
    JACKSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 15, 1912.)
    1. Homicide (§ 300) — Instructions — Self-Defense.
    In a prosecution for homicide, where it appeared that accused attended a party at the house of the person he attempted to kill, that after the host had ejected accused’s nephew he twice armed himself with a shotgun and attempted to step out on a gallery, but that the guns were taken from him, and that when the killing took place the host had armed himself with a quart whisky bottle, and was attempting to strike accused, the issue of self-defense is presented, and should be noticed in the charge.
    [Ed. Note'. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dee. Dig. § 300.]
    2. Homicide (§ 109) — Defenses.
    In a prosecution for the killing of a bystander, whom accused shot in attempting to shoot his assailant, self-defense is a valid defense.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 138, 139; Dec. Dig. § 109.]
    Appeal from District Court, San Jacinto County; D. B. Hightower, Judge.
    Verge Jackson was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    J. V. Dea, J. M. Hansbro, and Wm. Me-Murrey, all of Cold Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of manslaughter; his punishment being assessed at five years’ confinement in the penitentiary.

Reversal is asked because of the failure of the court to charge upon the issue of self-defense. A brief summary of the testimony will disclose there was what the witnesses call a “birthnight party” at the house under the control of Richard Eldridge. A play of some sort was going on in one of the rooms. Virgil Carter, a nephew of appellant, interfered with the play, and was put out of the house roughly by Eldridge. In putting him out of the house, Eldridge struck Carter in the mouth, causing it to bleed. A brother of Carter came up and asked what it meant. Eldridge told him that he had put Virgil Carter out, and if he were to do the same way he would put him out. Eldridge states that about that time he heard some one in the yard remark, “I will kill him,” but did not know who made the remark. The fact that this remark or threat was made was controverted. Upon hearing this, Eldridge says he went in the room and got a shotgun, which was taken away from him. Some of the witnesses testified that when this gun was taken away from him Eldridge went back into the room and got another shotgun, which was also taken from him. 1-Ie returned where the crowd was collected on the gallery, or in the hallway. The testimony as to the immediate facts is in considerable confusion as to whether or not appellant put his hand in his bosom or jumper, where he subsequently got his pistol, before Eldridge drew a whisky bottle, of quart size, in a striking attitude. At the time the shot was fired, Eldridge had the bottle drawn. The shot missed Eldridge and hit Denson, which resulted fatally in about 24 hours. There seems to be no question of the fact that appellant had nothing against Denson, and may not have seen him; but, be that as it may, if appellant fired the shot, it was fired at Eldridge, and not at Denson. This puts the case as strongly for the state as the record admits. Facts might be collated which place the evidence somewhat weaker' for the state.

This brief summary is made in view of the contention that self-defense is in the case. The court did not submit tbe issue of self-defense. If appellant shot at Eldridge under the circumstances stated, we are of opinion that self-defense was an issue. Eldridge had gotten two guns, which were taken away from him. He then returned to the scene of the 'trouble, and about the time he returned appellant came upon the scene. It is left in doubt as to whether Eldridge made the first demonstration with the quart bottle, or appellant placed his hand where he subsequently got his pistol. Twice Eldridge had gotten a shotgun and came out from the room where the crowd was, both of which were taken from him. Under these circumstances, we are of opinion that the issue of self-defense was in the case, so far as it related to the witness Eldridge. If it was in the case as to Eldridge, then it unquestionably was in the case as to Denson. If, in shooting at Eldridge from the standpoint of self-defense, he shot an innocent bystander, the offense ooulá bé no higher than it would have been had appellant shot Eld-ridge. This being so, it would follow that it was in the case as against the unintentional shooting of Denson. The authorities in this state are clear upon this question, and it is unnecessary to cite them.

B'ecause the court failed to charge upon the issue of self-defense, the judgment will be reversed and the cause remanded.  