
    BAINES v. STATE.
    (No. 8390.)
    (Court of Criminal Appeals of Texas.
    June 4, 1924.
    State’s Rehearing Denied June 27, 1924.)
    1. Homicide <&wkey;300(8) — Defendant’s testimony held to require instruction as to self-defense.
    In murder prosecution, defendant’s testimony held to require an instruction on the law of self-defense.
    On State’s Motion for Rehearing.
    2. Homicide &wkey;53.00(8) — In murder case, any evidence of self-defense requires submission of issue to jury. •
    In murder case, any evidence raising the issue of self-defense is sufficient to require submission of the issue to the jury.
    Appeal from Criminal District Court, Harris County; O. W. Robinson, Judge.
    Robert Baines was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Bred L. Perkins and H. Rob Keeble, both of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Under an indictment for murder, appellant was convicted of manslaughter, and his punishment fixed at confinement in the penitentiary for a period of five years.

The state’s testimony may be thus summarized: On the day upon which the homicide occurred the deceased made inquiry of the witness Addie Brown touching the whereabouts of the appellant, and stated that he was looking for him for the purpose of whipping him. This occurred in the afternoon. In the evening appellant stopped hia wagon near the restaurant of the witness Matthews, and went on an errand to another part of the town. During his absence the deceased entered the restaurant and made inquiry for the appellant, stating that he had told the appellant that if he ever heard of him talking to the deceased’s old lady he was going to kill him. The witness Addie Brown informed the appellant of her conversation ’with the deceased. After entering the restaurant, appellant asked the deceased if he wanted to see him. Deceased said that he did, and told the appellant to come outside. Appellant started, but after deceased had gone through the screen door, appellant said he would go no further: that deceased could tell him from that place what he wanted with him. Deceased said that if appellant wanted him to come back in and tell him he could “damn sure do it.” He did return, and struck the appellant with his fist. Matthews forced the deceased out the screen door, and immediately thereafter noticed a pistol- in the hand of the appellant, and called the deceased’s attention to it, when he said that he “didn’t give a damn.” About that time the pistol fired, and deceased ran. Appellant went to the door and fired two more shots. One shot took effect upon the front person of the _ deceased. The state’s witnesses noticed no demonstration made by the deceased before the shots were fired.

The reputation of the deceased, as a violent man was bad; that ofl the appellant as an inoffensive man was good. The deceased was a larger and heavier inan than the appellant.

In substance, the appellant’s testimony is this: He had started home in a wagon, and stopped his team at the restaurant of Matthews. He went elsewhere to get some papers, and when fie came back after his wagon he met Addie Brown, who told him that there was a man in the restaurant who said that he was going to whip him. Appellant went into the restaurant and inquired for his wagon, and was told that his wife had sent for it. At the time he entered he did not know that the deceased was there, but, upon seeing him, he asked him what he wanted. Appellant described the occurrence in language substantially the same as that of the state’s witness, and stated that when the deceased came into the room he hit the appellant twice, and knocked him down, blackened his eye, broke his lip, and made it bleed; that this caused him pain. Matthews shoved the deceased outdoors, and appellant saw him starting back with some shining object in his hand, which he thought was a knife, and, believing that his life was in danger, he fired. Appellant had heard of previous difficulties in which the 'deceased had engaged, and knew that he carried a knife. He had never had any difficulty or cross wordsi with the deceased, and he had no reason to shoot him except in order to protect himself. Appellant said that he was very much excited at the time of the occurrence; that he had never had relations of any kind with the wife of the deceased, nor had he given him any cause for animosity. Appellant admitted on cross-examination that he had made a statement in which he said that deceased had told him not to let him catch him with a woman whom he named, but not the wife of deceased; that deceased would “romp” on him if he ever caught him-with this woman.

The court instructed the jury on the law of murder and manslaughter, but refused to charge .on the law of self-defense. The verdict was for manslaughter, and the penalty was assessed at confinement in the penitentiary for a period of five years. The failure and refusal to charge on self-defense was raised by exception and by the special charge which was refused. In refusing to instruct on the law of self-defense it is believed that the learned trial judge fell into error. See Winn v. State, 91 Tex. Cr. R. 455, 239 S. W. 947; Branch’s Crim. Law, § 445; Jones v. State, 17 Tex. App. 612.

The judgment is reversed, and the cause remanded.

On State’s. Motion for Rehearing.

HAWKINS, J.

The state has filed a motion for rehearing, in which it is insisted that we were in error in holding that the issue of self-defense was raised, and that the lower court should have permitted the jury to pass thereon under appropriate instructions. If this issue was raised by 'any testimony in the case it was the duty of the court to permit the jury to pass upon it. We have again examined the statement of facts, and are confirmed in our views that appellant’s testimony clearly raised the issue. It is not for us to say whether the evidence was true or false, but it was for the jury to pass upon that issue, and they should not have been deprived of the right to do so.

The motion for rehearing is overruled. 
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