
    CONDRON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.
    Rehearing Denied April 2, 1913.)
    1. Homicide (§ 340) — 'Imal—Instructions —Haemless Error.
    Where a defendant was found guilty of only manslaughter, he cannot complain of a charge on murder.
    [Ed Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    2. Homicide (§ 340) — Habmless Eeboe — In-SXBUCTIONS. . ■
    . ' A definition of manslaughter, though inaccurate, is not harmful, unless it conflicts with a charge on self-defense, where the defendant was given the lowest penalty for manslaughter.
    [Ed. Note— Eor other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    3. Criminal Law (§§ 763, 764) — Instructions — Weight of Evidence.
    An instruction in a homicide case held not upon the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    4. Homicide (§ 269) — Question fob Jury-Conduct of Accused — Cabeying Pistol.
    In a homicide case, evidence held sufficient to authorize the submission to the jury of the question whether defendant was carrying a pistol prior to the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 563; Dec. Dig. § 269.]
    5. Criminal Law (§ 1172) — Instructions— Harmless Error.
    Even though an instruction in a prosecution for the killing of an officer was erroneous as assuming that the defendant was carrying a pistol at a certain time, it was harmless where the officer had a warrant for his arrest charging him with carrying a pistol at that time.
    [Ed. Note. — For other cases, see Criminal. Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    6. Abbest (§ 63) — Carrying Weapons — Warrant.
    It is the duty of an officer to make an arrest, even -without a warrant, where he is told by a credible person that one is carrying a pistol, under Pen. Code 1911, art. 479.
    [Ed. Note. — For other cases, see Arrest, Cent. Dig. §§ 145-156; Dec. Dig. § 63.]
    7. Criminal Law (§ 823) — Instructions— Harmless Error — Reasonable Doubt.
    Although a paragraph in a charge, standing alone, was calculated to make the jury believe that the court thought there was no reasonable doubt of guilt, wher'e it was followed immediately by two other paragraphs which undoubtedly gave the defendant the benefit of any doubt, there was no error. '
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    8. Criminal Law (§ 822) — Instructions— Reasonable Doubt.
    The doctrine of reasonable doubt need not be appended to each paragraph of the charge in a homicide case if the charge as a whole properly instructs the jury on that issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    9. Homicide (§. Ill)— Self-Defense — Killing an Officer.
    Where an officer in making an arrest does it in a wanton manner, and uses greater force than necessary, the party may meet such unnecessary force with force, but cannot take the officer's life, unless it is necessary or apparently necessary in defense of himself.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 143, 144; Dec. Dig. § 111.]
    10. Homicide (§ 55) — Manslaughter—UNNECESSARY Force in Abbest by Oeficee.
    Where an officer wantonly uses unnecessary force in making an arrest, and in such a manner as to produce such a degree of anger, rage, sudden resentment, or terror as to render the mind incapable of cool reflection, the taking of the officer’s life would be manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 79; Dec. Dig. § 55.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    A. O. Condron was convicted of manslaughter, and he appeals.
    Affirmed.
    See, also, 62- Tex. Or. App. 485, 138 S. W. 594.
    Cunningham & Oliver, of Abilene, B. F. Reynolds, of Throckmorton, Chapman & Coombes, of Anson, and Goodson & Goodson, of Comanche, for appellant. Jas. P. Stinson, Dist. Atty., of Anson, T. J. Wright, of Throck-morton, Jas. P. Kinard, of Haskell, Higgins, Hamilton & Taylor, of Snyder, and 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 indicted, charged with murder, and when tried was convicted of manslaughter, and his punishment assessed at two years’ copfinement in the penitentiary.

