
    CASTLE v. STATE.
    (No. 5296.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    1. Homicide <©=3300(12) — Assault with Intent to Mubdeb — Instbtjctions — Self-Defense.
    In a prosecution for assault to murder, where charge on self-defense did not plainly show that burden of proof was upon state to establish facts constituting unlawful assault beyond reasonable doubt, it was error to refuse to correct charge.
    2. Homicide <9=3300(8) — Assault with Intent TO Mubdeb — INSTEUCTION.
    In prosecution for assault with intent to murder, facts held to raise issue of actual danger so as to require a charge on presumption of intent to kill from use of deadly weapon by injured party.
    
      Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Yerner Castle was convicted for assault with intent to murder, and lie appeals.
    Reversed and remanded.
    W. W. Kirk, of Plainview, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   ■MORROW, J.

The appeal is from a conviction for assault with intent to murder.

Appellant cut the injured party with a pocketknife, causing some serious injuries. There was proof of previous difficulties and threats by the injured party against appellant. Appellant’s version of the difficulty was to the effect that he came upon the injured party unexpectedly on walking into the postoffice. He claimed that as soon as he and Echols, the injured party, recognized each other, Echols made a quick grab for his hip pocket, and that he (appellant) made a rush upon him to keep from being killed; that he acted as quick as he could because he saw he had no chance to retreat; that he had been whittling and had his knife in his hand and clinched Echols with the idea of cutting him in the arm and cutting him loose from his six-shooter. The evidence showed that the parties were down on the floor, and that when they were separated, or about the time they were separated, the injured party had a pistol in his hand. As appellant described it, during the fight he could not describe all of the incidents owing to his fright, rage, and excitement, but that at the time he was getting away or trying to get away he was facing a 45 pistol in the hands of his assailant.

The court submitted the law of self-defense upon apparent danger, using the following language:

“If, from the evidence, you believe the defendant assaulted the said R. E. Echols, but further believe that at the time of so doing the said Echols had made an attempt to shoot the defendant, or had made such a demonstration which causd him, defendant, to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant did, with a knife, cut the said R. E. Echols, then you should acquit him.”

Appellant complained of this charge in a timely manner upon the ground that it shifted the burden of proof and failed to give him the benefit of the reasonable doubt, and requested a charge which would have corrected the error, and also have submitted the theory of actual danger. This was’ also refused. We think the court' should have corrected his charge on self-defense so that it would have been made- plain to the jury that the burden of proof was upon the state to establish the facts constituting an unlawful assault by the appellant and advising them that the law required as a predicate for conviction proof of such unlawful assault beyond a reasonable doubt. A charge similar to that given was considered by the court in Stuart v. State, 57 Tex. Cr. R. 592, 124 S. W. 656. See, also, Knox v. State, 74 Tex. Cr. R. 126, 167 S. W. 730.

The facts also raised, we think, an issue of actual danger and required a charge on the presumption of the intent to kill from the use of a deadly weapon by the injured party. See Ward v. State, 30 Tex. App. 689, 18. S. W. 793; Teel v. State, 69 S. W. 532; Hudson v. State, 59 Tex. Cr. R. 650, 129 S. W. 1125; Branch’s An. P. C. § 1918; Vernon’s Sayles P. C. art. 1106.

For the errors pointed out the judgment of the lower court is reversed, and the cause remanded. 
      ©^For otter eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     