
    HOLMES v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.)
    1. Homicide (§ 300) — Self-Defense — Instructions.
    Defendant was not entitled to have given his requested charge that, if it reasonably appeared to him that deceased or P. was about to shoot him, he was justified in slaying deceased; his own testimony showing that he feared no assault from P., but only one from deceased, and that he was in no danger from P., or at least thought he was not.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    2. Homicide (§ 300) — Instructions.
    The court having neither charged on provoking the difficulty, nor in any way limited defendant’s right' to act from real or apparent danger, it was unnecessary to instruct in regard to his right to carry a gun, or to go by the place.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §'§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    3. Homicide (§ 300) — Instructions — Presumptions.
    When, at the time of the killing, deceased had in his hand a deadly weapon, failure to specifically instruct as to the presumption of his intent to use it, if he was attempting to use it, is reversible error, when a soecial charge was requested thereon; but, in the absence of such request, the record will be examined as to whether injury could have resulted from failure to so charge.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. i 300.]
    4. Homicide (§ 300) — Self-Defense — Instruction-Real and Apparent Danger.
    Instructions on self-defense should give the right to act on apparent as well as real danger, where there was not an actual attack, but a reaching for a pistol.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. §,300.]
    5. Homicide (§ 300) — Self-Defense — Instructions.
    The paragraph in the part of the charge giving definitions: “Every person is permitted * * * to defend himself against any unlawful attack, reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified when committed in defense of one’s person against any unlawful and violent attack, made in such a manner as to produce a reasonable expectation or fear of death or some serious bodily injury” —which is but a definition, presents no error; the court, in instructing as to the law of self-defense and applying it to the facts, not limiting defendant's right to act from appearances of dan-' ger in any manner, but correctly instructing that if deceased was “doing an act, from the manner and character of which it reasonably appeared to him his life was in danger, or he was in danger of serious bodily injury, then he was justified in slaying deceased.”
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, San Augustine County; W. JB. Powell, Judge.
    W. H. Holmes was convicted of murder, and appeals.
    Reversed and remanded.
    Blount & Strong, of Nacogdoches, and Davis & Davis, of San Augustine, 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 indicted, charged with murder, and convicted of murder in the second degree, and his punishment assessed at five years in the penitentiary.

In this case the appellant, in his motion for new trial, bases his main complaints to the charge of the court and the failure to give several special instructions requested. Defendant does not deny the killing, but claims he was justifiable in so doing; and the court erred in submitting this issue, and erred in failing to instruct the jury as to the presumption of law arising from the attempted use of a pistol. The-defendant testified that deceased, Mr. Boatman, had requested him to sell a horse for him. The day of the killing, he states, he got a chance to sell the horse, and went to see deceased about it. That, when he found deceased, he was with Redman Posey, and that, without just cause or provocation, both cursed and abused him; Posey pulling a pistol and telling Boatman that what he had he (Boatman) had. He says, after they had cursed and abused him for some time, they all went on towards the place where Boatman was stopping. That he then went home, and, as he had promised some friends to go duck hunting with them, he got his gun and started to go to the pond- where he had promised to meet them; the road going by where he knew Boatman was staying. It appears that all of them were drinking considerably on that day.

