceased, after first controversy, procured a gun, and returned to vicinity of controversy, and came on defendant in the dark, raised issue of use of a deadly weapon by deceased, and, under Pen. Code 1925, art. 1223, absolute presumption followed that deceased designed to inflict injury with it, failure to charge on issue raised thereby was reversible error.
    2. Homicide &wkey;5300(l4) — Evidence that deceased procured gun after first controversy called for charge on danger reasonably appearing to defendant.
    In murder prosecution, evidence that, after first controversy with defendant, deceased left vicinity, and procured gun, and returned and attacked defendant in the dark, raised issue of self-defense, based on apparent danger, and court should have charged on danger as it reasonably appeared to defendant.
    3. Criminal law <&wkey;822(I) — Charge must be considered as a whole, and isolated paragraphs considered with relation to entire charge.
    A charge must be considered as a whole, and isolated paragraphs therein, not considered alone without relation to remainder of charge.
    Appeal from District Court, Eort Bend County; M. S. Munson, Judge.
    Forest Gaither, Jr., was convicted of murder, and he appeals.
    Reversed, and cause remanded.
    See, also, 105 Tex. Cr. R. 350, 288 S. W. 456.
    McEarlane & Dillard, of Houston, Nat Llewellyn, of Marlin, and Williams, Williams, McClellan & Lincoln, of Waco, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, murder; penalty, 40 years in the penitentiary.

Appellant and deceased, T. J. Wells, were both employees of the state penitentiary system, working as guards at a convict camp. A sufficient statement of the facts to illustrate the law points discussed is briefly as follows:

In a controversy between appellant and deceased a short time preceding the tragedy, appellant. applied, to deceased a vile epithet. According to appellant and his witnesses, deceased left immediately, went to a guardhouse, procured a gun, and returned to the vicinity of the prior controversy. During this time, he made some 'threats against appellant. Appellant testified that he was trying to avoid deceased; that ■ deceased came upon him in the dark; that he had a gun raised and he believed deceased was intending to shoot him, and he shot and killed him. A gun' was subsequently found near the scene of the killing, loaded with buckshot, with the hammer of the left barrel cocked.

We have stated the evidence in the most favorable light to appellant, since it was this evidence which appellant claims raised the issue hereafter discussed.

The court charged on murder, manslaughter, threats, and self-defense, but failed to give in charge article 1223 of the Penal Code and the law applicable thereunder, which article reads’ as follows:

“When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration, are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.”

This article is a part of the law of homicide in Texas, and, where the evidence raises the issue of the use of a deadly weapon by deceased, it is an absolute presumption imperative to juries, as well as courts, that deceased “designed to inflict the injury” mentioned in said article, and same must be given in charge to the jury. Kendall v. State, 8 Tex. App. 569; Carter v. State, 97 Tex. Cr. R. 508, 262 S. W. 79; Mason v. State, 88 Tex. Cr. R. 642, 228 S. W. 952; Branch’s P. C. § 1918; 2 Yernon’s P. C. 1925, p. 358. The failure of the court to charge on this issue was reversible error.

In presenting the law of self-defense, part of the language in the beginning of said. charge is that, “if you further believe from-the evidence, or have a reasonable doubt thereof, that, at the time of such killing,, if any, the said T. J. Wells did attack defendant,” etc. The quoted testimony raises the issue clearly of self-defense based upon apparent danger, and called for a charge from the court of danger as it “reasonably appeared to the appellant.” The paragraphs of the court’s charge basing self-defense upon threats and upon actual and apparent danger are subject to the criticism that they authorized the jury • to view the situation from their standpoint rather than from that of the appellant. ' Quoting from the 'authorities :'

“It is a fundamental proposition in self-defense that the killing must be viewed from the standpoint of the defendant, as understood by him at the time he acted. The standpoint of defendant in self-defense is the essential and pivotal point of the doctrine' of that phase of the law. The accused is not tried from the standpoint of the other, side.” Singleton v. State, 86 Tex. Cr. R. 401, 216 S. W. 1094.
“The 'charge on self-defense must be clearly and affirmatively submitted as viewed from the defendant’s standpoint, and not from that of the jury.” Williams v. State, 61 Tex. Cr. R. 361, 136 S. W. 771, 773. See, also, Carlile v. State, 90 Tex. Cr. R. 1, 232 S. W. 822. Branch’s P. C., sec. 1926, and Branch’s P. C. p. 1074.

These authorities will indicate to' the trial court the vice in his charge.

There is in immediate connection with these paragraphs, on self-defense a charge on apparent danger, which instructs the jury that the situation must be viewed alone from the standpoint of the defendant as it reasonably appeared' to -him at the time. This was a correct presentation of the law, but in view of the fact that the other .paragraphs are somewhat contradictory, and in view of the disposition vye make of this case, we have thought best to call the court’s attention to the error immediately above discussed, .though we are not prepared to hold that we would reverse alone upon this point, since the charge as a whole might'not have misled the jury.

Many other complaints are: presented with reference to the court’s charge which would appear to. have merit if isolated paragraphs are considered alone without -relation to the remainder of the charge. As has been many times stated and reiterated, the charge must be considered as a whole. While the court’s charge in many respects- is somewhat inaccurate, we will assume the court-on another- trial will correct his charge to meet appellant’s objections, though we are not prepared to hold said inaccuracies constitute reversible error.

Because the court failed to charge the law of presumption arising from the use of a deadly weapon by -deceased, 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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