
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.)
    L Homicide (§ 276) — Questions for Juey —Self-Defense.
    On a trial for murder, where accused claimed that he mistook deceased for his brother A., with whom he had had trouble and for whom he had been warned to look out as he was armed and likely to kill him, accused’s testimony that as deceased came towards him he shifted his hat from his right to his left hand, that he was looking accused straight in the face with his eyes glaring' and walking rapidly, and that as he came rushing towards accused he made a motion back with his right hand, • whereupon accused fired, was sufficient to raise the issue of self-defense, if accused in fact thought the person approaching was A., but not if he knew that it was A.’s brother.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. § 569; Dec. Dig. § 276.)
    2. Ceiminal Law (§ 413) — Evidence — Exculpatory Circumstances Subsequent to Crime.
    On a trial for homicide, where accused claimed that he mistook deceased for A., with whom he had had trouble and for whom he had been warned to look out as he was armed and likely to kill him, where the evidence as to deceased’s acts- and conduct was sufficient to raise the issue of self-defense if accused in fact believed that he was A., and where the state sought to show that accused was acquainted with deceased and A. and could not have been and was not mistaken, it was error to exclude proof as to accused’s acts, words, and conduct upon first learning, as he claimed, that the person killed was not A., which tended to support his claim that he was mistaken as to deceased’s identity, but other conversations, after he had been informed that the person killed was not A. and had time to reflect, were properly excluded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.]
    3. Homicide (§ 187) — Evidence—Character of Parties.
    On a trial for homicide, where accused claimed that he mistook deceased for A., with whom he had had trouble and for whom he had been warned to look out as he was armed and likely to kill him, the state was properly permitted to prove that A.’s reputation as a peaceable law-abiding citizen was good.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 390, 390y2; Dec. Dig. § 187.]
    4. Homicide (§ 188) — Evidence—Character of Parties.
    On a trial for homicide, where accused claimed that he mistook deceased for A., with whom he had had trouble and for whom he had been warned to look out as he was armed and likely to kill him, and where accused had not attacked deceased’s reputation, claimed that deceased had made any threats, nor stated that he feared or had reason to fear that deceased would harm him, and did testify that he would not have shot if he had known that it was not A., it was error to admit evidence of deceased’s good' reputation as a peaceable law-abiding citizen.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.]
    5. Homicide (§ 295) — Instructions—Manslaughter-Applicability to Issues.
    On a trial for homicide, where accused claimed that he mistook deceased for A., who had assaulted his daughter, an instruction on mam slaughter, that the act must be directly caused by the passion arising out of the provocation, and that it was not enough that the mind was merely agitated by the passion arising from some other provocation “or a provocation given by some other person than the party killed,” was inapplicable and should not have been given.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    6. Homicide (§ 17) — Grounds of Excuse or Justification.
    Where accused shot deceased believing that he was A., he was entitled to all the defenses to which he would have been entitled if the person shot had in fact been A.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 23; Dec. Dig. § 17.]
    7. Homicide (§ 300) — Instructions—Self-Defense.
    On a trial for homicide, where accused claimed that he mistook deceased for A., with whom he had had trouble and for whom he had been warned to look out as he was armed and likely to kill him, and where the evidence as to deceased’s conduct at the time of the homicide was sufficient to raise the issue of self-defense if accused in fact believed that it was A., an instruction, that homicide was -justifiable when committed in necessary self-defense, that this occurred when one was attacked in such manner as to produce a reasonable apprehension of death or serious bodily injury or where it reasonably appeared from the “act or acts coupled with the words of the person killed” that the killer was thereby in danger of death or serious bodily harm, and that if he killed to protect himself from such danger or apparent danger then the killing was justifiable, was erroneous as excluding the acts and. conduct of A. from the consideration of the jury on the question of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Bed River County; Ben H. Denton, Judge.
    S. C. Wilson was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Kennedy, Watson & -Robbins, of Clarks-ville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted, charged with murder, and convicted of manslaughter.

