Conviction in District Court of Ellis County of manslaughter, punishment fixed at four years in the penitentiary.
We find in the record no bills of exception to the rejection or acceptance of testimony. Appellant's principal complaint is directed at the charge of the court.
We treat the various bills in the order in which they appear in appellant's brief. He asked special charge No. 2 to the effect that if he fired more than one shot and the jury believed he was justified in firing the first one, and it was a continuous transaction, they should acquit. This was correctly refused. It would need no argument to make clear the proposition that one unlawfully attacked may defend himself and need not retreat, and may continue his defensive acts as long as the danger appears imminent, but if the assailant flees or desists to the point where the danger passes and the accused is aware of this fact, it can not be said to be legal that he continue his violence to or attacks upon his antagonist so long as he pleases or until the death of his assailant, simply on the plea that the transaction was continuous. The principle evidently aimed at in this special charge appears fully covered by the main charge in paragraph sixteen wherein the jury were told, in substance, that if appellant was justified in firing the first shot, he would also be justified in continuing to fire so long as it reasonably appeared to him that his life or person was in danger at the hands of the deceased.
Appellant next assails paragraph seventeen of the charge, asserting that his right of self-defense is there made to rest solely on the fact of "an attempt to draw a pistol" on the part of deceased. Charges can not be tested solely by one paragraph, but all the charge must be looked to and taken together in determining the correctness of any particular part; and in paragraph fourteen of the charge we find the following:
"Now if you believe from the evidence that at the time of the homicide in question, E. M. Hines made some demonstration with his hand as if to draw a pistol, and from his acts, if any, or from his acts coupled with his words at the time, and just prior thereto, if any, it reasonably appeared to the defendant as *Page 181 viewed from his standpoint at the time, in the light of all the circumstances existing at the time that the said E. M. Hines was about to attack him, the defendant, and that there was created in the mind of the defendant a reasonable expectation or fear of death or serious bodily injury at the hands of the said Hines, and that acting under such reasonable apprehension, if he did, he shot and killed the said Hines, or if you have a reasonable doubt that such are the facts then you will find the defendant not guilty."
This covers all the acts and conduct of deceased and puts appellant's right to act in self-defense upon the basis of his reasonable expectation (or belief) or fear of death or serious bodily injury at the hands of deceased.
It was in testimony that appellant shot at the deceased while the latter was fleeing, or at least retreating, so that it became necessary for the trial court to submit the law of retreat, and as a matter of course, his duty was to present both sides of the law of this issue. It would seem fair to tell the jury that even if appellant shot at deceased while the latter was retreating, still if appellant believed from the circumstances that deceased had not withdrawn from the difficulty, but was merely seeking a vantage ground from which to renew the attack or threatened attack — his right to protect himself and continue to shoot would not be taken away by such retreat. McMahon v. State, 46 Tex.Crim. Rep.; St. Clair v. State, 49 Tex.Crim. Rep.. We do not grasp appellant's objection to this part of the charge. One who continues alleged efforts to defend against or repel the attacks of another, whose acts in connection with the alleged attack are construed to be an abandonment of the difficulty cannot be held bound to know what the purpose and intent of his adversary is, in his apparent cessation of hostility; and if it reasonably appeared to him that his adversary had in good faith abandoned the difficulty, he could not further pursue and shoot said adversary. We are not in accord with that part of the opinion of this court in Coker v. State, 59 Tex. Crim. 241,128 S.W. 138, which holds it error to tell the jury in the charge that if "it reasonably appear to defendant that he (referring to deceased) had abandoned same." To the extent of holding that said statement is unsound, the opinion in that case is overruled. We think the court's charge in the instant case in this particular is correct.
No witness testified or could testify as to which of the three shots fired by appellant was the "first fatal shot," and we think *Page 182 the giving of any instruction attempting to direct the attention of the jury to an acquittal or to conviction, predicated on such "first fatal shot," would be on the weight of the evidence. The only testimony really before the jury on the point of the fatality of the shots or any of them, was to the effect that both shots which went through the body of deceased, entered from the back, and that the one through the stomach would likely have produced death, but that the one piercing the large artery of the heart did cause almost instant death.
The charge of the court must have been corrected after appellant reserved the exceptions thereto appearing in this record, because an exception appears based on the failure of the court to apply the doctrine of reasonable doubt as between the degrees of homicide, but the charge of the court in paragraph twelve and also in paragraph eight presents a correct application of this principle.
We see no reason for the court specifically attempting to apply the reasonable doubt as between manslaughter and self-defense. The law of reasonable doubt was stated in connection with every paragraph of the charge applying the law to the facts in the charge presenting the law of murder, of manslaughter, and also of self-defense.
The use of the words "just prior thereto" in paragraph fourteen of the charge wherein the court is defining those things which might create reasonable expectation or fear of death in the mind of the appellant, seems to us to in no sense restrict appellant's right of self-defense under the facts in this case. There was no claim of threats, former difficulties, prior grudges, etc., which might be looked to. Appellant's contention is that the language used in same kept the jury from taking into consideration the fact that some months before the homicide deceased showed appellant a pistol. Appellant testified that at the beginning of this fatal difficulty deceased put his hand down, or back in some way not accurately stated, and said "I have got as good or better gun as you," and that he, appellant, then shot deceased three times. We are not in accord with the proposition that the charge referred to deprived the jury of their right to consider the proposition of appellant owning a pistol. In fact no pistol was found on or around the body of deceased, and it was in testimony that the pistol belonging to deceased was down at his farm at the time the shooting occurred in the city of Waxahachie.
In view of the verdict finding appellant guilty only of manslaughter, *Page 183 under numerous holdings of this court the complaints of errors in the charge defining and in reference to manslaughter, but not impinging on appellant's right of self-defense, will not be discussed or reviewed.
Considering the qualification of the court and the favorable character of the verdict, we do not think the bill of exceptions complaining of the argument of the attorney assisting the State in the prosecution, of that harmful character which should call for a reversal of this case. The State made no effort to prove bad character on the part of the accused, and the argument referred to appears to be merely, in substance, a statement that if appellant desired to present that issue he should have done so by the testimony of witnesses who were present, this being, according to the court's view, in reply to argument of appellant's counsel.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.