In was the State's contention, supported by evidence, that appellant and his son (Edgar R. Anderson) began the difficulty by beating deceased over the head with guns before he got out of his automobile; that as he ran from them appellant fired at him with a shot gun, wounding deceased in the thigh; that deceased ran behind the store, but returned immediately with a pistol in his hand and fired at appellant, wounding him in the leg, and that appellant's son then shot deceased through the head with a rifle. It was appellant's contention that deceased was the aggressor and drew a pistol and fired first, wounding appellant in the leg; that appellant's son then fired at deceased with the shot gun, striking him in the thigh, and later took the rifle from appellant and then with it the son shot deceased through the head. There was no evidence that the shot gun wound was fatal, whether fired by appellant or his son, but all the evidence shows that it was the shot through the head fired by appellant's son *Page 593 which resulted in death. Appellant denied firing either with the shot gun or rifle, and the son admitted on the trial that he fired both shots. It thus appears both from the State's evidence and that introduced by appellant that it was the son who actually did the killing. We make this condensed statement of the facts, believing it has material bearing on the exceptions to the court's charge re-urged by appellant as presenting such error as calls for a reversal.
The paragraphs of the charge as found in the transcript are not numbered but for convenience in discussing it we have designated the paragraphs by numbers.
The charge from the first to eighth paragraphs, inclusive, contains the definition of murder, malice, etc., and the submission to the jury of murder with and without malice upon the theory of whether the killing was done by appellant himself. The ninth paragraph is a general and correct definition of "principals" not necessary to be set out here. The tenth and eleventh paragraphs are as follows:
(10) "If you believe from the evidence, beyond a reasonable doubt, that Edgar Anderson on the date and day alleged in the indictment, killed the said U. E. Byers and further believe the defendant, C. E. Anderson was present and knowing the unlawful intent, if any, on the part of the said Edgar Anderson and at said time and prior to the said killing, did some act or encouraged by words or gestures the said Edgar Anderson in killing the said deceased he would be guilty as a principal."
(11) "You are further charged that the mere presence of the said C. E. Anderson would not make him a principal and though you find that he was present at the time of the killing if you fail to find that he spoke some word or did some act, or acts, or make some gesture to the said Edgar Anderson, or if you havea reasonable doubt thereof, you should not find him to be a principal, and find him not guilty and so say by your verdict."
It will be observed that in the eleventh paragraph, advising the jury under what circumstances appellant would not be a principal, the doctrine of "reasonable doubt" is applied directly to such defensive issue. The twelfth and thirteenth paragraphs are general statements of the law of self-defense. The fourteenth paragraph is an application of the law of self-defense, telling the jury in substance that if appellant killed deceased and that the latter had made or was about to make an attack on either him or his son which caused him to have apprehension for his own or his son's safety they should acquit appellant. *Page 594 The fifteenth paragraph of the charge is as follows: (15) "If you fail to find, beyond a reasonable doubt, that the defendant killed U. E. Byers, but further find, beyond a reasonable doubt, from the testimony that on the day and date alleged said Edgar Anderson killed the deceased you cannot convict the defendant unless you find him guilty as principal offender as that charge on principals is herein defined to you, and then you could not find defendant guilty as such principal if you believe that on said date said Edgar Anderson killed the deceased that he the said Edgar Anderson believed at the time of so doing deceased had made an attack or was about to make an attack on him or his father, C. E. Anderson, which, from the manner and character of it and the relative strength of the parties and his knowledge of the character and disposition of the deceased caused him to have a reasonable expectation or fear of death or serious bodily injury to himself or to his father, C. E. Anderson, and acting under such reasonable expectation or fear of death or of serious bodily injury to himself, or for the safety of his father, said Edgar Anderson killed the deceased, you will acquit the defendant."
It is to the above-quoted paragraph of the court's instructions that appellant directed numerous exceptions. (a) That it shifted the burden of proof from the State to appellant in that the burden was not on appellant to prove that his son killed deceased, but that the burden was on the State to prove either that appellant did the killing, or that appellant was a principal if the killing was done by his son. (b) That the court "has not instructed the jury in connection therewith that if they believe from the evidence or have a reasonable doubt thereof, that the said Edgar Anderson, son of the defendant herein, killed the deceased, or if they believe from the evidence or have a reasonable doubt to the effect that C. E. Anderson, did not aid by acts or encourage by words said Edgar Anderson in killing the deceased, then, they should acquit the defendant, irrespective of whether or not Edgar Anderson was justifiable in killing the deceased under the circumstances." (c) That the law of principals was not sufficiently applied. (d) That said instruction was a comment by the court on the weight of the evidence.
The expression in the beginning of the instruction, viz: — "If you fail to find, beyond a reasonable doubt, that the defendant killed" deceased, is not to be commended, but under the facts as related in the original opinion, and concisely re-stated *Page 595 herein, it could in no way have resulted in injury to appellant, because under the undisputed facts appellant did not fire the shot that resulted in deceased's death. We do not believe the charge shifted the burden to appellant, and requires him to prove beyond a reasonable doubt, or to prove at all, that his son killed deceased. The reasonable doubt upon the question of whether appellant acted as a principal with his son in the killing had been explicitly presented in paragraph eleven heretofore set out. Neither can we regard paragraph fifteen as containing any expression from the court which could be construed as a comment on the weight of the evidence. We believe the paragraph of the charge complained of, when construed in connection with the remainder of the charge means, and conveyed to the jury the information, that if they believed appellant did not kill deceased, but did believe from the evidence beyond a reasonable doubt that appellant's son killed him, they could not convict appellant, unless they found him guilty as a principal under the law upon that subject as theretofore given them, in paragraphs ten and eleven, and that even then they could not find him guilty as a principal if they believed appellant's son killed deceased in defense of either himself or appellant.
We have re-examined appellant's original brief in connection with his motion for rehearing, and the authorities cited in both, among them being: Regittano v. State, 96 Tex. Crim. 477,257 S.W. 906; Ford v. State, 105 Tex. Crim. 44,285 S.W. 614; House v. State, 76 S.W.2d 511. Many other cases will be found cited in opinions in the cases mentioned. We are in accord with the holding that a charge should not be so worded as to shift the burden of proof to a defendant, and that ordinarily the question of reasonable doubt should be given in connection with an affirmative defensive charge, and that the failure to do so raises a serious question when such failure is pointedly called to the trial court's attention. It will be observed that the question of reasonable doubt is not incorporated in the charge giving the son of appellant the right to act in defense of himself or appellant, but no specific objection is found pointing out to the trial court such omission. See Art. 658, C. C. P.
We have endeavored to appraise the charge of the court in its entirety in view of the evidence, as we understand the record, and giving effect to Art. 666, C. C. P., we do not believe that any criticism of the charge goes to the extent of showing *Page 596 that anything therein complained of as error was calculated to injure the rights of appellant.
The motion for rehearing is overruled.
Overruled.