A strong motion for rehearing urging error in the refusal of the trial court to charge the law of Article 1106, P.C., and divergent views of the court upon the questions raised, coupled with extended effort to arrive at a correct solution of the issues, have delayed the final decision herein. Our views reflect our best endeavor to decide aright under present laws.
Article 1106 P.C. is as follows: "Presumption from the use of weapon by deceased. — When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapons or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury."
There are cases in which an application of this article may be demanded. Our judgment is that the instant case is not one of them. If we interpret the facts correctly and grasp the propositions of law submitted, the court in this case gave to appellant a charge much more favorable to him, and which laid upon him a much less burden than would have resulted had the court given a charge applying Article 1106, supra. If we be correct in this statement, it would *Page 289 be a violation of the mandate laid upon us by Article 743 of our Code of Criminal Procedure to reverse this case because of a failure to charge the law of Art. 1106. Article 743, supra, plainly forbids a reversal by this court for a disregard of any of the nine preceding articles of the statutes regarding charges, unless it appear from the record that the alleged error was calculated to injure the rights of the defendant, or to affect the fairness and impartiality of his trial. At the risk of repeating, we say that if the charge given was more favorable to appellant and laid a less burden on him under the instant facts, than would have been the case had Article 1106 been charged, we would disregard Article 743 if we reversed this judgment, for such reversal would be for an omission which could not have injured the rights of the accused or prevented his having had a fair trial.
Article 1106 makes it necessary that three issues of fact be affirmatively found by the jury to exist before any presumption of law based thereon could arise, viz: first, that deceased had a weapon; second that such weapon in the manner of its use was calculated to cause death; third, that with such weapon deceased was making an attack upon the accused reasonably indicating an intention on his part to kill. Is this a correct analysis? Kendall v. State, 8 Texas Crim. App. 569, is the leading case. There was no dispute in that case over the fact that deceased had a loaded pistol, that he had made a threat to kill and cocked his pistol, and was peering around the door facing of the room in which was his intended victim, nor that he was holding said loaded and cocked pistol aimed into said room when he was shot by the accused. As far as we know this was the first opinion by this court holding necessary an application of Art. 1106 in the charge. The facts stated seem to call for such charge. The opinion is interesting and worthy of study to get the view point of the great lawyer who wrote it and the great court which handed it down. We quote certain parts of it as illuminating our position that under the facts of the instant case the law of Art. 1106 was not only inapplicable but if properly given would have caused vigorous protest from appellant. Judge Clark said:
"The law separates unlawful violence to the person or unlawful attacks upon the person into two distinct classes, and the right of resistance, to the extent of taking life, must be exercised under essentially different conditions according to the nature and severity of the attack. If it reasonably appears by the acts of the assailant, or by his words coupled with his acts, that it is his purpose or intent to murder, ravish, rob, maim, disfigure, or castrate the assaulted party, then the latter, or some other person in his or her behalf, may slay the aggressor while he is in the act of committing the offense, or after some act is done by him showing evidently an *Page 290 intent to commit such offense. If the weapons or means used by the party attempting or committing the offense are such as would be calculated to produce that result, it is an imperative presumption of law, not of fact, that the person so using them designed to inflict the injury (Penal Code, Art. 571); the language of the statute is that `it is to be presumed that the person so using them designed to inflict the injury.' Not that the jury may presume that fact, or are authorized to exercise their intelligent discretion in determining whether the person slain, in view of all the evidence before them, really intended to perpetrate the injury; but if the weapon and the manner of its use are such as would have been calculated to produce the result, and the jury determine this affirmatively as a question of fact, pertaining rightfully to their province, then the law steps forward with its presumption and closes the door to further inquiry."
