
    MILAM v. STATE.
    (No. 11214.)
    Court of Criminal Appeals of Texas.
    Feb. 22, 1928.
    1. Homicide <&wkey;300(3)— Charge on self-defense held objectionable! as based on jury’s belief of deceased’s intention to kill, rather than de-fencfant’s belief.
    In prosecution for murder, instruction on phase of self-defense held erroneous as inhibiting acquittal if jury believed that deceased in unlawful attack did not intend to kill defendant; self-defense charge being erroneous if it authorizes jury to determine issue from their viewpoint rather than from that of defendant.
    2. Homicide <§=>300(3)— Charge on self-defense, hinging on actual intent to kill in mind of deceased, held erroneous.
    In prosecution for murder, charge on phase of self-defense, hinging acquittal on actual intent to kill in mind of deceased, held erroneous, since defendant cannot be bound by some hidden intention in deceased’s mind of which he had no knowledge.
    3. Criminal law <&wkey;>778 (.5) — Charge on self-defense requiring belief that deceased intended to kill held erroneous as shifting burden to defendant to prove innocence.
    In prosecution for murder, charge on phase of self-defense, requiring jury to believe that deceased intended to kill, held erroneous as shifting burden to defendant to prove his innocence and failing to give him the benefit of the law of reasonable doubt.
    4. Homicide <&wkey;300(2) —Charge on self-defense as against murder and justifiable homicide must be separated.
    In prosecution for murder, charge on issue of self-defense as against murder and justifiable homicide should be separated with proper explanation of applicability.
    5. Homicide <&wkey;>300(7) — Charge relative to self-defense is erroneous if issue is not- raised.
    In case issue of self-defense is not raised in murder prosecution, charge relative thereto was erroneous.
    Commissioners’ Decision.
    Appeal from District Court, Menard County; J. H. McLean, Judge.
    ■ D. A. Milam was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Wright & Gibbs, of San Angelo, and Frank Hartgraves, of Menard, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was indicted for the murder of Thad Crawford and was convicted of aggravated assault, his punishment being assessed at a fine of $150 and 60 days’ confinement in the county jail.

Appellant was a cement contractor, and deceased was working for him on the Callan ranch. All the parties were drinking. Appellant was a man about 65 years old, afflicted with heart trouble, and deceased .was a young man, 28 or 30 years old, and was a strong man, weighing about 160 pounds. The. testimony of all the eyewitnesses indicated that deceased in a drunken condition first tried to push appellant in the fire, after which he was about to attack him with a rock, when appellant hit him over the head with a shovel. He died about 24 hours later of concussion of the brain.

The court charged on murder, manslaughter and aggravated assault, and attempted to charge two phases of self-defense, one as applied to an attack by deceased producing a reasonable expectation, or fear 6f death or serious bodily injury, and the other an attack less than to kill or do serious bodily injury. In attempting to present the latter issue, he charged as follows:

“And, in this case, if you believe that Thad Crawford was making, or was about to make, an unlawful attack upon the defendant, but that there was no intent on the part of such party to kill the defendant, or to inflict upon him serious bodily injury, and that it did not reasonably appear to the defendant, viewed frbm- his standpoint at the time, that such attacking party did intend to inflict death, or serious bodily injury upon him, and that the defendant did resort to all other reasonable and accessible means to prevent such injury without avail, then the defendant would have the right to act in his own necessary self-defense, even to the extent of taking life, and, if you find the facts so to be, you should acquit the defendant. Under such conditions, the law does not require the defendant to retreat.”

This paragraph Was erroneous in the following particulars: In effect it inhibited an acquittal if the jury believed the deceased did not intend to kill. If submitted at all, it should have been as it reasonably appeared to appellant, not the jury. A self-defense charge is erroneous if it authorizes the jury to determine the issue from their viewpoint rather than from that of the defendant. Jordan v. State, 11 Tex. App. 447; Arthur v. State, 46 Tex. Cr. R. 479, 80 S. W. 1017; Branch’s P. C. § 1928.

The charge further hinged an acquittal upon an actual intent to kill in the mind of the deceased. Appellant could not be bound by some hidden intention in deceased’s mind which he did not know. Bode v. State, 6 Tex. App. 424. Branch’s P. O. § 1930.

Again, this charge shifts the burden to appellant to prove his innocence. Shamburger v. State, 24 Tex. App. 433, 6 S. W. 540; Branch’s P. C. p. 5, at bottom. It likewise fails to give appellant the benefit of the law of reasonable doubt.

As written the paragraph can be made to apply as well to self-defense in a homicide case as in an aggravated assault case. The jury were left to appropriate this charge in determining the issue of self-defense as against both murder and manslaughter. Plainly such, a charge could never apply to a case where justifiable homicide was an issue and the two character of self-defense charges should have been separated with a proper explanation of the applicability of each.

Quoting from Kendall v. State, 8 Tex. App. 579:

“The law makes different provisions for the exercise of the right of self-defense or the protection of another, according to the gravity, actual or apparent, of the attack; and the character of the attack must usually he determined by the judge in the first instance, before he delivers his charge to the jury. If the attack of the person slain was manifestly with intent to murder or maim — that is, made with weapons or other means calculated to produce either of those results — then there is no occasion to instruct a jury as to the law which obtains in case the attack was of a milder character, because such law is not applicable to the case, and can subserve no purpose other than to confuse the jury. On the other hand, if -the attack clearly comes within the meaning of ‘any other unlawful and violent attack’ than with intent to mu?der¡ or maim, or seriously injure, then the law governing the graver attacks should be altogether discarded as inapplicable. It can seldom happen in any case that such a determination by the judge can be attended with serious embarrassment, because it is only required to contemplate the weapons or means used by the assailant in the first instance, and if they are such as would have been calculated to produce death, or mayhem, then the law fixes the character of the assault. Penal Code, art. 571. But if, upon the trial of any case, the peculiar state of the evidence renders it necessary, in the opinion of the judge, to submit to the jury the law governing the right of resistance to either character of attack, then great caution must be exercised in framing instructions, and the jury must be impressed with the distinctions which obtain in each case, in order that they may not apply to the one the law applicable to the other.”

The testimony, some of which is indicated above, raises a serious question as to whether there existed such an issue as was attempted to he charged. If such issue is not raised, the charge quoted above is always erroneous. Fleming v. State, 101 Tex. Cr. R. 19, 274 S. W. 616; Branch’s P. C. p. 1071. Some of these errors, of course, pass out of the case due to the conviction of aggravated assault.

Appellant’s special charge No. 4 is a more correct presentation of this particular phase of self-defense. See Forest v. State (Tex. Cr. App.) 300 S. W. 51, and authorities there cited.

Other errors presented are not such as will • likely occur on another trial and are not discussed.

The judgment is reversed and the cause remanded.

PER OURIAM. 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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