In this case it appears that Alfred Dif-fie, a young man, called to see a daughter of appellant one Saturday night, and the next night she went to church with her parents; Alfred Diffie accompanying her home. Her mother and father getting home first, lighted the parlor, and retired to their rooms; her father undressing preparatory to retiring. Mr. Wilson says after some minutes lie heard a noise and heard his daughter calling him; he rushed in the parlor, and Alfred Diffie had his daughter on the floor, one hand over her mouth to keep her from hollering; her dress pulled up exposing her limbs, while he was down over her. Young Diffie admits that appellant came rushing into the room in his night clothes, but says he and the daughter were standing up; he merely having hold of her hands. Both agree that an altercation immediately ensued in which Diffie’s shirt and collar were torn off of him; appellant at the time calling to his wife to bring' his gun. Alfred escaped and ran off, leaving town that night and going out in the country to spend the night. It is also shown that Alfred went to the drug store and purchased some cundrums before going to Mr. Wilson’s; he testifies that he secured them to have intercourse with another party. A man in the drug store says, however, that appellant made remarks at the time indicating the party he was thinking of was appellant’s daughter. Appellant made threats to kill Alfred Diffie, but was persuaded to go to Alfred’s father, explain the circumstance to him, and ask him to send Alfred away, saying at the time if he met Alfred he felt that he would kill him. Judge Diffie did send Alfred away, bu,t he returned • home on the night of July 3d. On July 4th appellant was informed that Alfred had returned, and was warned that Alfred was armed, and was likely to kill him (appellant). He did not go to see Judge Diffie again, but sent him word that he had promised to send Alfred away, and insisted on him doing so, saying that if he met him he did not think he could control himself, but would kill him. Judge Diffie did send Alfred away on the night of July 4th, but appellant did not learn of that fact. He inquired after the 4th and before the day of the killing, and was informed by those of whom he inquired that they did not know, but thought he was still in Detroit. On Sunday, appellant, his wife, and daughter all attended church; the services being held in the tabernacle in that town. Wilmer Diffie, a younger brother of Alfred, also attended church, and sang in the choir. Appellant says he saw Wilmer Diffie and thought it was Alfred, thinking he saw Wilmer Diffie in the choir also. Several testify to appellant’s nervous condition during the services; some saying that he kept his eyes on that portion of the choir where young Diffie sat. At the close of services appellant walked to one edge of the tabernacle, and stopped, waiting for his wife. Wilmer Diffie started out also, and when he got in about eight to ten feet of appellant, appellant fired on him; the first ball apparently inflicting the death wound, striking him in the breast. , Diffie turned and ran, appellant firing at least three other shots; one of them striking Diffie in the arm, the other striking him in the back. The state’s contention is that Diffie was going towards the gate with his hat in his hand and made no demonstration whatever. Appellant contends that, when he saw Wilmer Diffie approaching him, he thought it was Alfred. To use his own language, he says: “I thought the way he was acting that it was Alfred Diffie, and I asked my wife if it was not, and she told me to hush, or pushed me down that way. If she told me whether it was or was not I did not understand her. My eyesight is bad and my hearing is bad; at times my hearing is worse than others, and my eyesight is the same way; I suffer a great deal with kidney trouble, and I have those spells often, and during those times my eyesight is bad. As I sat there during the services, I did not make up my mind fully as to whether it was Alfred or Wilmer Diffie that was in the choir; I did not make up my mind fully until after services was over. As I sat there I was restless and nervous and agitated as you say; I could hardly stay there. As I sat there and was uncertain about this boy, all the wrongs that had been done my daughter came into my mind, and looking over and seeing my daughter my mind could not be otherwise. As I sat there, I started to get up and made an effort ohce to get up and go before the services was over, and my wife pushed me down, that is, caught hold of me, sort of held me down, and says, ‘Be quiet.’ Well, I sit there, and when the services was over I gets up and starts on down the aisle. I walked a bench or two, and I turned my head around' to look to see my wife. My wife was talking to some ladies; there was two or three of them there talking together, Mrs. Dunagan and somebody else; I don’t know who the others were. And I looked at her a few minutes. I saw she had made a start to start to come on, and I turned to go on out, as I went on out at the end of the aisle, went out a step or two beyond the end of the aisle. I turned to look for my wife to come on; as I .did so I discovered who I taken to be Alfred Diffie, coming rushing around the corner of the benches coming up towards me. I passed about four feet north of this north tier of benches. As I waited for my wife, I turned my face south. When I saw Wilmer Diffie, he was coming from the southwest, that is, at the west end of the benches he had got around coming on out, got around when I first turned and saw him. I saw him swing around the post, that is, at the corner of the post coming right on. I seen him make a shift with his hat. He had his hat in his right hand, and he shifted it to his left hand and was looking me right straight in the face with his eyes glaring and was walking rapidly, and he advanced in four or five feet of me after he turned this corner. * * * He come rushing right on up stepping rapidly towards me and made a motion back with his right hand, and I shot him as quick as I could, thinking it' was Alfred. I fully 'believed it was Alfred Diffie I was shooting,- and at that time I believed he was armed and was going to kill me. The reason I killed that man at that time was the way he had outraged my daughter, and thinking that he was going to shoot me, that he was going to take my own life, I shot him.”