We further quote:
"The law makes different provisions for the exercise of the right of self-defense or the protection of another, according to the gravity, actual or apparent, of the attack; and the character of the attack must usually be determined by the judge in the first instance, before he delivers his charge to the jury. If the attack of the person slain was manifestly with intent to murder or maim, — that is, made with weapons or other means calculated to produce either of those results, — then there is no occasion to instruct a jury as to the law which obtains in case the attack was of a milder character, because such law is not applicable to the case, and can subserve no purpose other than to confuse the jury. On the other hand, if the attack clearly comes within the meaning of `any other unlawful and violent attack' than with intent to murder, or main, or seriously injure, then the law governing the graver attacks should be altogether discarded as inapplicable. It can seldom happen in any case that such a determination by the judge can be attended with serious embarrassment, because it is only required to contemplate the weapons or means used by the assailant in the first instance, and if they are such as would have been calculated to produce death, or mayhem, then the law fixes the character of the assault. Penal Code, Art. 571. But if, upon the trial of any case, the peculiar state of the evidence renders it necessary, in the opinion of the judge, to submit to the jury the law governing the right of resistance to either character of attack, then great caution must be exercised in framing instructions, and the jury must be impressed with the distinctions which obtain in each case, in order that they may not apply to the one the law applicable to the other."
And again: *Page 291
"The provisions of this article were directly applicable to certain phases of the evidence, and of paramount importance to the rights of the defendant. If the jury believed from the evidence that, at the time the fatal shot was fired by the defendant, the deceased, Brown, was making a violent attack upon Brooks, under circumstances which reasonably indicated an intention upon his part to murder or maim Brooks, and the weapon used by Brown, and the manner of its use, were such as were calculated to produce either of those results, then the law presumed that Brown designed to murder or to maim Brooks, and the jury should have been so informed in the most explicit terms."
In the instant case appellant was on trial for killing his wife. He claimed he was shooting at his step-son. Without attempting to further state the facts, we will use the term deceased herein referring to the step-son, who was also killed a little after appellant's wife was shot.
If the quotations above given announce correct law, the trial court in the instant case, following them in an attempt to apply the law of Article 1106, would have told the jury that if they believed from the evidence before them at the time of this trial, that when the fatal shot was fired by appellant the deceased Keaton had a pistol, and was making a violent attack upon appellant under circumstances which reasonably indicated an intention on his part to kill appellant, and that said pistol and the manner of its use were such as were reasonably calculated to produce such result, then the law presumed that deceased designed to murder appellant and the latter would have the right in such case to kill deceased.
What the court in the instant trial did in fact tell the jury was that if from appellant's standpoint at the time of the killing, viewed in he light of all the circumstances as they then appeared to him, the jury believed that it reasonably appeared to him that his life was in danger real or apparent, or that there was such danger, real or apparent, of serious bodily injury from an attack of deceased, appellant would have the right to slay his assailant and would be guilty of no offense; and further that if he had been informed that deceased had threatened to kill him or do serious bodily injury to him, and that at the time of the shooting, viewed from appellant's standpoint, it reasonably appeared to him that deceased had made any gesture or done any act, or both, which indicated to him that deceased was making an attack on him or attempting to execute the threat theretofore made, and this caused him to have a reasonable expectation or fear of death or serious bodily injury at the hands of deceased, then appellant had the right to act on such appearances, and if he thus shot and killed deceased under such circumstances he would not be guilty. *Page 292
In the instant case it was not admitted that deceased had a pistol, or that he made any attack, or that he was trying to kill appellant or had made any demonstration of any kind. These were sharply contested issues. Upon appellant's testimony practically alone rested the proposition that deceased even had a pistol. That such pistol if had by the deceased, was in the manner of its use calculated to cause death, was an issue made out by appellant's testimony alone and as easily solved against as in favor of the proposition. So also of the proposition that with such weapon deceased was making an attack reasonably indicating an intention on his part to kill appellant.