The record discloses that appellant and deceased were rival candidates for sheriff of Throckmorton county; deceased being elected. The state of feeling between the two men was not friendly subsequent to the election. The state’s evidence would disclose that appellant on several occasions made threats as to what he would do under given conditions. It also appears that appellant also bore ill will towards Mr. Nichols, a deputy sheriff. It also appears that appellant and W. J. Overcash were friends, a,nd were together when clashes arose between them and the sheriff or his department, and that Overcash also felt un- ' kindly towards the deceased sheriff. On the evening of the fatal difficulty appellant was at the feed store of W. J. Overcash, and he and Charlie Jones engaged in a war of words. Jones says that appellant asked Overcash, “Where is my pistol?” and when Overcash told him where it was appellant got it-and fired, the ball striking near him. R. H. Barnes, who worked at the feed store, says the pistol was not kept at the store; that they kept a shotgun there, but no pistol; that he is. of the opinion the pistol belonged to Overeash. Appellant testified he asked Overeash, “Where is your pistol?” and when Overeash replied he got the pistol, and while handling it let it go off accidentally. The testimony would show that Overeash and Barnes at this time took the pistol from appellant, unloaded it, and locked it in a desk drawer. Jones left the feed store and went before the justice of the peace, and swore out a complaint against appellant, charging him with unlawfully carrying a pistol. The justice of the peace issued a warrant for the arrest of appellant and delivered1 it to the deceased sheriff, Jones, telling the sheriff appellant was at Overcash’s feed store. He called his deputy, Mr. Nichols, and they started to the store, ostensibly to arrest appellant on the warrant While Jones was gone, and after he had gone to the office of the justice of the peace, it is shown that Overeash unlocked the drawer and again loaded the pistol, placing it in the drawer, but leaving the drawer unlocked; he and appellant both being present. They then took seats on the front porch of the feed store, where the courthouse would be in plain view. While they were sitting there, L. E. Devall came to the feed store, and in a conversation remarked, “It looks like the officers are getting "busy up town,” when appellant replied, “You must be next.” When Devall replied he knew nothing of the matter appellant spoke to Overeash, and said, “Uncle Bill, he must be next;” and then appellant remarked, “Well, one thing sure, I am not going to talk to them this evening; we ran for the same office once, and he [Spurlock] may be a better man than I am in one way, but, by God, he ain’t in any other. I won’t be talked to this evening; they can talk to me Monday, but, as for that G-d d-n- long-legged Nichols, he can't talk to me at all.” Witness Devall further testified that about that time appellant remarked, “There comes the G-d d-ned s-n of b-hes now,” and he (witness) looked and saw the deceased, Sheriff Spur-lock, and his deputy, Mr. Nichols, coming towards the feed store. As appellant made this remark he and Overeash got up, left the gallery, and went in the feed store. Deputy Sheriff Nichols says as they approached the feed store they saw appellant and Overeash get up and walk in the store, and he saw appellant go to this desk, where the pistol was in a drawer, get the pistol, Overeash got a shotgun, when they both returned to the front, one getting on the right-hand side and the other the left-hand side of the door, when Overeash waved his hand, and instructed them to come no closer; that the deceased sheriff then told Condron he had a warrant for his arrest, and the shooting began, Overeash raising a shotgun and firing the first shot, and which shot was the one that inflicted the fatal wbund. The state’s witnesses would show that a general fusillade ensued in which Overeash, appellant, Spurlock, and Nichols all engaged.

Appellant in his testimony admits that he and Overeash were sitting on the gallery when Devall came to the feed store, and that, when Devall told him about the officers getting busy, he remarked that he (Devall) must be next, and that, when he saw two men coming towards the feed store, he made some remark, either “there comes the d-n rascals now,” or the remark Devall says he made; that he thought it was Nichols and Jones who were approaching the store; that he and Overeash did get up and go in the store, and were in the relative positions that the state’s witnesses place them. He denies that Spurlock told him he had a warrant for his arrest, but' says when the officers approached the store Spurlock reached for his pistol, and Overeash for his shotgun, when the firing began, he stating that Spurlock fired first. He says he had no weapon at that time, but he was wounded in the leg, and fell back, and in doing so fell against the desk in which the pistol had been placed, and he then got the pistol, but did not shoot. After the difficulty the pistol was found near where appellant was sitting, and he asked the man who found it to put it away, and say nothing about finding it. Virtually all the testimony, outside of that of appellant’s, would go to show that both a shotgun and pistol were fired out of the house in which Overeash and appellant were situate, but there is a sharp conflict in the testimony as to who fired the first shot, Overeash or the deceased. This, we think, is a sufficient summary of the evidence to discuss the questions raised. There are no bills of exception to the reception or rejection of testimony; the whole attack being on the charge of the court as given.

The criticisms of the charge on murder need not be considered, as appellant was found guilty of only manslaughter, and the definition of manslaughter, if slightly inaccurate, would not be harmful to appellant, unless it conflicts with or infringes on the charge on self-defense, as appellant was given the lowest penalty for manslaughter.