A closely contested issue in the case, both the state and defendant introducing many witnesses, was whether or not Alfred and Wilmer resembled to that degree that one could reasonably have been mistaken for the other. If appellant knew it was Wilmer Diffie approaching him, the slight demonstration he testifies to him making would hardly present the issue that he acted in self-defense; whiie, on the other hand, if he believed that it was Alfred Diffie thus approaching him, taking into consideration that his friends Rumbley, Heath, and others had informed him that Alfred Diffie was going armed and to keep a lookout or he would kill him, the acts, conduct, and demonstrations he testifies to would raise the issue of self-defense. The killing occurred on July 7th, just three days after Alfred had returned to Detroit.

Appellant, when he fired the shots, ran, going by home and getting another pistol, and then disappeared. Between 12 o’clock and daylight he appeared at the home of his friend P.' M. Rumbley, coming in to surrender to the officers; he giving as his reason for leaving that he knew Judge Diffie was in attendance on church and he did so to avoid further trouble, and kept out of the way until he could surrender to the officers. He says, when he got to Rumbley’s, Rumbley informed him that he had' killed Wilmer Diffie. He says this is the first time he learned that he had killed Wilmer and not Alfred; that he believed, up to this time, that it was Alfred Diffie he had shot.

Appellant desired to prove by Rumbley .his acts, words, and conduct upon being informed that it was Wilmer Diffie that he had killed. The court held this would be self-serving and excluded- the testimony. We think the court erred in this respect. It was a sharply contested issue in the case whether or not appellant believed it was Alfred, and that he had shot Wilmer by mistake. The state, to prove that he could not and was not mistaken in the identity of the two boys, asked him if Wilmer Diffie had not eaten at his home when he was present. This he denied. The state introduced witnesses to impeach him on this point, who testified that Wilmer Diffie had been to appellant’s house and took dinner there. He was asked if one witness did not .point out Wilmer to him and say, “Xonder comes Alfred now-,” and he reply, “No, that is Wilmer.” He was sought to be impeached in regard to this matter. When he testified that he thought it was Alfred when he shot, the state sought to impeach the statement by showing association; that they attended the same church, etc. We think, under such circumstances, as supporting his testimony on the trial, it was permissible to show what were his words, acts, and conduct at the time when first informed that it was Wilmer he had killed. Again, we understand the rule of law ■to be, when a person is first charged with any crime, his acts, words, and conduct are admissible, if incriminating, in behalf of the state; if explanatory, in his own behalf. It may be said he knew he had shot a man; that is true. But he says he thought he shot Alfred Diffie, and if he did so believe the facts and circumstances would present the issue of self-defense. If the jury did not believe he so thought, they would hardly be justified in finding that he acted in self-defense. The issue is clearly in the case as' to whether or not he believed, at the time he fired the pistol shot, that it was- Alfred Diffie, or knew it was Wilmer Diffie. When first {informed beyond question, or charged with killing Wilmer Diffie, he makes certain statements, which it is true will support his contention that he thought it was Alfred when he shot; but does that fact render the statements inadmissible? In theft cases, when a person is first found in possession of stolen property, and is so informed, and, in other crimes, when first charged with an offense, his explanation at the time has been held to be admissible, and we think, under both the above rfiles of law, the acts, conduct, and words of appellant, when first informed that it was Wilmer Dif-fie he had killed, should have been admitted. The rule is different, however, as to conversations had with Norris, Heath, Dr. Stiles, and Alsobrook. Prior to that time he had been informed by Rumbley he had killed Wilmer Diffie, and he had time to reflect after being so informed, and the court did not err in excluding the conversations had with these latter gentlemen.