When appellant saw deceased and his mother, appellant's wife, at the woodpile a short time before the homicide, according to his testimony he ordered deceased to leave the premises and received the reply that deceased had come for money due him and he was not going until he got it. Appellant then went to the toilet in the yard. Coming presently into the kitchen he said that deceased was in there and when appellant said to deceased that he had told him to go away, deceased again said: "By G__d he came for that money and he wasn't going until he got it." That he then pulled out a pistol and threw it down on appellant. Appellant testified that he then drew his own pistol and began shooting at deceased. The latter backed through the kitchen, through the dining room, across the back porch and to the outer door, holding a pistol in his hand all the time. When he got to the outer screen door appellant again fired at him, and he said he saw his wife fall. Deceased then backed on out of the door, past the woodpile, going across the yard, under a fence, and down some two hundred yards from the house into a field, appellant following him and telling him to leave and deceased replying that he did not have to. Appellant testified at this point deceased picked up a stick and started at him and he shot deceased, and then without going back to where his wife fell he went on over to a neighbor's house. The only other living eyewitness to the tragedy, who lived in a near by tenant house, testified that she heard a shot and ran to her door and saw deceased falling apparently forward and saw appellant running toward him, and after he reached deceased saw him shoot two or three times and then leave. Witness put on her bonnet and ran over there and deceased was dead. She saw no stick in the hand of deceased or upon his body. Other witnesses testified that there were no trees or timber around the point where deceased fell, and that the stick found later across his body was similar to the kind of wood of which the woodpile was composed. These witnesses found the body of Mrs. Gunn, the wife of appellant, lying out in the yard, an axe handle being grasped by her right hand. As testified by the coroner and other witnesses *Page 293 there were powder burns on the head of Mrs. Gunn and on her left hand. Both Mrs. Gunn and deceased were shot in the left side of the head between the temple and the ear. Many persons searched the yard and ground between the house and the point where the body of deceased was found in the field for weapons but found none. The next morning after the killing the sheriff of the county accompanied by twenty-five or thirty men, who walked abreast and as the sheriff stated "About as close as men could walk abreast," went over the ground between the house and where the body of deceased was found, seaching for weapons but without avail. About a week after the killing appellant's brother and three other men went out and searched over the same ground and found a pistol upon their first waking over it. This group of gentlemen went at the instance of appellant's brother to make this search. The State's contention was that the axe in Mrs. Gunn's hand, the stick on the body of deceased, and the pistol found by the four men a week after the homicide, were but evidences of fabricated testimony, and the deceased had and used no pistol on said occasion. These were questions for the jury.
We have set forth the testimony above so as to make as clear as we can the proposition that the Kendall case on its facts and the law applicable, and the instant case, are as wide apart as the poles, and that in so far as it announces rules based on its facts, the Kendall case supports our contention.
We go a step further and state that a charge authorizing acquittal upon appearances of danger as viewed from the standpoint of the accused at the time, is more favorable to the defense herein than a charge based on facts which are contested in evidence, and must be found to be true by the jury when viewed by them in the light of all the testimony adduced on the trial, which latter is the necessary view point before the presumption of law contained in Article 1106, supra, could arise; at least it seems to us beyond controversy when the facts upon which the said latter presumption depends, as in this case, are based wholly upon the testimony of the accused strongly combatted by the other evidence on the trial, that a charge authorizing acquittal upon such appearances of danger to him, as seen by him at the time under the circumstances as they appeared to him, is much more favorable to the defense than a charge presenting a presumption of law dependent upon facts which must be found true by the jury from hearing of the entire testimony.
When the Kendall case was written the accused could not testify nor apprise the jury of how the actions and conduct of deceased appeared to him. Now it is different. When the Kendall case was handed down Article 743, supra, was not in the statutes. Now it is there and we think its mandates are imperative. We are unable *Page 294 to agree that anything in the Kendall case supports appellant's right to a reversal for failure to give in the charge the law of Article 1106.
Upon appellant's testimony as to the appearances of danger as they seemed to him from his view-point at the time, arose the application of the charge given by the court under which the jury were authorized, if they believed his testimony, to return a verdict of of acquittal. Upon exactly the same testimony the jury would be compelled to rely for any finding of the truth of the facts upon which could arise the presumption of law contained in Article 1106.