The criticisms of the argument of state’s counsel, in the light of the qualifications of the bills by the court, and the instructions given in regard thereto, present no error. The first criticism of the charge relates to the following paragraph of the charge: “If on the day of the killing of the deceased the defendant was in the grainhouse and feed store of W. J. Overeash that was run in connection with a wagon yard, and was there carrying a pistol on and about his person, then I charge you that he was violating the laws of Texas, for which he was subject to arrest by the sheriff or any deputy sheriff of Throckmorton county, Tex., upon a warrant; and if the deceased, J. G. Spurlock, being the sheriff, and L. W. Nichols, being the deputy sheriff of said county, were informed by any credible person of such violation of the law, if any, by defendant, it became their duty to arrest defendant for such violation of the law with a warrant, and, if the officers were informed that the defendant had unlawfully carried a pistol, they were authorized by law to procure a warrant for the arrest of the defendant for such offense, and if they did procure a warrant from the justice of the peace of precinct No. 1 of Throckmorton county, Tex., it was their duty under the law to execute the warrant by making the arrest of the defendant, and they were permitted by law to arm themselves for the purpose of overcoming such resistance, if any, as may be offered them by the defendant, or any other person on his behalf, and were further authorized by law to use all reasonable means to effect the arrest. The officers were not authorized by law, however, to use any greater force than was necessary to secure the arrest and detention of the defendant; and what force was necessary to secure the arrest and detention of the defendant is a question of fact, to be determined by the jury from all of the facts and circumstances in evidence in this case.”

The criticism of this charge, that it is upon the weight of the evidence, is not justified. This was but a statement of a proposition of law if the jury found a given state of facts. It is also criticised on the ground that there was no evidence in the record that appellant was carrying a pistol on or about his person in the feed store, and presented an issue not made by the testimony. The evidence of Charlie Jones is that, when he and appellant were having their trouble, appellant asked Overcash, “Where is my pistol?” and then went and got it and fired it. We think this sufficient to authorize the court to charge as he did, but, if in error in this, the undisputed facts show that Charlie Jones had filed a complaint against appellant charging him with carrying a pistol at that time, that a warrant was issued and delivered to the deceased sheriff for execution, and he had it in his possession when killed. The evidence would also tend strongly to show that appellant was aware that the officers were coming to arrest him on account of his trouble with Jones. It shows conclusively that appellant was sitting on the front porch of the feed store where he could have seen Jones and .the justice of the peace go to the courthouse in a few minutes after his trouble with Jones, and when De-vall told him about the officers getting busy up town he remarked, “You must be next,” and the conversation that ensued, and the acts of defendant at the time, leads one inevitably to the conclusion that, when he saw an officer coming towards the feed store, he was aware that it was because of his trouble with Jones and firing the pistol, because he says he thought it was Jones and the deputy sheriff. So under no phase of the case could this paragraph of the charge be said to be. injurious or hurtful to appellant. The further criticism that it “was a distinct assumption that he was in fact carrying a pistol,” in that it charged the jury that under the circumstances stated it became the duty of the officer to arrest appellant.

By reading the charge copied it will be seen that it instructs the jury, “if they find that the officers were informed by a credible person of such violation of the law, it became their duty to arrest the defendant,” and this in accordance with the law of this' state, for article 479 of the Penal Code makes it the duty of an officer to arrest one when he is informed by a credible person that such person is carrying a pistol. See, also, Jacobs v. State, 28 Tex. App. 79, 12 S. W. 408; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812; Miller v. State, 32 Tex. Cr. R. 319, 20 S. W. 1103. In this case it is proven beyond dispute that the officers had been informed by Charlie Jones that appellant was carrying a pistol, and under the law it became their duty to arrest him, and the court in so instructing the jury committed no error. But in this case the evidence goes further, and shows that a warrant had been issued and delivered to the sheriff, consequently under no circumstances could this paragraph of the court’s present any material error.

The court in his charge also instructed the jury:

“The burden rests on the state to establish the guilt of the defendant beyond a reasonable doubt, and if, after considering all of the evidence before you, you have a reasonable doubt of his guilt, you will acquit him; but, if the evidence satisfies your mind beyond a reasonable doubt of the guilt of the defendant as charged in the indictment, then you will convict him and ascertain from the evidence under the charge of the court the grade or degree of the offense of which he is guilty, and assess his punishment therefor accordingly.