Again, the court permitted the state to prove that the reputation of Alfred Diffie as a peaceable law-abiding citizen was good. In this we do not think the court erred. The defendant was relying on the fact that he had been informed by his friends that Alfred was going armed, and would kill him, as a justification for acting on the demonstrations, and under such circumstances it has always been held proper to prove the general reputation of such person.

However, the court erred in permitting the state to prove the reputation of Wilmer Diffie as a peaceable law-abiding citizen, or, as one witness puts it “the best boy in De-' troit.” Appellant had not attacked the reputation of Wilmer, had alleged no threats of any character as against Wilmer, nor stated that he in any manner feared or had any reason to fear Wilmer would harm him. He relied solely on the question of mistaken identity and that he thought it was Alfred he was shooting, and testifies if he liad known it was Wilmer he would not have shot. Under such circumstances, it was error to admit evidence of the good reputation of Wilmer.

While not complained of in a way that we would be authorized to act thereon, yet, as the case will he reversed, we would call the attention of the court to the following paragraph of his charge on manslaughter: “The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by the passion arising from some other provocation, or a, provocation given py some other person thorn, the party Icilled.” That portion which is italicized by us' is wholly inapplicable to this case. The provocation relied on to reduce the offense was given by another party than the party killed — Alfred Diffie. It was not contended that at the time of the killing, nor prior to that time, Wilmer Diffie had done anything that would cause anger, rage, or resentment, and this paragraph of the charge should be so altered as to present the issue applicable to the evidence adduced on the trial. If appellant really believed it was Alfred Diffie when he shot, then he was entitled to all the defenses he would have been entitled to if it had in fact heen Alfred Diffie.

In the charge on self-defense, if appellant believed it was Alfred Diffie, or the jury had a reasonable doubt of that fact, it should be made plain that he had the same right to act as if in fact it had heen Alfred Diffie. The omission to so inform the jury is plainly manifest in the following paragraph of the charge: “Homicide is justifiable and is no offense against the law, when committed in necessary self-defense. This occurs when one is attacked in such manner as to produce in his mind a reasonable apprehension of death or serious bodily injury, or where it reasonably appears to one from the act or acts, coupled with the words of the person hilled,, that he (the slayer) is thereby in danger of death or serious bodily injury, and he kills to protect himself from such danger, or apparent danger, then such killing is deemed to be justifiable self-defense.”

It is thus seen that the court limited it to the acts and conduct of Wilmer Diffie (the person slain), while the contention of appellant was that he was informed that Alfred Diffie was going armed, was going to kill him, and he believed it was Alfred Diffie who was approaching him, and this charge should have been so framed as to present his theory, and if the jury found that defendant believed it was Alfred Dime or they had a reasonable doubt of that fact, then he would have the same right to act as if it in fact was Alfred Diffie approaching him.

The other matters complained of present no error.

The judgment is reversed, and the cause is remanded.  