Appellant has filed a motion for rehearing upon various grounds, to only one of which we will advert.
Appellant armed with a rifle went to the field where deceased was at work, deceased being unarmed at the time. Appellant claims that after discussing some differences between them deceased seized his rifle and undertook, as he (appellant) believed to get possession of it *Page 155 with the purpose of shooting appellant with it. Applying the law of self-defense the trial judge gave the following charge.
"If from the evidence you believe the defendant killed the said A. Wetz, but further believe that at the time of so doing the deceased had made an attack on him, which, from the manner and character of it and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him."
It is the contention of appellant that this charge was too restrictive of his rights and did not present his defensive theory pertinently to the jury; that no attack in the ordinary sense had been made upon him by deceased, but that he had a right to kill because appellant believed deceased was about to disarm appellant and kill him with his own gun. We are unable to agree with the contention that the charge quoted does not sufficiently present the defensive theory. If it appeared to appellant that deceased was simply undertaking to disarm him in order to prevent appellant from shooting deceased then unquestionably appellant had no right to kill. If it appeared to appellant that deceased was undertaking to disarm him with the ultimate purpose of killing appellant with his own gun there is no question but that an attack had already commenced, and it occurs to us that the court pertinently told the jury, that if "from the manner and character of it and the relative strength of the parties and the defendant's knowledge of the character and disposition of deceased" it caused appellant to have a reasonable expectation or fear of death or serious bodily injury, and he killed deceased under such circumstances he should be acquitted. The jury doubtless understood the issue and could not have been misled by the charge of the court to the detriment of appellant. Appellant (who was the only eyewitness) testified that deceased was undertaking, as he (appellant) thought to disarm him, and that appellant believed if deceased was successful in this he would use the gun to kill him. We have not been able to bring our minds in accord with the proposition urged by appellant in his argument on rehearing that the facts thus stated did not raise the issue of an actual attack, but that appellant was acting upon the appearance of danger. According to his testimony the attack had already commenced and if the manner and the character of it was such, considering the relative strength of the parties, that it reasonably appeared to appellant that the ultimate purpose of the attack was to disarm and kill him, his right of self-defense was complete and the jury were so instructed.
Believing that our former disposition of the case was the proper one, the motion for rehearing is overruled.
Overruled. *Page 156