“You are further instructed that the reasonable doubt, also, applies between the different offenses comprised in the charge; so if you find the defendant guilty, and have a reasonable doubt under the evidence as to what offense he has been guilty of, you will resolve such doubt in favor of the defendant, and find him guilty of the lesser and lower offense as between such offenses ás you may be in doubt.

“The defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and, if you have a reasonable doubt as to his guilt, you will acquit the defendant.”

Appellant in his motion for new trial copies the paragraph first above quoted, and says that “it was calculated to make the jury believe that the court thought there was no reasonable doubt of appellant’s guilt,” and cites us to the case or Comegys v. State, 62 Tex. Cr. R. 235, 137 S. W. 349. In the Comegys’ Case the first paragraph herein given was the only paragraph given on the doctrine of reasonable doubt, but in this case it is seen that this paragraph in this case is followed by two other paragraphs, the latter of which gives the defendant the benefit of. the reasonable doubt in the language of our Code. Take these three paragraphs, and, when construed together, we think them a proper presentation of the. law, and instead of depriving defendant of any right, or impressing the jury with the thought that the court believed defendant guilty, correctly instructs them that defendant is not only entitled to the benefit of doubt as to his guilt, but is also entitled to the benefit of doubt as between degrees of the offense submitted.

The following paragraph of the court’s charge is -criticised in several paragraphs of the motion for new trial: ' “If you believe from the evidence that the deceased, J. G. Spurlock, and L. W. Nichols, went to the Overcash wagon yard and feed store to arrest the defendant, A. O. Condron, upon the charge of unlawfully carrying a pistol, and that they were armed with pistols, and appeared thus armed before and near the door of said grain store, ■ and that the appearance of the officers thus armed, or their attempt to use such weapons, if they did so attempt to use them, or anything then done by said officers or either of them at the time, either alone, or when taken into consideration with all the 'other facts and circumstances in evidence in this case, was such as would commonly produce such a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper, under like circumstances with the defendant, as to render the mind incapable of cool reflection, or if you believe from the evidence that the said officers, in attempting to arrest the defendant, were using greater force than was necessary under the circumstances to secure the arrest and detention of the. defendant, or that they had time and opportunity to inform him by what authority they were about to arrest him, and having such time and opportunity failed to inform him, and that their manner of attempting such arrest was such as would commonly produce such a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper, under -like circumstances with the defendant, as to render the mind incapable of cool-reflection, and while under the influence of such sudden passion he participated as a principal offender, if he was such offender, in killing J. G. Spurlock at the time and place charged in the indictment,. then you will find the -defendant guilty of manslaughter, and assess his punishment accordingly at confinement in the penitentiary for not less than two nor more than five years, unless you should find and believe from the evidence that the killing was done in his lawful self-defense under the law as hereinafter given you in this charge, or in the lawful defense of W. J. Overcash.”