We do not believe any case can be found in the books where the testimony of the accused alone is relied upon to establish both issues, and in which the court fully and fairly submitted the law of the right of the accused to act in self-defense based on danger, actual or apparent, as viewed from his standpoint at the time, in which this court has ever held that it was reversible error to decline to give Article 1106, both issues being dependent upon exactly the same testimony.
Further discussing the matter, attention is called to the fact that the Kendall case, supra, was decided in 1880 and at that time the statutes of this State required the reversal of cases when errors in the charge were excepted to, without regard to the injurious effect of such errors. Nace v. State, 9 Texas Crim. App. 110; Myers v. State, 9 Texas Crim. App. 157. No cases were decided by this court upon facts appearing in the opinions in which charges were held defective for not submitting Art. 1106, after the decision in the Kendall case, supra, till we come to Jones v. State, 17 Texas Crim. App. 602. In that case three witnesses testified that deceased was following the accused with an axe at the time the latter shot, two of them testifying to assaults upon accused with the axe. This court said that the law of Art. 1106 should have been given, and we do not deem this in any way contrary to our views as herein expressed. In Pierce v. State, 21 Texas Crim. App. 540, the next case discussing the law of said article, three witnesses also testified that the injured party was attacking the accused with a knife and had made repeated blows at him before the accused drew his pistol and shot. We find nothing in this case not in consonance with our conclusions. In Cochran v. State, 28 Texas Crim. App. 422, the next case discussing said article, it appears that deceased, after threatening to kill the accused, was advancing on him with a billiard cue raised in his hand, the big end drawn back, when the accused shot. We find nothing in these facts, which were held to call for the submission of the law of Article 1106, which are contrary to our views. We next have the Ward case, 30 Texas Crim. App. 689, from whose facts it appears without dispute that deceased had a pistol and was in the act of drawing same, accompanying this action *Page 295 by a threat of his immediate purpose to use the pistol. Judge Hurt says in the opinion, referring to the article, which is now 1106, as follows:
"We understand the statute to mean, that when there is evidence showing with reasonable probability that the adversary of the accused was in the act of murder or attempting to commit murder, and a deadly weapon was used by him, then the law presumes that it was the purpose of the party using the deadly weapon to kill and murder; and the court should submit an hypothetical case to the jury, in substance, that if the jury shall believe from the evidence that the deceased was making an assault on the accused, and that he was using a deadly weapon, then the law presumes, and the jury should presume, that deceased designed to kill and murder defendant."
It further appears in the opinion that the State was basing its objection to the giving of said charge on the proposition that deceased was not using the pistol at the time, but the fallacy of this contention is demonstrated in the opinion which properly held it a case wherein said article should have been given in charge. We do not disagree in the least with this conclusion. However, at the time the opinion in the Ward case, supra, was handed down present Article 743 of our Code of Criminal Procedure read as follows:
"Whenever it appears by the record in any criminal action upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall be reversed; provided the error be excepted to at the time of the trial."
See Art. 723 C.C.P., Revised Statutes 1895. Said article was amended in 1897 so as to read as follows.
"Section 1. Be it enacted by the Legislature of the State of Texas: That Article 723, as described in the caption of this act, shall read as follows, viz:
Article 723. Whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, which error shall be excepted to at the time of the trial, or on a motion for a new trial."
The next case discussing the proposition before us, after the passage of the act above referred to, was Stanley v. State, 44 S.W. Rep., 519, the opinion being handed down February, 1898, and Judge Hurt, speaking for the court, uses the following language:
"There was no error in the court failing to charge the jury as to the presumption arising from the use of deadly weapons by the deceased, as is provided by the Penal Code of 1895. The court gave *Page 296 a charge on self-defense, embracing all that appellant could ask for on this subject. If deceased made any attack on the appellant at all, it was with a pistol; and the court instructed the jury, if deceased made an attack on the defendant, and it reasonably appered to him that his life was in danger, or he was in danger of serious bodily harm, that he would have a right to kill deceased."
