
    HAYS v. STATE.
    (No. 4744.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    1. Witnesses @=344(2) — Examination — Scope.
    In a prosecution for murder, it was error, after asking a witness if lie was not a deserter from the army and his reasons for such desertion, to inquire as to details, circumstances, and incidental matters.
    2. Homicibe @=5300(3) — Self-Defense — Instructions.
    In a prosecution for murder, instructions on self-defense that, if the jury believed defendant killed deceased, and that at the time of doing so deceased had made an attack on defendant, which from the manner and character caused defendant to have a reasonable expectation _ or fear of death or serious bodily injury, and acting under such reasonable expectation defendant killed deceased, they should acquit him; that a reasonable apprehension of death will excuse a party in using all necessary force to protect his fife or person, and it is not necessary that there should be actual danger, providing he act on the reasonable apprehension of danger as it appeared to him from his standpoint at the time —were erroneous as submitting the self-defense theory from the standpoint of the jury rather than from the standpoint of defendant, the charge not instructing the jury to view the transaction as defendant did at the time of the killing, but as they viewed it in light of testimony and events subsequent to the homicide.
    3. Criminal Law @=>829(5) — Self-defense-Instructions.
    'In a prosecution for murder, .an instruction that the jury should find for defendant, if deceased, by any act, induced the defendant to believe that deceased was about to inflict either death or serious bodily injury upon defendant, if at the time it reasonably appeared to defendant that it was then the intention of deceased to inflict death or serious bodily injury, that it did not matter whether the danger was real or merely colorable, if from defendant’s standpoint, taking into consideration all the circumstances, it would reasonably appear to him that he was in danger of serious bodily injury from deceased, and that under such circumstances he had a right to kill, although the danger did not in fact exist, was erroneously refused, where there were different theories made by the evidence as to the circumstances of the killing, and as to whether deceased was armed or not, and where instructions given did not cover such phases of the case.
    4. Homicide @=>309(4) — Manslaughter — Questions for Jury.
    In a prosecution for murder, "where deceased invited defendant to come outdoors with him, subsequent to a quarrel at a Christmas celebration, and made an attack upon him with a knife, the issue of manslaughter should have been submitted to the jury.
    Prendergast, J., dissenting in part.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Thomas Hays was convicted of murder, and be appeals.
    Reversed and remanded.
    Sid Crumpton, of Texarkana, and O. B. Pirkey, of New Boston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at a term of five years in tbe penitentiary.

The application for continuance will not be discussed as it may not occur upon another trial. Tbe witnesses may be obtained by that time.

There is a bill of exceptions reserved to tbe action of tbe court with reference to the examination and cross-examination of the witness Asbill. This witness was an important one for tbe state, and testified to tbe immediate facts attending tbe killing. Upon cross-examination be was asked if be was not a deserter from tbe federal army. This was answered in tbe affirmative, as shown by tbe statement of facts, but tbe bill indicates that be was not permitted to answer, on objection of tbe state. However, later tbe state recalled and proved by him that be was a deserter, and went into quite a lengthy detail of bis enlistment, bis history in tbe army, bis desertion, tbe wbys and wherefores for his desertion, his peregrinations over the country after bis desertion, and finally his return to tbe neighborhood of where this killing occurred, in which county be seems to have enlisted' in tbe army. This matter is not discussed particularly, because it may not occur upon another trial, and ought not to, as it occurred upon this trial as shown in this record. Tbe writer is of opinion that it can be shown that be was a deserter from tbe army, and his reasons for such desertion, but tbe long details and circumstances and incidental matters contained in this bill of exceptions should not have been permitted. Tbe bill of exceptions covers quite a number of pages and a great many exceptions. These matters will not be incorporated in this opinion, nor discussed further than stated.