This was the paragraph under which appellant was found guilty. In other parts of the charge the court had given a proper definition of manslaughter, but the motion alleges that this paragraph “denies to the defendant the presumption of innocence and benefit of reasonable doubt,” in that it requires the jury to believe certain facts. This is proper where the court is instructing the jury under what conditions one may be convicted. Our law requires the jury to find facts affirmatively before they are authorized to convict a person of any offense or degree of an offense, and the doctrine of reasonable doubt need not- be appended to each paragraph of the charge if the charge as a whole properly instructs the jury on that issue. We have copied a part of the charge hereinbefore to conclusively demonstrate that the jury were not only told that defendant was entitled to the benefit of a reasonable doubt as to his guilt, but also to the benefit of doubt as to the degree of offense. In Edens’ Case, 41 Tex. Cr. R. 525, 55 S. W. 816, this court said: “We think the court’s charge wherein he tells the jury ‘defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and in case of reasonable doubt in your minds as to defendant’s guilt you will acquit him and say by your verdict not guilty,’ is sufficient application of the law of reasonable doubt to the different phases of the evidence; and it was not incumbent upon the court to attach to each clause of his charge the law of reasonable doubt.” Por a citation of the cases so holding, see Overcash v. State, 148 S. W. 705. On the other hand, in another part of the motion, appellant takes the opposite view of this paragraph, and complains that it is error because it authorized the jury to convict “if they believed,” etc., and did not tell them they must so believe “beyond a reasonable doubt” — -in one instance claiming that it took away from.the defendant the benefit of “a reasonable doubt,” and then claiming that it' authorized the jury to convict on a preponderance of the evidence. The charge, when read as a whole, does neither of these things, and the propositions present no error. However, the court instructed the jury in another part of his charge: “But if the deceased and L. W. Nichols attempted to arrest the defendant with a warrant'in wanton manner, and in doing so used greater force than was necessary in the attempted arrest of the defendant, the use of such greater force than was necessary, if any, was illegal, and the defendant liad the lawful right to resist it, and if necessary or apparently necessary in his self-defense to kill the party or parties engaged in such unlawful attempt to use such unnecessary force, if any was used by them.” 'And appellant insists that these two charges are in conflict, in one instance instructing the jury that if the .officers were using greater force than was necessary under the circumstances to effect an arrest, and their manner of attempting such arrest was such as would commonly produce such a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper as to render the mind incapable of cool reflection (unless you should find and believe from the evidence that the killing was done in his lawful self-defense under the law as hereinafter given you in charge, or in lawful defense of W. J. Overcash), he would be guilty of manslaughter, and in the other instructing them ‘‘if the arrest was made in a wanton manner, and in doing so used greater force than was necessary, the defendant would be justifiable” — the argument being that, if the killing took place while the officers were using greater force than was necessary to effect an arrest, this in and of itself alone would justify the homicide. This' is not the law. No one is justified in killing another unless it reasonably appears to him from the conduct and acts of the parties that his life is in danger, or he is in danger of serious bodily injury. The court in the latter paragraph tells the jury if the attempt to arrest was in a wanton manner and more force was used than was necessary, and if it was necessary or apparently necessary to kill in defense of himself, he would be guilty of no offense. We think, instead of being in conflict with each other, the charge clearly draws the correct and proper distinction in this character of case. No one, we think, can seriously contend that, because an officer in attempting to make an arrest uses more force than is necessary, it would justify another in slaying the deceased. He, it is true, if the arrest is unlawful, is authorized to use force to combat force, but his right to kill does not arise until, from the appearances, he thinks his life is in danger, or he is in danger of some serious bodily injury. The right to slay another does not arise solely from the use of “more force than necessary”; it takes more than that, and in connection therewith, from some act or conduct on the part of the officer, it must reasonably appear to a defendant that such officer intends to kill or inflict serious bodily injury. There is no conflict in the two paragraphs of the charge, but it correctly draws a line of distinction when the acts of the officer would reduce the offense to manslaughter, and when his acts would justify the killing. This clause occurs where the court is giving definitions of law as to the different issues in the case, and when the court applies the law of self-defense he does so properly as shown by the paragraphs herein copied. The court in this charge on manslaughter criticised tells the jury that he would be guilty of manslaughter, “unless from the evidence it appeared that the killing was done in lawful self-defense as hereinafter given you in charge,” and then instructs them fully as to the circumstances under which appellant would be justified, and guilty of no offense, instructing the jury:

“If you believe from the evidence that W. J. Overcash did kill the deceased at the time and place charged in the indictment, and that this defendant, A. 0. Condron, participated in such killing, but should further believe from the evidence that at the time W. J. Overcash fired with a shotgun, the first shot fired by him, if you believe that he fired any shot, that the sheriff or his deputy were attempting to use on him or this defendant a deadly weapon, or by some act done by said Spurlock or Nichols at the time reasonably indicated to the defendant and created in the mind of the defendant a reasonable expectation or fear that they were, or either of them was, about to make an attack upon the defendant, or upon W. J. Over-cash, with a weapon calculated to produce death or serious bodily injury, then it would be presumed from such act that they intended to make use of such weapon to kill the defendant or said Overcash, or to inflict serious bodily injury upon him or them, and you will in such case, if you so believe, acquit the defendant as having acted in self-defense or in defense of another.

“If the acts of Spurlock or Nichols were such as to justify the defendant or W. J. Overcash in killing Spprlock under the law of self-defense, as given you in charge, then the defendant nor Overcash were not, under the law, required to retreat in order to avoid the necessity of killing the deceased.