This was followed and approved by Barnes v. State, 45 S.W. Rep. 495, an opinion by Judge Davidson, and in line therewith is Sargent v. State, 35 Tex.Crim. Rep., an opinion by Judge Henderson. McMichael v. State, 49 Tex.Crim. Rep., is examined. We are not advised by the opinion in that case if Article 743 was considered by the court, or if the charge given was in such condition as that the terms of said article were applicable; but we find that in said opinion which clearly demonstrates its unsoundness. It was a case somewhat similar in facts to the instant case, i.e. the accused had testified that the deceased was trying apparently to kill him with a pistol; the two men being in a dark room lighted only by a few coals in the fireplace and a match which the accused claimed deceased had lit in an effort to locate him, the accused. The learned judge delivering the opinion for this court, does so upon citation of Ward v. State, supra, Hall v. State, 43 Tex.Crim. Rep., and Scott v. State, 46 Tex.Crim. Rep., and upon the authority of these cases concluded that the trial court had erred in not giving the law of the presumption arising from the use of a deadly weapon as set out in Art. 1106. For three reasons the McMichael case is not a safe authority for the position taken by appellant in the instant case. The authorities cited therein as supporting it, do not support it. The Ward and Scott cases, cited, present facts showing beyond dispute the use of a deadly weapon by the injured party, and in the Hall case, an opinion by Judge Brooks, no facts are given. The reasoning of the judge writing the McMichael opinion, after citing the authorities above mentioned, is as follows:
"In this connection another question arises. Suppose deceased did not have a pistol, but appellant believed he did have one, and believed he saw one in his hand, would he be entitled to said charge predicated on the appearances of danger? He was evidently entitled to a charge on the appearances of danger, and the court gave him such charge; but was he entitled to a charge on the use of a deadly weapon by deceased and the presumption flowing therefrom? We think so. Because of the failure of the court to give said instructions in favor of appellant, the judgment is reversed and the cause remanded."
It is thus announced that if the accused merely believed that deceased had a pistol, even though in fact he had none, the trial court should have charged the presumption arising from the use of a *Page 297 deadly weapon. Such reasoning is fallacious and can not be followed to the conclusion announced, and is manifestly wrong and this court would not cite it as authority. Third, it nowhere appears in the opinion in the McMichael case that the court took into consideration the provisions of Article 743 C.C.P., or that the issues in the case were such as to call for its consideration.
We have found no other case on facts at all similar to those before us which support the contention of appellant. We have found no case upon whose well considered authority this court might lean for precedent whose facts are akin to those in the instant record and would be thus deprived of the solace of thinking that at least the doctrine of stare decisis supports the conclusion that the refusal to charge Article 1106 in the instant case demands a reversal. Nor, failing to find support in precedent, can we find comfort in trying to follow our own reasoning about the matter to a logical conclusion that the case should be reversed for such failure.
