
    BROWN v. STATE.
    (No. 9279.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Homicide <@=^301— Instruction that defendant’s use of' force in protecting brother was warranted if he did not know cause of difficulty with deceased heldi erroneous.
    In prosecution for murder, an instruction that if defendant believed his brother was in danger at hands of deceased, and did not know cause of difficulty, he was warranted in using such force as necessary to protect brother, was erroneous, as denying defendant right to act in defense of brother though he knew cause of difficulty.
    2. Homicide <&wkey;301— Instruction that use of force by defendant in protecting brother was warranted if brother was acting in rightful defense and defendant was not principal held erroneous.
    In prosecution for murder, instruction that, if defendant’s brother was acting in ’rightful defense, and defendant was not a principal, defendant was warranted in using such force as necessary to protect brother, was erroneous, since, under such instruction, defendant could not act in defense of brother unless lat- ' ter was acting in self-defense, and unless defendant was not a principal in difficulty.
    On Motion for Rehearing.
    3. Criminal law &wkey;1133 — Ruling on self-defense not necessary where evidence on which it is based is not called to attention of court.
    Where neither in motion for rehearing nor in exceptions to court’s charge was court’s attention specifically called to evidence on which charge of self-defense was rendered essential, and opinion of Court of Appeals did not negative such right, a ruling thereon is not necessary or expedient.
    ©s^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Floyd County; R. 0. Joiner, Judge.
    Jim Brown was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Mathews & Overson, of Floydada, and Williams & Martin, of Plainview, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in Floyd county for the offense of manslaughter, and his punishment assessed at confinement in the penitentiary, for a term of five years.

A few months before the killing appellant and deceased, who were brothers-in-law, had a difficulty in which deceased inflicted rather serious injuries on the defendant, and there had been more or less ill feeling between them since that time. • It seems from the evidence that the deceased had promised appellant’s father and mother, who were his father-in-law and mother-in-law, his car in which to make a trip, and that John Brown, a minor brother of the defendant, had done work on the car, and had incurred some expense on the same in making it ready for the trip. The record further shows that when the deceased learned that appellant was to go with his father and mother, he then refused to allow them to use his car, and some controversy arose as to who would pay for the work and repairs that had been made on it. Appellant’s sister, who was the wife of the deceased, sent John Brown, appellant’s .brother, word the day of the difficulty that if he would come and place a radius rod on the car that he would be paid for the same. Deceased and appellant, together with appellant’s two brothers and other parties, met on the day of the homicide at the home of one- Marrs, another brother-in-law, where it seemed they had arranged to meet to go in swimming. John Brown, It seems started to put the radius rod on deceased’s ear, and deceased then told Brown that he would not pay him for the same. A controversy arose between them, and deceased advanced on John Brown, and Brown struck at him or struck him with a radius rod. The undisputed testimony shows that John Brown was a boy 18 or 19 years of age, weighing about 120 pounds, and the deceased was a mature man, weighing some 160 pounds. In the difficulty at Marrs’ home where the killing occurred,1 deceased had John Brown down on the ground and was biting him when appellant shot the deceased. Both sides introduced threats made by the opposite parties, and appellant introduced testimony showing that deceased had threatened all of the -Browns.

The- court, after charging on murder, manslaughter, and self-defense, gave the following charge:

“In connection with the above and foregoing, you are instructed that if the defendant, Jim Brown, viewed from his standpoint, believed that his brother,- John Brown, was in danger of- death or serious- bodily injury at the hands of Josh Cox, and that the said Jim Brown did not know the cause of the difficulty, or if John Bro.wn was acting in his rightful defense, and defendant was not acting as a principal, he would be warranted in using such force as appeared to him to be necessary to protect his brother, John Brown, and, in such case, or if you have a reasonable doubt of the intent of the said Jim Brown, you will find the defendant not guilty.”

Proper exception was urged to this charge to the effect that it limited the right of the defendant to defend himself or his brother, and gave him the right to do so only in the event he was not a principal, and the further objection was made that Jim Brown was given the right to defend his brother only if lie did not know the canse of the difficulty, when under the law and the facts in this case such knowledge does not as a matter of law cut off his defense. The further objection was made to said charge that it assumes John Brown was the aggressor, when, as appellant claims, the facts show that the deceased precipitated the difficulty by advancing upon John Brown. The further objection is made that said charge shifts the burden of proof. We think there oan be no question but that the charge is upon the weight of the evidence, and that it denies to Jim Brown the right to act in defense of his brother if he knew the cause of the difficulty. Under the facts above stated, as well as all the facts disclosed by the record in this ease, the court was without authority to say as a matter of law that John Brown, the brother of the defendant, brought on the difficulty, and was without authority to say as a matter of law that the appellant could not act in defense of his brother if appellant knew the cause of the difficulty. At least from the annellant’s standpoint the testimony clearly raises the issue that Oox, the deceased, was the aggressor throughout the entire affray, and, should the jury have taken this view of the matter, they would have had the right to have believed that appellant had the right to act in defense of his brother notwithstanding the fact that he knew the cause of the difficulty.

The charge is further erroneous in that it instructs the jury that' before appellant could act in defense of his -brother that they must find that his brother was acting in self-defense, and that then he could not act in behalf of his brother if he was acting as a principal in the difficulty between the deceased and his brother. As a matter of course, if the brother of appellant was acting: in his rightful self-defense, then the appellant had the right to act in defense of said brother whether he was acting as a principal or not. Appellant cites the cases of Condron v. State, 62 Tex. Cr. R. 485, 138 S. W. 596: Young v. State, 68 Tex. Cr. R. 580, 151 S. W. 1046: Black v. State, 65 Tex. Cr. R. 336, 145 S. W. 948, and they sustain his contention that the charge ábove complained of is erroneous.

For the error in giving the charge above set out, it is our opinion that the judgment of the trial court should be reversed and the cause remanded.

PER CURIAM-

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals ¿ind approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Appellant, in his motion for rehearing, suggests that the opinion' of the court is incomplete in failing to discuss the right of the appellant to act in defense of his own person. We note in the ninth paragraph of the court’s charge that there is reference to the appellant’s right to defend his own person. In the opinion, as written, this right is not negatived. Having reversed the case for the error pointed out, we do not deem it expedient or necessary to give further expression upon the subject. Neither in the motion for rehearing, nor in such exceptions as were filed to the court’s charge, or in any special charge, do we find the court’s attention specifically called to the evidence upon which a charge on self-defense, as applied to the appellant’s own person. was rendered essential.

The motion for rehearing is overruled.  