I cannot agree to the affirmance of this judgment. The opinion of my brethren recites facts from the brief of appellant's counsel bearing upon the question of self-defense from the standpoint of appellant's legal right to defend *Page 462 Moseley against the attack of deceased, Yoe. An inspection of the statement of facts does show that appellant's counsel have rather understated than overrated favorably to appellant the evidence on this question. There is sufficient testimony stated in the opinion, as taken from appellant's brief, to raise the issue clearly that Yoe was the aggressor on Moseley; and further that Yoe was the originator of practically all the troubles that led up to the homicide. If self-defense was in this case at all, so far as appellant was concerned it was in the defense of Moseley and not of himself. If Yoe was the attacking party and brought about the difficulty which ended in the death of Moseley and himself, then in law appellant would have the legal right to defend Moseley's life; and under the testimony this proposition is presented from two standpoints, (1) that defendant may have been present and saw Yoe precipitate the difficulty and fire the first shot, and continue firing; and (2) if he was not present at the difficulty, and saw Yoe shooting at Moseley and believing that Yoe was the aggressor and killing appellant's friend Moseley, he had the right to interfere; and his ground of self-defense would be the same as if the facts were true that Yoe was the attacking party. This has always been the law in Texas, and nowhere in our decisions has it been more tersely and more cogently placed than in the opinion by Judge Clark in Guffee v. State, 8 Texas Crim. App., 187. On this phase of the testimony this case, in my judgment, is brought clearly and unequivocally under the rules laid down in the Guffee case, where one party interferes in the defense of another. Therefore I believe that the charge asked by appellant should have been given. The fact that the jury may not have believed this testimony does not justify a court in refusing to submit the issue raised by the testimony. Nor is this court authorized to ignore the rights of an accused where issues are presented, although they might not believe the testimony suggesting such issues. A party accused of crime is entitled to have the law submitting each issue favorable to his side of the case. No trial can be said to be fair and impartial that omits a charge submitting the issues to the jury which would authorize the jury to acquit, or to minimize the punishment if they believed the theory of guilt.
I further believe that the judgment should be reversed on account of the statements made by the deputy sheriff Stoudenmeir to the eight jurors in regard to the difficulties between the witness Biles and Dunnaway. This occurred in the absence of defendant and his counsel, while the officer had the jury out of the court. This officer went into a detailed statement of the previous troubles and statements between Dunnaway and Biles, as well as the difficulty itself, in which Dunnaway severely beat up Biles with a pistol and placed him in jail. No court would for a moment have entertained the idea of admitting this as testimony to be considered by the jury. Yet it was all before them through this deputy sheriff. I therefore believe that this judgment should be reversed and not affirmed. *Page 463
ON REHEARING. February 28, 1906.