We would start such reasoning with the plain statutory rule staring us in the face forbidding reversals for a disregard of the nine articles affecting charges, unless it appears from the record that same was calculated to injure the rights of the accused or prevent his having a fair and impartial trial. As we understand this, unless from a consideration of the record it appears to the fair mind that by giving the charge refused, a different result might appear reasonably probable from that already attained, then for such refusal the case should not be reversed. We have stated the facts bearing on the proposition under discussion above, but as we near the end of this already long opinion we refer to them again. According to his own testimony appellant was in his kitchen when a pistol was drawn by deceased but not fired. This testimony was considered by the jury. Doubtless they reasoned that appellant dare not claim that the pistol was fired while in the kitchen or dining room, or on the porch across all of which appellant asserted that deceased backed, holding the pistol in his hand, — for such claim on the part of appellant could too easily be refuted by inspection of the premises for bullet holes, etc. Appellant testified that as deceased backed to the outside porch door, he, appellant, fired at him and saw the mother of deceased, the wife of appellant, fall, — she being outside. The testimony was also considered by the jury in connection with other disinterested testimony showing that the woman was shot in the side of the head and that her head and hand were powder burned. They doubtless reasoned that if appellant fired through the door from some place inside the house, his wife, — whose body lay at the woodpile, could not have been powder burned. Appellant said he further pursued deceased past the woodpile, down into a field some hundreds of yards but that he at no time saw a *Page 298 pistol in the hands of deceased after he passed the woodpile. Scores of disinterested witnesses searched and almost combed the ground from the house to where the body of deceased was found, but saw no pistol. About a week later, at the request of appellant's relatives, a few men went over the ground and found a pistol. This testimony was all considered by the jury and they must have concluded that deceased had no pistol. Why do we say this? For the simple reason that, had they believed that deceased had a pistol, they must have also believed that appellant shot in self-defense against danger from said pistol either real or apparent. They were told to acquit if from appellant's standpoint, viewed in the light of all the circumstances as they appeared to him at the time, he believed himself in danger of life or bodily injury at the hands of deceased. We thus reach the necessary conclusion again that the question of possession of a pistol by deceased was fully considered by the jury under the applicable charges given, and decided in the negative. On the fact of such possession of the pistol and the deadly manner of its use or attempted use, must rest the presumption contained in Article 1106, supra. Unless there be reasonable probability of the existence of the fact, there can be none of the presumption, for the latter is wholly dependent for its existence upon the former.
There has been in some cases a drifting away from the real distinction between the doctrine of self-defense based on danger, real or apparent, as viewed from the standpoint of the defendant, and the doctrine of danger as viewed from the standpoint of the jury at the time of trial in the light of the facts and circumstances as revealed by the evidence in the case. This distinction loomed large in the mind of Judge Clark when he wrote in the Kendall case, supra, and is a real and not an imaginary distinction. One whose defense is based on his own testimony almost entirely, to the effect that it seemed to him that there was danger calling for action on his part, could be seriously hurt by a charge giving prominence to Article 1106 under which the presumption of an intent to kill, maim, etc., could only arise in case the jury from their standpoint, viewed in the light of all the circumstances in the case at the time of trial, should conclude that the injured party had a weapon and was so using it as that it seemed calculated to produce death, maiming, etc. In such case the proof adduced on the trial might show conclusively that the injured party had no weapon, or that he made no attempt to use it. The law of Article 1106, supra, would thus be used to deprive the accused of his right to a charge on apparent danger, and of his right to a charge on danger real or apparent, as it appeared to him at the time of the occurrence. Surely this is plain and leads to the observation that not all the law of self-defense should be given in every case, but only that which is apt and which *Page 299 gives to the parties their rights under the facts in that particular case.
In the case made by the facts in the record before us, if the court had omitted to charge on the law of self-defense as applicable to the right of appellant to defend against danger, real or apparent, as it appeared to him at the time of the homicide, — and had charged that if, the jury believed from all the evidence before them that deceased had a pistol and was using it in a manner calculated to inflict murder, maiming, etc., they should then presume that he designed to inflict such injury and in such case they should acquit, — then indeed would there have been serious and just complaint, and we would likely have reversed the case on the ground that the law applicable had not been given. But the law applicable was given, and that which in our opinion was not applicable, was refused.
Our great respect for the legal opinion of learned counsel for appellant and our desire to be right in this decision, has led us to go over this matter many times in the light of its facts and the former opinions of this court, but each review but more firmly fixed our conclusion that the jury were given full opportunity for consideration of the only facts which might serve as the basis for any legal presumption arising under Article 1106, and having been so fully considered under the charges given presenting the law of self-defense upon danger, real or apparent, as viewed from the standpoint of the defendant at the time, the jury have rejected the truth of such contention; and in such case we find ourselves incapable of believing that the giving of the law of Article 1106 could have added to appellant's chance of acquittal. So concluding, and believing further that under Article 743, supra, our duty is plain, the motion for rehearing must be and the same is overruled.
Overruled.
ON REHEARING. May 23, 1923.