Appellant was convicted of murder with the death penalty assessed.
There is no necessity of reciting the testimony of the several witnesses. However, it was clearly sufficient to show, and authorize the jury to find that shortly before the night of July 8, 1916, John Davis, a brother of appellant, and Charley House had stolen a large number — fifty-seven — watermelons out of the field of Frank Wehmeyer, and hid them in the bushes and grape vines in Mr. Buck's hay field. That Mr. Wehmeyer had discovered that his melons had been stolen, and after searching found them where they were hidden, and thereby recovered their possession; that he then procured the assistance of several other persons, and together they went to Mr. Buck's field where the thieves had secreted the melons on Saturday night to apprehend the thieves when they would come to regain and remove the melons. They were armed, but not for the purpose of killing the thieves, or any of them, but to catch them. They remained near where the melons were until about 2 or 2:30 o'clock that night. The moon shone until nearly that time but had gone down and it was dark thereafter. After it got dark at said hour of about 2:30 o'clock in the morning, appellant with his said brother and the other thief and another party together went to get and haul away the melons. They went in a two-seated hack. They had sacks along with them to get the melons and carry them to the hack. When they got near the place they all got out, hitched their team, and with the sacks went to get the melons. Appellant *Page 452 shortly before this had procured his gun and took that along. When they got out of the hack he took this gun with him to get the melons. He with his companions were discovered by deceased and his associates going to get the melons, and just as appellant reached the melons and stooped down to begin putting some of them in a sack, the deceased called to him and the others two or three times to "hold up, that they had stolen the melons but had not gotten away with them, and to hold up, we got you." Deceased and two of his companions were at this time very near to appellant, the testimony showing that he was within six to ten feet of him. Appellant replied, "Got hell," and immediately shot and killed deceased. That when he fired the first shot which killed deceased he and the others ran. Then deceased's companions repeatedly shot, but not at first to hit or kill appellant or any of his companions. They all escaped at the time. Appellant was so close to deceased when he shot and killed him that deceased's clothes were powder burned. Appellant knew before he got out of the hack and took his gun and sack along with him to get the melons that they had been stolen, and with this knowledge he went to get them, and was in the act of putting some of them in a sack to carry away when he was so hailed by deceased.
Our statute (art. 1105, P.C.) provides that homicide is permitted by law when inflicted for the purpose of preventing the offense of theft at night. If when the killing takes place (1) it reasonably appears by the acts or words coupled with the acts of the person killed that it was his purpose and intent to commit the theft; (2) while the person killed was in the act of committing the offense of theft, or after some act done by him showing evidently an intent to commit such offense; (8) and the killing is justifiable while the thief is at the place of the attempted theft, or within gunshot thereof. So that if deceased had killed appellant under the circumstances he unquestionably would have been justified in the killing. Under this statute the deceased was clearly within the law in attempting to apprehend the thieves, and in hailing them. Even if he or any of his companions had first shot, or shot at appellant, that would give him no right to kill deceased, and his claim of self-defense would not avail him. For if an armed thief at night caught in the very act of theft could defend on the ground of self-defense because the owner hailed him, or even shot at him, it would be in direct conflict with and nullify this statute.
The court, however, submitted self-defense in his favor on his testimony to the effect that he was shot at first, to this effect, that if the deceased, or the others acting with him at the time of such shooting, first shot at the defendant with intention to kill him, or inflict upon him serious bodily injury, then he had the right to shoot the deceased, and he would not be required to retreat in order to void the necessity or apparent necessity of shooting the deceased, and if the jury so find they will acquit him; and further, in passing upon this matter of *Page 453 self-defense, the jury must do so from the standpoint of defendant as it appeared to him at the time.
Appellant in the trial court, before the trial was concluded, made no exception whatever to the court's charge, and asked no special charge at all. He now contends that the court erred in not charging self-defense in his behalf on apparent danger. Even if we could now consider such question, we think the evidence did not raise, and the court did not err in failing to charge on any such issue. He charged on self-defense from the only standpoint which could be contended was raised by the testimony.
After the trial he contended that the court erred in not charging the law of manslaughter. Even if the evidence did raise such an issue, the court did not err in failing to submit a charge on that subject, because he did not at the time except to the court's charge because of such failure, nor ask any charge on the subject, and under the circumstances of this case no reversible error is shown.
The evidence was amply sufficient to sustain the verdict.
The judgment will, therefore, be affirmed.
Affirmed.
ON REHEARING. June 27, 1917.