Appellant states that he passed the house where deceased was staying, and then' details the matter as follows: “As I left Mr. Posey’s house going down the lane, I met Redman Posey' about 50 or 60 steps, possibly 65 steps, from Mr. Perry’s. I was- there when it was stepped since that time. Mr. Posey was afoot and coming, towards Mr. Perry’s, and I was going the other direction towards Prairie. When I met Mr. Posey, he said, ‘Hello, where are you going in such a -hurry?’ and I said X was going towards Prairie duck hunting; and he said, ‘I expect you are;’ and I said, ‘Yes, come and go with me,’ or something to that effect; I wanted to pass by; I did not know whether he was sober, and he spoke something about the Choate boys up in Shelby county. I used to run-with them, a right smart, and we were talking about them some, joking the boys, and I said, ‘I am going to the duck pond;’ and he said, ‘Have you got any whisky?’ and I said, ‘Yes,’ and I pulled out a quart bottle, out of my shot pouch. 1 had a shot pouch about that long I toted squirrel or birds in and shells too, and it was hanging on the horn of my saddle, and I pulled the bottle out and handed Mr. Posey it, and he taken a drink and handed it back to me, and X set it on the horn of my saddle on my leg, and was sitting there talking, and the- first thing I knew after that Mr. Boatman came up; he came right up by the side of my mule and he said, ‘What did North Carolina say to South Carolina?’ and that was an old saying; he said, ‘What did they say?’ and'I said, ‘They said it was a long time between drinks;’ and the bottle was sitting up there and I han'ded it over to Mr. Boatman, and' he taken .a big drink. Mr. Posey had a pistol on him; I could see the bulk of it under his coat, swinging around. He carried his pistol in a scabbard on a belt. The scabbard stuck below the end of his coat; I could see it when he was walking; see the end of the scabbard. He had his pistol when I met him there. When I said a long time between drinks, Mr. 'Posey spoke one or two short words, and Mr..Boatman commenced, and he said, ‘Where in the hell are you going?’ and I said, ‘X was going a duck hunting;’ and he said, ‘You are a God damn liar; you are not going to no duck pond;’ and I said, ‘Yes, I am;’ and he said, ‘You are a God damn lying son of a bitch; you are not going;’ and he kept cursing, and I said, ‘You all rode over me in the bottom, and I took it;’ and I said, ‘It is. about time you were quitting it;’ I said, ‘I have, not stopped to have any trouble;’ and I said, 'Redman stopped me;’ and he said, ‘You are a God damn liar;’ Redman said that, and I said, ‘That is all right;’ and Boatman was cursing me for a son of a bitch and everything, and my mule in standing there was working around; I was sitting on him; he was restless;- and he had turned around' and had his head turned to come back towards home, and about that time I made some rough talk back to them about getting on me so hot, and told him he was a God damn liar,' or something that way; and, when I said that, Redman Posey jerked his pistol up and said to Boatman, ‘I have got as good a pistol as ever made, and what I have got you have got it;’ and I said, ‘Mr. Boatman has got to apologize to me to-morrow, or you or me one die;’ and I turned to ride off, and, when I got something about something like 10 steps, maybe, I don’t suppose over 8 or 10 steps, I heard him say, ‘I will kill the God damn son of a bitch;’ and I looked back over my shoulder and looked back that way, and I saw him hold of the pistol, and Posey too, and I whirled my mule. I saw there wasn’t any chance to get away; I whirled the mule; and, when I whirled him, I threw the gun to my shoulder. I said, ‘Look out, Redman,’ and I cut down on him. It looked like Boatman and Posey both had a hold of the pistol at the time I shot. -X shot Mr. Boatman, because I saw that he was going to kill me; it was to save my life; that is just how come it. I stated that I had gotten about 10 steps away from him, riding in the direction of Mr. Perry’s house, when I heard those remarks. When. I heard him say he would kill the God damn son of a bitch, I looked back. I just jerked the mule sort of that way and threw myself in' the saddle. I was going with my face to the west.; the road run west. I was going that ^my, and the mule sort of turning, and I threw the gun up, and, just as I turned to shoot, I said, ‘Look out, Redman,’ and shot. I did not shoot more than one time.”

This puts the matter in as favorable light for appellant as any part of the record, and we do not think the court erred in refusing the special charge wherein appellant' requested the court to instruct the jury that, if it reasonably appeared to, him that deceased, or Redman Posey, was about to shoot him, he would be justified in slaying deceased. Appellant’s own testimony shows that he did not fear an assault .from Posey; he calling to Posey to get out of the way. Appellant’s testimony prfecludes the idea that he was. in any danger from Posey, or he thought so.