Exception was reserved to tbe fifth and sixth subdivisions of the charge on self-defense, and a special charge requested, which was refused. In subdivision 6 tbe court instructed tbe jury that, if they should believe tbe defendant killed deceased, Bean, and at tbe time of doing so Bean bad made an attack on defendant, which from tbe manner and character of it caused the defendant to have a reasonable expectation or fear of death or serious bodily injury, and acting under such reasonable expectation and fear tbe defendant killed deceased, they would acquit him. Tbe fifth subdivision reads thus;

“A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided ho acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is, in no event, bound to retreat in order to avoid the necessity of killing his assailant.”

It will be noticed these charges submitted the self-defense theory from the standpoint of the jury rather than from the standpoint of the defendant, for that body was instructed if they should believe at the time of so doing the deceased had made an attack on the defendant, which from the manner and character of it caused the defendant to have a reasonable expectation or fear of death, etc. The charge should have instructed the jury not as they viewed it in the light of the testimony and the events subsequent to the homicide, but as defendant viewed it at the time of the killing.

The charge requested by appellant to meet what he deemed to be defects in the other paragraph of the court’s charge is as follows:

“You are charged the law to be that, should you find from the evidence that at the time the defendant killed the deceased the deceased, by any act done, or by words coupled with such acts, induced the defendant to believe that he (the deceased) was then in the act, or was about to inflict either death or serious bodily injury upon the defendant, and you further believe from the evidence that at the time it reasonably appeared to the defendant that it was then the intention of the deceased to inflict death or serious bodily injury upon the defendant, then, in such case, the defendant under such circumstances shot and killed the deceased, he would be justifiable, and you will find him not guilty. /You are further charged that, in such case, and under such circumstances, it matters not whether the danger was real, whether in fact it existed, or whether it was merely colorable, if, from the defendant’s standpoint, taking into consideration all the circumstances of the case, it would reasonably appear to him that he was in danger of death, or serious bodily injury from the deceased, he had the right to kill him, although in fact such danger did not exist.”

This charge should have been given. The court’s charge was not full enough. There were different theories made by the evidence, as is usual in such cases. There had been a previous difficulty between deceased and defendant some years prior to this transaction. On the' night of the homicide the deceased, Bean, and defendant were at a Christmas tree. Defendant went, at the request of parties, to take part in making music for the occasion with a string band, he being a performer on the guitar. Defendant himself did not own the guitar. Upon reaching the scene of the festivities it was discovered that strings could not be obtained for the instruments, and this part of the performance did not occur. The deceased was drinking. Just exactly the state of intoxication is not clear from the testimony. He made threats on the particular night against the life of appellant, and requested a witness named Smith to get defendant out of the house so he might kill him. A brother of appellant was present. These matters were known to several, but nobody would induce defendant to leave the house, and finally deceased himself went to and requested appellant to go out of the house with him. Appellant followed deceased to the door which opened upon a gallery, and declined to go farther. . Deceased insisted, but appellant declined. Up to this point there seems but little controversy or conflict in the testimony. The gallery was six or seven feet in width. Apxjellant was standing outside the door on the gallery. When deceased reached the steps he turned, when defendant declined to go farther. He had one foot on the step and one on the floor of the gallery. Some language occurred which is not necessary here to repeat, but deceased started at him with a knife in a striking attitude and the shooting occurred. Another theory was thatv deceased did not have a knife, and did not in fact make an attack or attempt to make an attack on appellant. There is other testimony to the effect that deceased started towards appellant as if to attack him. This phase does not mention the knife. So there seem to be three theories: One was that deceased was armed with a knife and making an attack, cutting at appellant; one that he did not make any attack and had no knife; and the other was he attempted to reach defendant, and the witnesses saw no knife. There was a knife, however, found on the ground an hour or two after the homicide, near where deceased fell. This is a sufficient statement. Under these theories, the court’s charge on self-defense was too restrictive, and the requested charge asked by appellant should have been .given. These matters are timely and properly presented in the record.

Appellant also contends, under this state of case, that the issue of manslaughter was raised. We are of opinion this contention is correct, and that upon another trial this phase of the law should be given in charge to the jury:

For the reasons indicated the judgment is reversed, and the cause remanded.

'PRENDERGAST, J. I think manslaughter was not in this case. 
      @=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     