
    MOON v. STATE.
    (No. 12301.)
    Court of Criminal Appeals of Texas.
    April 10, 1929.
    State’s Rehearing Denied June 26, 1929.
    E. J. Cussen, of Canadian, Jack Allen, of Perryton, Hoover & Hoover, of Canadian, H. L. Adkins, of Amarillo, Walter Allen, of Stin-nett, and Kinney & Ritchey, of Miami, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for 12 years.

Appellant and one Carlson had married sisters. In 1922 appellant rented a section of land from his father-in-law. Appellant’s father-in-law died in 1926, and in 1927 the land on which| appellant was living was partitioned among the heirs. Appellant’s wife received 213 acres out of the northeast corner of the section, and Mrs. Carlson was awarded. 213 acres on the east side of the section, just south of the land of appellant’s wife. Appellant had lived on the section of land from 1922 until the time said land was partitioned. A portion of Mrs. Carlson’s land was inclosed in one pasture with the land of appellant’s wife. There was a fence between Carlson’s land and that of appellant’s wife. Appellant had kept this fence up. Deceased, A. W. Cline, according to the state’s testimony, had rented approximately 35 acres of the Carlson land. According to appellant’s testimony, he (appellant) had rented the Carlson land prior to the time that Cline had rented 'it, and his lease had not expired. On the date of the homicide, according tof the testimony of appellant, he was in rightful possession of the land, and had control and possession of the line fence between his wife’s land and the Carlson land. Deceased undertook to remove the boundary fence. Being approached by appellant, he advised appellant that he had rented the land and had the right to remove the fence. Appellant demurred, and according to his (appellant’s) testimony went to town for tlie purpose of obtaining advice from a lawyer. Deceased bad given appellant no notice that tbe fence would be removed. Finally, after having visited tbe place where deceased was removing tbe fence, appellant advised deceased that be must desist. Deceased, stated to appellant that be would) see Carlson. Deceased left tbe premises, but later returned. Appellant testified that on tbe occasion of tbe homicide deceased had returned to tbe fence and was preparing to remove it. Appellant got his shotgun and went to tbe fence. He approached deceased, according to bis testimony, and, ordered him off of tbe place. He testified that deceased picked up a hammer and raised it as if be were going to strike him; that be pointed his gun at deceased’s breast; that be bad no idea of shooting deceased, but intended to prevent him from bitting him with tbe hammer; that he decided, from tbe expression on deceased’s face, that bei had given up, and that be lowered tbe gun; that be bad bis finger on tbe trigger, and that as be lowered tbe gun be accidentally fired it. Deceased was shot about 6 or 6 inches above tbe knee, the wound ranging downward. He died as a result of tbe wound,

Tbe court submitted tbe law of murder, self-defense, and accidental homicide. Appellant timely and properly excepted to tbe failure of tbe court to submit an instruction covering the law; of defense of property. He also presented several special charges covering tbe subject. We are. of tbe opinion that tbe charge should have been given. See articles 1222, 1224, and 1227, P. C. 1925. According to appellant’s testimony, be bad rented the land from Carlson, and w;as in possession of tbe boundary line fence between bis land and Carlson’s land at tbe time deceased was attempting to remove said fence. He testified that 'be bad requested deceased to let tbe fence remain, and that be bad advised deceased that be bad rented tbe land upon which tbe fence bad been erected from Carlson. He said that deceased bad returned to bis land after having left at bis request, and bad again attempted to remove tbe fence, and that be approached deceased for tbe purpose of forcing him to desist. While tbe testimony raises tbe issue of self-defense, tbe issue of defense of property is also raised. It Is well settled that, when tbe evidence has a tendency to raise tbe issue of defense of property, it is incumbent upon the court to give a charge covering such issue. If deceased used force in an effort to deprive appellant of bis- property, appellant bad tbe right to use whatever force was reasonably necessary to repel an aggression upon bis property, in order to prevent it from being taken from him, even to tbe extent of killing, after every other effort in bis power bad been made to repel tbe aggression. Gilliam v. State, 100 Tex. Cr. R. 67, 272 S. W. 154, and authorities cited; subdivision 4 of article 1227, P. C.

Tbe objections to paragraph 8 of tbe court’s charge seem to have been well taken. It is suggested that upon another trial tbe form of charge laid down by Judge Ramsey in tbe case of Best v. State, 58 Tex. Cr. R. 327, 125 S. W. 910, should be followed. See, also, Harris v. State, 101 Tex. Cr. R. 33, 274 S. W. 568.

Por tbe failure to submit a charge covering defense of property, tbe judgment is reversed, and tbe cause remanded.

PER CURIAM. Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.

On Motion for Rehearing.

MORROW, P. J.

Attention is directed to some inaccuracies in tbe synopsis of tbe evidence. There was testimony to tbe effect that tbe fence over which the controversy arose was situated on land which was under the control of tbe appellant. In calling it a “boundary fence” we were unhappy in tbe choice of words, and in stating tbe acreage of tbe Carlson land rented by tbe deceased we were inaccurate. Tbe discrepancies, however, are entirely without weight on tbe legal question upon which tbe case turns. Tbe evidence to the effect that tbe fence which it is claimed deceased was about to remove was upon tbe land under tbe control of and in possession of tbe appellant, together with the other facts set out in the original opinion, exhibit the necessity of complying with tbe request of tbe appellant that tbe jury be instructed on tbe law relating to homicide in defense of property. See Griffin v. State, 100 Tex. Cr. R. 641, 274 S. W. 611.

Tbe state’s motion for rehearing is overruled.  