Special charge No.-1 was fully covered by the court in his main charge; and the testimony does not raise the issue on which charge No. 2 is based. ' As the court gave no charge on provoking the difficulty, nor in any wise limited the right of defendant to act from real or apparent danger, it was not necessary for the court to instruct the jury in regard to appellant’s, right to carry a gun or go by Mr. Posey’s. ■

Special charge No. 5 was fully covered by' the court in his main charge; - but the presumption from the use of a weapon, requested in charge No. 6, was not given, and appellant earnestly insists that the court erred in refusing to give this charge. It reads: “You are charged, as a part of the law of this case, that if you find and believe from the evidence that, at the time defendant fired the shot, the deceased was malting, or attempting to make, an attack upon him, under circumstances which reasonably indicated his intention to murder defendant or to do him some serious bodily injury, and the weapon used by deceased, and the manner of its use, were such as were reasonably calculated to produce either of those results, then the law would presume that deceased intended to kill defendant or to do him some serious bodily injury.”

Appellant testifies that some time during that day Posey had pulled his pistol and said to deceased, “What I have got you have got;” that, when deceased cursed him, he rode off, and, looking back, he saw Posey had his pistol out and deceased had hold of it. Taking into consideration that appellant says that he heard Posey say that whatever he had deceased could get, was this such use of the pistol as to call for a charge instructing the jury that, if deceased was attempting to use the pistol, then the law presumes that he did intend to do so? Were this an original proposition, the writer would individually hold that, when the court instructed the jury that if “deceased was making an attack, or was doing some act which from the manner and character thereof, viewed from the standpoint of defendant, there was created in his mind a reasonable expectation or fear of death or serious bodily injury,” he was guilty of no offense, the failure to instruct the jury as to the presumption arising from the use of a weapon would not present reversible error. However, it seems to be the rule established by this court that, when the deceased had in his hand a deadly weapon, the failure to instruct the jury in regard to this presumption, when a special charge is requested, presents reversible error; and, being of the opinion that this court should announce the law and adhere to one line of decisions, the writer will not again refer to this matter, but will follow those decisions until the court is willing to change this rule of law. However, if no special charge is requested, we will look to the record to see if injury could have resulted from a failure to so charge. The idea being, in so far as we are concerned, that it would only be necessary to charge this presumption specifically, when there was an issue raised 'by the evidence as to the intent of the party, and if there was no evidence raising this issue, then if the court instructed the jury that, if one assaulted another with a pistol, he would be justified, or if it reasonably appeared to one, from the acts and conduct of the other, that his life was in danger, or he was in danger of serious bodily injury, this would present the case in a way in which no defendant could or would be injured.

The criticism of the court’s charge on murder in the second degree that it limited appellant’s right to act in self-defense if deceased made an actual attack is not, when the charge is read as a whole, such error as it alone would be cause for reversal; but, as the case will be reversed because of the court’s failure to instruct the jury in regard to the presumption arising from the use of a weapon; we would suggest that this paragraph of the charge be so written that it would give defendant the right to act from real or apparent danger. The charge on manslaughter is also subject to the same criticism. In this ease the evidence does not raise an actual attack, but a reaching for a pistol, which, if true, would probably create in the mind of one a fear that deceased was then and there about to assault him.

The only other ground in the /motion we deem it necessary to mention complains of the following paragraph of the court’s charge: “Every person is permitted by law to defend himself against any unlawful attack, reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified by law when committed in defense of one’s person against any unlawful and violent attack, made in such a manner as to produce a reasonable expectation or fear of death or some serious bodily injury.” This is but a definition that occurs in the charge where the court is defining murder in the first and second degree. When the court instructed the jury as to the law of self-defense, and applied it to the facts in this case, he does not limit appellant’s right to act from appearances of danger in any manner whatsoever, but instructs the jury that, if deceased was “doing an act, from the manner and character of which it reasonably appeared to him his life was in danger, or he was in danger of suffering serious bodily injury, then he was justified in slaying deceased, and the jury should acquit him.” We discussed a similar charge to that given in this case recently in the case of Lee v. State, 148 S. W. 706, and in other cases, and therein held, and again hold, that even though this paragraph be given in a charge wherein definitions are being given,- if the court in applying the law in that part of the charge, wherein-the issue of self-defense does so correctly, this presents no error. However, in a case of this kind, this character of charge should not be given.

The judgment is reversed, and the cause is remanded.  