Appellant's special charge No. 2, which was refused, sets out that even though the jury believe that he "fired more than one shot which hit the deceased and killed him, yet if you further believe that when the first of said shots was fired the defendant was justifiable under the law of self-defense as given you in my main charge, and thereafter subsequent shot or shots were fired by the defendant, hitting the said deceased, and that such shooting constituted one continuous transaction impelled by the same impulse on the part of defendant, then you will acquit the defendant." He insists that our opinion failed to take into consideration the phrase "impelled by the same impulse on the part of the defendant." We did consider, but did not discuss it, The court having told the jury in paragraph 16 of the charge that if appellant believed from his standpoint at the time, in the light of all the facts and circumstances within his knowledge, believed that deceased was about to draw a pistol with which to attack him * * * he then fired at deceased, he would be justified in so firing; and would be further 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 deceased; and we were convinced that this fully and fairly presented the proposition embraced in said special charge in language plainer and more apt than is to be found in the submission of the question as to whether it was a continuous *Page 184 transaction impelled by the same impulse. Nor is appellant's contention in this regard strengthened by his argument that paragraphs 17 and 18 of the charge submitted an abandonment of the difficulty. The court told the jury in paragraph 16 that if appellant was justified in firing the first shot, he had the right to continue to shoot as long as it seemed to him reasonably necessary. The special charge under discussion stated in substance that if appellant was justified in the first shot, and his subsequent shots were a continuous transaction, impelled by the same impulse, he would be justified, and refers to abandonment of the difficulty no more than paragraph 16 of the charge. We are not in accord with appellant's contention that paragraph 16 of the charge was an abstract instruction such as is criticized in Talbert v. State, 8 Texas Crim. App. 316, but are of opinion that it was a concrete statement of the law of this case.
We have carefully gone over the charge in the light of appellant's insistence in the various complaints appearing in his motion, but do not believe it as a whole subject to the criticisms made. Paragraph 14 thereof is quoted in our opinion and is believed to be a correct announcement of the law. Paragraph 17 relates to the abandonment of the difficulty, and was not on the same phase of the case as paragraph 14, and we do not think the statements occurring therein can be construed as hurtfully contradicted by any other parts of the charge.
Appellant insists that we were in error in stating that "both shots * * * entered from the back." If we should so change this as to state that "According to the State's theory both shots * * * entered from the back," in response to appellant's insistence, this would not affect any legal conclusion reached by us.
We see no reason for changing our opinion as to the Coker case referred to therein. No man's right to act in self-defense can be limited to his knowledge of danger, but must always rest on what reasonably appears to him from his standpoint at the time. We see no distinction in his attitude before the law, whether the question be his right so to act when the danger impends or when the danger passes.
The motion for rehearing will be overruled.
Overruled. *Page 185