“You are instructed that, if the proof shows in this case that W. J. Overcash killed the deceased Spurlock, then before you would be authorized to convict the defendant of any grade of culpable homicide you must find from the evidence beyond a reasonable doubt that the said W. J. Overcash unlawfully killed the deceased, Spurlock, and that the defendant was present and knew of the unlawful intent on the part of W. J. Over-cash, and so knowing aided him by acts, or encouraged him by words or gestures to kill the said Spurlock; and in that connection you are charged that the mere presence of the defendant in company with said Over-cash will not be sufficient to establish the defendant’s guilt, but the proof must go further, and establish beyond a reasonable doubt that said W. J. Overcash unlawfully killed the deceased, and that the defendant, knowing the unlawful intent of the said Overcash to' kill said Spurlock, aided and abetted him in said killing; and, if you have a reasonable doubt as to the existence of either one of the above propositions, you will acquit the defendant.

“If you believe from the evidence that the deceased, Spurlock, and L. W. Nichols, when they appeared in sight of the defendant before the door of W. J. Overcash’s grain store, by some act done by them, or either of them, indicated a present purpose and an immediate intention to use upon the defendant or W. J. Overcash a weapon which might cause the death of or produce serious bodily injury to either W. J. Overcash or defendant, or if such acts of said Spurlock or Nichols reasonably so appeared to the defendant at the time, viewed from his standpoint, and said acts of deceased or Nichols at the time were reasonably calculated to create in the mind of the defendant, and did create in his mind a reasonable expectation or fear of death or serious bodily injury to either W. J. Overcash or defendant, and if you find that then and there the defendant moved by such reasonable expectation or fear (if he was so moved) of death or serious bodily injury participated in the killing of said Spur-lock if he did so in any manner, and you believe that said Overcash killed said.Spur-lock then the killing was under the law justified as done in his lawful self-defense, or in defense of another, and you will acquit defendant if you so believe even though the danger was not actual, but apparently so; provided the danger reasonably appeared to the defendant, under all of the facts and circumstances at the time, to be real and actual, viewed from, the defendant’s standpoint.

“If you 'believe from the evidence under the foregoing charges of the court upon the law of self-defense that the defendant or Overcash was justified in firing the shot that killed the deceased, Spurlock, if any, then you are instructed that the subsequent shots fired by the defendant or Overcash, if any, are immaterial, and that the defendant had the right to continue to fire so long as danger, real or .apparent, considered from the defendant’s standpoint, continued to exist.

“The defendant, A. O. Condron, cannot be convicted of any offense unless you believe from the evidence beyond a reasonable doubt that W. J. Overcash unlawfully killed J. G. Spurlock ,in a shooting between W. J. Over-cash on the one side and Spurlock and Nichols on the other, and if you believe from the evidence • that the defendant, Condron, did not engage in the shooting between Spurlock and Nichols on the one side and Overcash on the other, nor participate in the acts of W. J. Overcash as a principal offender, if he was such offender, 'until after he was fired upon or shot by J. G. Spurlock or Nichols, and that he had or procuréd a weapon, and then, fired or attempted to fire at either or both Spurlock or Nichols, he would not be guilty, and, if you so believe or have a reasonable doubt thereof, you will acquit the defendant.”

These paragraphs present every phase of self-defense as made by the evidence, and in a manner we do not think, when thé charge is read as a whole, is subject to, any criticism. This is a companion case to that of Overeash v: State, 14S S. W. 701, and all the other questions raised by appellant in his motion for new trial are discussed in that case, and the authorities there cited, and which is here referred to.

Being of the opinion that no reversible error is pointed out in the motion for a new trial, and that the charge fully. presents every theory, of the case as favorable to defendant as the law authorizes, the judgment is affirmed.

DAVIDSON, P. J.

(dissenting). This is the second appeal of this case, the former appeal being reported in 62 Tex. Cr. R. 485, 138 S. W. 594. It is also a companion case to Overcash v. State, 148 S. W. 701.

