
    CARDEN v. STATE.
    (Court of Criminal Appeals of Texas.
    May 17, 1911.
    Rehearing Denied June 21, 1911.)
    1. Homicide (§ 300*) — Instructions — Sele-Deeense.
    An instruction in a manslaughter trial, limiting accused’s right to act in defense of himself to defense against an “unlawful attack,” was improper, where the testimony did not show an actual attack, but that decedent placed his right hand under his coat in a threatening manner.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 61A-632; Dec. Dig. § 300.*]
    2. Homicide (§ 116*) — Sele-Deeense.
    If decedent by his words, acts, and conduct created in accused’s mind a reasonable expectation or fear of death or serious bodily injury at decedent’s hands, accused had the right to shoot.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.*]
    3. Homicide (§ 300*) — Instructions—Provocation oe Difficulty.
    Where, in a manslaughter trial, the court instructs that, if accused went to the place of the killing with intent to provoke and kill, he could not rely on self-defense, an instruction should also be given, if the evidence warrants it, that if accused had no such object, and did not know the decedent was at the place, he would not be deprived of his right to defend against real or apparent danger.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.*]
    Appeal from District Court, Travis County ; George Calhoun, Judge.
    
      W. P. Carden was convicted of manslaughter, and lie appeals.
    Reversed and remaúded.
    See, also, 129 S. W. S62.
    E. T. Moore, for appellant.
    C. B. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

In this case, under an indictment charging murder, appellant was tried for manslaughter. He was convicted, and sentenced to four years’ confinement in the penitentiary.

1. The appellant presents but two questions in the record: One, that the court erred in his charge on manslaughter, in that the court instructed the jury that if appellant, “in a sudden transport of passion aroused by adequate cause, as the same has been here-inbefore explained, and not accidentally, and not in defense of himself against an unlawful attach,” etc., he would be.guilty of manslaughter ; the contention being that the testimony did not tend to show that deceased had made an actual attach, but that the testimony from defendant’s witnesses was that the deceased, after he and appellant had a few words, said, “ ‘It’s a damn lie, nnd I won’t take nothing back,’ stepped towards appellant, and threw his right hand under his coat,” presenting apparent danger to appellant, viewed from his standpoint, taking into consideration the reputation of deceased. In the absence of a special charge, this, perhaps, would not alone present such •error as to call for a reversal, yet the criticism, we think, is well founded, and the court should have presented the matter as made by the evidence in the case.

2. Appellant’s other contention is that the evidence called for a charge on self-defense from three different viewpoints: First, accidental killing, which was correctly presented ; second, conduct in the light of communicated threats, which was also given; and, third, apparent danger, judged of from the point of view as it reasonably appeared to appellant at the time, from the words, acts, and conduct of deceased, which was not given. A state’s witness, Tom Hamby, testified that in the afternoon deceased and appellant had some words, and deceased had walked behind the bar, where he had his pistol, and' said to appellant, “If you are a brother of Tom Carden, you are a son of a bitch,” when appellant turned and walked out of the saloon. This was about 5 o’clock in the afternoon. Tom Carden testified: “I looked around, and Pres Carden and Reeves were in the second doorway, and I saw Stanford move out from the bar, probably two or three feet, and appellant (Pres Carden) said, C want you to take back what you called me this evening.’ Stanford said, ‘Well, what did I call you?’ Pres said, ‘You said, if I was a brother of Tom Carden, I was a God damn son of a bitch,’ when Stanford said, ‘It’s a damn lie, and I won’t take nothing back, and I won’t run,’ stepped towards Pres, and threw his right hand under his coat, when the shot was fired.” Appellant on this point testified to a conversation had with deceased in the afternoon, and that deceased had called him a God damn son of a bitch, when he left; that he went back to the saloon later, only after being told that deceased had left and gone home, or he would not have gone to the saloon; that, when he entered the saloon, Tom Carden said, “Come,, let’s take a drink,” when General Hamby remarked, “Boys, for God’s sake don’t have any trouble here,” to which he replied, “ ‘All I want is for him to take back what he said.’ Stanford remarked, ‘What did I say?’ I said, ‘You told me, if I was a brother of Tom Carden, I was a God damn son of a bitch.’ He replied, ‘It’s a God damn lie; I didn’t say it.’ I said, ‘You did say it.’ He said, T didn’t say it; I am no coward, and I ain’t going to run, and I’m the fighten-est little man you ever saw,’ and stepped one or two steps towards me, and threw his hand back to get his gun. I knew he was a bad man, and would kill me in a minute, and I jerked my gun out.” The shot was then fired.

While it is true that appellant testified that the pistol went off accidentally, that he was only trying to stop him, and the court properly charged, if the pistol was accidentally fired, to acquit, yet we think the jury should have been told in the charge, under the circumstances, that even though they found that the pistol was not accidentally fired, if deceased, from his words, acts, and conduct at the time, created in the mind of appellant a reasonable expectation or fear of death or serious bodily injury, he would have the right to shoot.

The charge on accidentally firing the pistol is admirably drawn, and on another trial of this ease the court should in his charge present the theory that if the pistol was fired under those circumstances, or if intentionally fired under the same conditions, he should be acquitted. Under our law, it is immaterial what the view of the trial judge may be as to the truth or falsity of an issue presented by the testimony. The matter should be presented to the jury for their determination. The jury may have believed appellant intentionally shot deceased, yet if the jury believed he did do so under the conditions set forth in this paragraph of the court’s charge, he would be justified in so doing under our law.

3. As the case will be reversed on account of the above matters, there is another thing we would call attention to, although not complained of in the motion for a new trial. The court charged the jury in a paragraph on the theory that, if appellant went to the saloon with the intent to provoke a difficulty, he could not claim to have acted in self-defense. If, on another trial, the court thinks the evidence calls for this charge, he should also Inform the jury In an affirmative way that if defendant had no such object or purpose, and did not know deceased was in the saloon, he would not be deprived of his right to defend himself against real or apparent danger.

The judgment is reversed, and the cause is remanded.  