
    BROD v. STATE.
    (No. 3772.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    1. CRiminal Daw <&wkey;368 —Evidence —Admissibility — Other Acts.
    Evidence that defendant’s father, shortly after the shooting by accused, violently cursed and abused another person who had been engaged in the fight was improperly admitted as part of the res gestee; it being immaterial upon defendant’s conduct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. &wkey;j368.]
    2. Criminal Law <&wkey;1171 — Trial—Remarks of Attorneys — Prejudicial Error.
    While after a change of venue taken by the state in a criminal trial it is proper for the defendant’s attorney to comment on the fact that a change was taken, the statement of the state’s attorney that “the reason why the same was changed was that Waller county had a history, and that was they would turn murderers loose over there,” is improper, and the judge’s refusal to direct the jury to disregard it was error prejudicial to defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. <&wkey; 1171.]
    3. Homicide <&wkey;122 — Defenses—Defense of Another.
    Where defendant, accused of murder, shot the deceased who was attacking defendant’s father, he was guilty of no offense, if it reasonably appeared to him when he shot that the life of his father was in danger, or that he was in danger of suffering serious bodily injury, and the criterion is not what the circumstances actually were, but what they would have appeared to be to a reasonably prudent man.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 177-181; Dec. Dig. <^^122.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Jake Brod was convicted of murder, and he appeals.
    Reversed and remanded.
    A. G. Lipscomb, of Hempstead, J. E. Ed-mundson, of Bellville, Mathis, Teague & Em-brey, of Brenham, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 15 years’ confinement'in the state penitentiary.

It appears there had been a game of baseball in the afternoon; that the shooting took place at night. The state’s contention is that appellant had become dissatisfied with the management of the baseball team, and had sought to break it up. Deceased, Gus Ueckert, was also a member of the team, and ill will existed between Ueckert and appellant, growing out of this matter. After the game of ball, a dance was had that night on a platform adjacent to a beer garden, and appellant and deceased were both at this dance, and the state’s evidence is that, while deceased, Ed Ueckert, and Roman Michalski were drinking soda water, appellant approached them and said, “You want to fight, you G-d d-d bastard?” when deceased replied, “Jake, I don’t want to have anything to do with you,” when, with a knife in his hand, he approached deceased and said, “You G — —d d-d s-n of a b-h.” Ed Ueckert here interfered and carried appellant to his father, Anton Brod (who was constable of the precinct), and asked him to make appellant behave. Appellant’s father said something to his son about behaving, but almost immediately went to where deceased was standing, caught him in the collar and said, “I am tired of you calling my hoy s-ns of b-hes; I didn’t raise no s-n of a b-h, G-d d-n you.” Deceased replied, “Mr. Brod, don’t hit me.” Anton Brod responded, “I will, G-d d-n you,” pulling his pistol. As he pulled his pistol, Ed Ueckert grabbed his arm, and Anton Brod and Ed Ueckert went down, Ed Ueckert falling on his face, but having the hand with the pistol under him, Anton Brod being at his side and over him. Michalski and Gus Ueckert caught hold of Anton Brod, as they say, to pull him off and prevent him shooting. Appellant Jake Brod rushed up and cut Gus Ueckert in the shoulder with a knife, retreating after he had done so. Gus Ueckert grabbed a soda water bottle and threw it at Jake Brod, when Jake Brod drew a pistol and shot him, inflicting a fatal w’ound.

The defendant’s contention is that deceased had been writing letters to a young lady in the community and receiving letters from her, the letters to deceased being sent to appellant for delivery. Deceased’s wife hearing of those letters, deceased accused appellant of informing his wife, and he gives this as a reason for their ill will. The defendant’s contention is that no words passed between him and deceased on the night of the shooting, and that between 11 and 12 o’clock, his father, Anton Brod, came to where he was standing and said, “Come on, Jake, let’s go home,” when Gus Ueckert, deceased, remarked, “You’d better take the s-n of a b-h home, else I will kill him.” Then Anton Brod turned and said to deceased, “You can kill hell,” when deceased picked up a beer glass and drew it back as if to strike, when Anton Brod caught deceased’s hand with one of his hands and pulled his pistol with the other. As he pulled his pistol, Ed Ueckert grabbed the hand with the pistol in it, and Anton Brod and Ed Ueckert went down, Ed Ueckert having the hand with the pistol under him; ■ that Gus Ueckert then jumped on Anton Brod and struck him, when appellant rushed up and cut Gus Ueck-ei't. Gus Ueckert grabbed a bottle and •threw it at appellant, when, as appellant contends, Gus Ueckert drew a knife, got on his father, Anton Brod, and began cutting at his father, when he, appellant, shot. As he shot, all parties parted, and Gus Ueckert, deceased, went to his father-in-law’s house, some hundred yards distant. Thus, it is seen the evidence is in sharp conflict, both as to the origin of the fatal difficulty and the events immediately preceding the shooting. There are a number of bills of exception in the record, but we do not deem it necessary to discuss but three of them, as the others present no error.