I deem it unnecessary to make' a statement of the facts except as may be incidentally connected with the legal questions discussed. The court gave the following charge: “If on the day of the killing of the deceased the defendant was in the grainhouse and feed store of W. J. Overcash that was run in connection with a wagon yard, and was there carrying a pistol on and about his person, then I charge you that he was violating the laws of Texas, for which he was subject to arrest by the sheriff or any deputy sheriff of Throckmorton county, Tex., upon a warrant; and if the deceased, J. G. Spurlock, being the sheriff, and L. W. Nichols, being the deputy sheriff of said county, were informed by any credible person of such violation of the law, if any, by defendant, it became their duty to arrest defendant for such violation of the law with a warrant, and if the officers were informed,” etc. The charge also further instructed the jury that these officers were not authorized by law, however, to use any greater -force than was necessary to secure the arrest and detention of the defendant, and what force was necessary to secure the arrest and detention of the defendant was a question of fact, to be determined by the jury from all of .the facts and circumstances in evidence in the case. Several objections were urged to the charge, among others, that it was an assumption of a fact; that is, that portion of the charge which informed the jury that, if appellant was carrying a pistol on or about his person at the feed store, be would be violating the law, which authorized the deceased sheriff and his deputy to make the arrest, etc. The evidence discloses, as far as I have been able to ascertain from the record, that there had been a difficulty between appellant and Charlie Jones a short time before the shooting which resulted in the homicide of Spurlock; that Jones informed the sheriff's office of that fact, and made an affidavit against appellant for carrying a pistol. The facts in connection with the difficulty between Jones and appellant as detailed by the witnesses Pigg, Barnes, and appellant are about as follows: Jones had gone into the grainhouse of Overcash where appellant was; a quarrel and difficulty ensued, during which appellant reached up and secured out of the coat pocket of Over-cash, which was hanging near by, a pistol. This seems to be uncontradicted. Jones’ evidence would convey the idea that appellant shot between his feet-or into the floor about his feet for the purpose of frightening him. About the time that appellant obtained the pistol from the pocket of Overcash’s coat, Overeash came upon the scene and undertook to take the pistol from appellant; and while they were scuffling over it it was accidentally discharged, the ball entering the floor neár where Jones was standing. All the witnesses agree that Overcash took the pistol from appellant, broke it, and dropped the shells from it, and immediately locked it in his, Overeash’s, desk. Jones went away and made the affidavit against appellant for carrying a pistol. The facts stated do not constitute carrying a pistol on and about the person of appellant. When the difficulty between himself and Jones occurred, he reached up in the pocket of OVercash’s coat and got the pistol, which Overcash undertook to take away from him, when it was accidentally discharged. .This does not constitute carrying a pistol, and the court was in error in so instructing the jury and authorizing them to so., find or believe. The court by this charge assumed and charged upon a phase of the case not justified by the facts, and, of course, detrimentally to appellant before the jury. It assumed or authorized the jury to assume a fact which was not a fact, and not supported by the evidence.

There is another phase of this matter that ought to be noticed. The court, having given the charge above quoted and criticised, failed to give the converse of the proposition ; that is, if appellant did not carry the pistol, then the jury was not authorized so to find. If he did'not carry the pistol, he was not violating the pistol law, as the court instructed the jury tie was doing by carrying it. The charge does not relieve the case of the assumption of the fact that appellant was carrjdng a pistol. The charge was on the weight of the evidence by putting it to the jury as it did, authorizing them to believe he was carrying the pistol, in the first instance, and in not giving the converse of the proposition after having given the charge given. The jury is not authorized to believe nor the court to charge the jury that they might believe a fact against an accused when the facts and circumstances in evidence do not justify or raise it. It was the assumption of a damaging fact against the accused not in evidence, and placed him in the attitude of being a violator of the law and a wrongdoer. He may have violated the law in shooting at the man’s feet, if he did shoot at his feet or between them, or in front of him, but that charge was not given by the court

