Appellant moves for rehearing on the sole ground that we were wrong in holding that the trial court did not err in refusing his special charge number three. The charge in question follows:
"You are instructed that a man has the right to prohibit another from entering such man's home, and after such prohibition an entry or attempt at entry by such other would be unlawful; and the owner of such home would have the right to resist such entry or attempt at entry by such means as may seem to be necessary to prevent such entry viewed from his standpoint alone at the time. Now if you believe from the evidence that at the time of the alleged killing as set out in the indictment deceased was in the act of entering the home of the defendant, unlawfully as hereinbefore set out; and it became necessary viewed from the defendant's standpoint alone at the time to prevent such unlawful entry, if any, or attempt at entry, the defendant shot and killed the deceased, you will acquit the defendant and say by your verdict not guilty."
It will be noted that the charge wholly ignores the provision of subdivision 4 of Art. 1227, P. C., which is operative where defense of property or invasion of the home is involved, said subdivision reading:
"Every other effort in his power must have been made by the possessor to repel the agression before he will be justified in killing." *Page 96
A charge similar to that here requested was condemned in Wells v. State, 63 Tex.Crim. Rep., 141 S.W. 96 and Richardson v. State, 91 Tex.Crim. Rep., 239 S.W. 218. The facts do not place deceased in the position of a trespasser or threatened invader of the home as those terms are generally understood. He was working for appellant at the time of the homicide, and appears to have had free access to the house, and had formerly stayed there while working on the place. As was said in Richardson's case (supra):
"The facts do not impress us as presenting the issue that the homicide was in defense of property, but the true issue was whether it was in defense of appellant's person. If the issue existed, we think the special charges requested were not pertinent to present it. They ignored the essential elements of the law of homicide in defense of property, namely, that of resorting to other means before taking life."
The court's instruction on defense of the person was comprehensive, giving appellant the right to defend against an attack which deceased was making on appellant, "or appeared to be about to make."
It is true the expression is found in many cases to the effect that if the evidence raises the issue of defense of the home or habitation as well as defense of the person, both issues should be submitted to the jury, but the provisions of Art. 666, C. C. P., should not be ignored which directs that if any requirements regarding instructions to the jury have been disregarded "the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant." A careful re-examination of the evidence leads us to conclude that if an instruction on defense of the home would have been appropriate, that the failure to give it was not under the facts and the instructions given calculated in any way to injure appellant's rights.
The motion for rehearing is overruled.
Overruled.
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.