Reviewing the record in the light of appellant's motion for a rehearing, we have decided that we were not warranted in concluding that there were no facts in the record which required the court to instruct the jury in substance in accord with subdivision 8, of Article 1105, Penal Code, in which it is said:
"In cases of burglary and theft by night, the homicide is justifiable at any time while the offender is in the building, or at the place where the theft was committed, or is within reach of gunshot from such place or building."
On closer scrutiny, we are of opinion that the evidence does disclose circumstances from which the jury might have inferred that appellant acted upon the reasonable belief that the deceased had stolen his whisky. Gerard v. State, 78 Tex.Crim. Rep.; Newman v. State, 58 Tex.Crim. Rep.; Joy v. State,57 Tex. Crim. 102.
We have not changed our view with reference to the law which governs. We think the statement in Law v. State, 26 Texas Crim. App., 655, correct; that is, that though theft be committed, or though the accused believe it to have been committed, if in killing the thief he acted upon malice and not to prevent the theft or the consequences thereof, it would be murder; and upon another trial this principle should be embodied in the charge.
We deem it unnecessary to detail the facts in addition to those referred to in the original opinion. We will say, however, that one witness testified that the trouble started about Andrew's whisky; "he missed it; said he was going to have it. Tom Hutch showed him that he was not in possession of it. He asked for his whisky, and got his gun, and Anderson told him Will Young had it. The door opened, Will Young started in, and the shot was fired." Another witness testified that while demanding his whisky, the appellant drew his pistol, and was told: "Wait a minute and I will tell you who got your whisky. Will Young got it." At that time Will Young appeared in the door, and the pistol was fired. The appellant testified:
"I asked for my whisky. Anderson said: `I ain't got your whisky,' and said: `Wait a minute, I will tell you who got your whisky. Will Young got it.' Will Young made for the door. He ran out the door. My pistol dropped down by breeches leg, and I just pulled up the pistol as he was running out. He just rushed out, and just as he was rushing *Page 293 on back, I was kinder frightened. I shot him. With reference to why I shot him, I was frightened. I knew he was larger, and I was unable to fight him. I meant to stop him. With reference to whether or not I knew at the time he had my whisky — no more than Anderson said: `Will Young got it.' I wanted it. When I shot I thought he had my whisky. Anderson said he had it, and he rushed out and rushed right back. From the time he rushed out until he rushed back was not no time. I believed that he had my whisky. Young never attempted to go out until Anderson said he had my whisky, so he run out the door. He had done no more that night to make me kill him than taking my whisky. The reason I was frightened, I didn't know but what he might be armed."
For the reason stated, the motion for rehearing is granted, the affirmance set aside, and the judgment reversed and the cause remanded.
Reversed and remanded.__