The court charged the jury as follows: “If you believe from the evidence that the deceased, J. G. Spurlock, and B. W. Nichols, went to the Overcash wagon yard and feed store to arrest the defendant A. 0. Condron upon the charge of unlawfully carrying a pistol, and that they were armed with pistols and appeared thus armed before and near the door of said grain store, and that the appearance of the officers thus armed, or their attempt to use such weapons, if they did so attempt to use them, or anything then done by said officers, or either of them at the time, either alone, or when taken into consideration with all the other facts and circumstances in evidence in .this case, was such as would commonly produce such a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper, under like circumstances with the defendant, as to render the mind incapable of cool reflection, or if you believe from the evidence that the said officers, in attempting to arrest the defendant, were using greater force than was necessary under the circumstances to secure the arrest and detention of the defendant, or that they had time and opportunity to inform him by what authority they were about to arrest him, and having such time and opportunity failed to inform him, and that their manner of attempting such arrest was such as would commonly1 produce such a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper, under like circumstances with the defendant, as to render the mind incapable of cool reflection, and while under the influence of such sudden passion he participated as a principal offender, if he was such offender, in killing J. G. Spur-lock at the time and place charged in the indictment, then you will find the defendant guilty of manslaughter, • and assess his punishment accordingly at confinement in the penitentiary for not less than two nor more than five years.” Various objections were urged to this charge. I deem it unnecessary to recapitulate, them. Before mentioning the criticism of the above charge, which is No. ■ IS in the general charge, I desire to notice another phase of the court’s charge, subdivision 13, which is as follows: “But if the deceased and L. W. Nichols attempted to arrest the defendant with a warrant in wanton manner, and in doing so used greater force than was necessary in the attempted arrest of the defendant, the use of such greater force than was necessary, if any, was illegal, and the defendant had the lawful right to resist it,- and if necessary or apparently necessary in liis self-defense to kill the party or parties engaged in such unlawful attempt to use such unnecessary force, if any was used hy them.” These charges are incompatible and in conflict. In one of the charges the jury is instructed that if the parties undertook to arrest in a wanton and unjustifiable manner, using greater force than was necessary, the defendant had the right to resist, and would be justified in killing. In the other charge the jury is instructed that if the sheriff undertook to arrest and used greater force than was necessary, and without giving the party notice of his purpose to arrest, etc., and used greater force than was necessary, he, the defendant, nevertheless, would be guilty of manslaughter. So it is observable that under one charge defendant would be justified in resisting, even to killing. Under the other he would not be justified, but would be guilty of manslaughter. These charges are confusing, and to say the least of it contradictory. Wherever charges on the same subject are thus contradictory, objections to' them are well taken, and the error is reversible. As I understand this record, the greater force that was used by the officers was shooting at Overcash and appellant, during which they shot appellant and wounded him. The law with reference to the use of greater force does not belong under such state of facts. If the officers in approaching the two defendants began firing upon them, the question of greater force is not an issue in the case, and this limitation upon the right of self-defense was unjustifiable, and yet the jury is instructed that, under this condition in one charge, they could convict of manslaughter, and under the other they could acquit on the theory of justification. 'Section 28 of the charge reads thus: “The burden rests on the state to establish the guilt of the defendant beyond a reasonable doubt, and if, after considering all of the evidence before you, you have a reasonable doubt of his guilt, you will acquit him; but, if the evidence satisfies your mind beyond a reasonable doubt of the guilt of the defendant as charged in the indictment, then you will convict him and ascertain from the evidence under the charge of the court the grade or degree of the offense of which he is guilty, and assess his punishment therefor accordingly.” This charge is held to be error in Comegys v. State, 62 Tex. Cr. R. 235, 137 S. W. 349. The Comegys Case lays down the correct and. well-settled rule. Appellant had the right to have reasonable doubt and presumption of innocence presented to the jury untrammeled by such qualification. That the state’s side of the ease may and should be appropriately submitted to the jury is the law of the land, but it is equally the law that the defendant shall have his side of the law — that is, such phases of the law as guarantee his legal rights — given untrammeled by qualifications that cut him off from the benefit of such law.

There is another, contention urged by appellant, to wit, that in section 20 of the charge the court shifts the burden or rather places it on defendant to show the deceased was attacking him or about to do so at the time of the killing. This was given as a basis for a further charge of the court to the effect that, if the officers were armed at the time of the difficulty, the law would presume they intended to kill or inflict serious bodily injury. This charge as given was error in my judgment. That the officers were armed was undisputed, for they began shooting and continued shooting until Spurlock was killed and defendant was shot down. The legal presumption that the officers intended to kill by the use of the means used by them should not have been curtailed as it was by the court in his charge. I deem it unnecessary to go further with this matter.

Believing as I do, under the unbroken linp of authorities and the settled law in Texas, that appellant has not been tried according to law, and has been deprived of those rights guaranteed under statutory enactments in this state, I enter the above why I cannot agree with this affirmance. I therefore most respectfully enter my dissent.  