The first bill we will mention is the one wherein it is shown that shortly after the shooting of Gus Ueckert by Jake Brod and after the parties fighting had all been separated, the state was permitted to show that Anton Brod, father of appellant, cursed and very violently abused Roman Michalski. This evidence seems to have been admitted on the ground that it occurred so soon after the difficulty in which appellant shot Gus Ueckert that if was res gestae of that transaction. If it was appellant doing the cursing and committing the acts towards Michalski, we would agree with the trial court, but Anton Brod was not on trial, and certainly appellant cannot be held responsible for the acts of his father towards a third person after the difficulty in which he did the shooting was over. The acts and conduct of appellant might throw light on his previous acts, but the acts and conduct of his father could not do so. We are of the opinion that the court should have sustained the objection to the acts and conduct of appellant’s father toward Roman Michalski after the shooting was over.

In another bill, it is shown that Mr. Mathis, attorney for defendant, had commented on the fact that the record disclosed that the state had had the venue of this case changed from- Waller to Austin county, and remarked that this was not fair to defendant; that he should have been tried in Waller county, where both appellant and deceased had been raised. As the record had been introduced showing the change of venue to have. been made, appellant’s counsel could comment on that evidence, and state’s counsel could also reply to such argument and comment on any fact in evidence, but state’s counsel should not have been permitted to go outside of the record, and say “that the reason why the same was changed was that Waller county had a history, and that was they would turn murderers loose over there.” There was ho evidence in the record upon which to base such statement. Again, state’s counsel said, in commenting on the testimony of Anton Brod, “That old man Brod went over to Richmond to help get a murderer out.” Anton Brod testified to material facts for appellant, and, if his testimony was true, it would tend to show that appellant killed deceased to save his, Anton Brod’s, life. Upon objection being made, the court instructed the jury not to consider the last remark, but refused to instruct the jury hot to consider the remark about the history of Waller county, stating they turned murderers loose over there. Oounsel for the state may always comment on the testimony and draw legitimate deductions therefrom, but in their zeal they should not get outside the record and inject new and prejudicial matter into the case.

The ¡only other bill we deem it necessary to discuss is the one complaining of the charge of the court in instructing the jury:

“The resistance which the person about to be injured may make to prevent the commission of the offense must be proportioned to the injury about to be inflicted. It must be only such as is necessary to repel the aggressor. If the person about to be injured uses a greater amount of force to resist such injury than is necessary to repel the aggressor and protect his own person, he is himself guilty of an illegal act, according to the nature and degree of force which he has used, but in all cases the matter is to be viewed from the defendant’s standpoint. Any person, other than the party about to be injured, may also, by the use of necessary means, prevent the commission of the offense, and the same rules which regulate the conduct of the person ta be injured in repelling the aggression are also applicable to the conduct of him who interferes in behalf of such person. He may use a degree of force proportionate to the injury about to be inflicted, and no greater.”

It is contended that this is too much limitation to place upon appellant’s right of self-defense. It is the law of this state that one who seeks to justify his act on the ground that he c'ommitted the act in.defense of another (in this instance in defense of his father) can use no greater force than seems to him necessary to accomplish that purpose. If Anton Brod was in no danger of losing his life or suffering serious bodily injury, appellant would have nb right to kill in his defense. He would only have the right to use such force as was necessary to repel the aggressive act, or acts. According to the state’s evidence, Anton Brod was in no danger of death or suffering serious bodily injury. Ed Ueekert grabbed the hand in which Anton Brod had the pistol to keep him from shooting his brother; and the acts and conduct of Gus Ueekert and the others were done to keep Anton Brod from injuring Ed Ueekert after he had gotten him down, thus authorizing a finding by the jury that Antbn Brod was in no danger at the time the fatal shot was fired, and from the verdict they evidently so found. While this is the law, yet it is also the law that a jury must view the circumstances as it appeared to appellant at the time. Not that they must accept his version, but they must take all the evidence and pass on the question of how it then, at the time of the difficulty, would appear to a reasonable person situate as was appellant. If from all the facts and circumstances it reasonably appeared to appellant that deceased was on his father, cutting at him with a knife, thereby endangering the life of his father, he would be justified in slaying to save the life of his father. The charge as given herein, we think, is too restrictive, and should be so drawn on another trial as to present clearly that, if it reasonably appeared to defendant at the time he shot that the life of his father was in danger, or he was in danger of suffering serious bodily injury, he would be guilty of uo offense. And this question should not be passed on as it appeared to the jury from the evidence, but as the jury believed it appeared to defendant at the time he acted.

The case is reversed, and the cause remanded. 
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