Appellant was convicted of an assault with intent to murder, and his punishment assessed at three years confinement in the penitentiary; hence this appeal.
The indictment charges that the assault with intent to murder was committed by appellant in and upon Isom Chandler and in and upon John Chandler. Was the indictment duplicitous? Under the authorities it was not. Rucker v. State, 7 Texas Crim. App., 549; Nite v. State, 54 S.W. Rep., 763; 1 Bishop Crim. Law, sec. 437; vol. 2, sec. 60. As far as we are advised there is but one case which holds that an indictment which charges a homicide of two or more persons by the same act or volition to be bad, as being duplicitous, to wit, People v. Alibez, 49 Cal. 452. That was a case in which appellant was charged with poisoning three people. However, it does not appear that the poison was administered by the same act or volition, and the case appears to have been disposed of on the California statute, which requires that the indictment contain but one offense.
It is further contended that while an assault with intent to murder can be charged to have been committed on two persons, that this must be by the same act; and when it appears from the proof that it was different acts, though in the same transaction, there is such a variance as will defeat the prosecution. In support of this contention appellant cites us to a number of authorities, among others Hurst v. State, 86 Ala. 604; Gunter v. State,111 Ala. 23, 56 Am. St. Rep., 1; State v. Emery, 68 Vt. 109. We have examined said cases, and they do not, in our opinion, support appellant's contention. They do support the proposition that where a defendant has been convicted or acquitted he can not again be put in jeopardy for the same act or volition. But here there is no question of jeopardy. Of course, if proof had shown that by the same shot appellant had wounded both John and Isom Chandler, or had by the same act attempted to shoot both, there would be no question of variance. But it does not so appear. The facts show an indiscriminate firing on both sides; and the evidence is rather pointed on the part of the State that appellant fired the first shot at John Chandler, whereas appellant's proof, on the contrary, shows that John Chandler fired the first shot at appellant, after which the firing became indiscriminate on the part of Cox and his companions on the one side and the Chandlers on the other side.
On this state of case the court instructed the jury to the effect that, if they believed appellant fired the first shot at either John Chandler or *Page 312 Isom Chandler, or at both, to convict him. This appellant claims was error, because he contends that the averment that both were shot at is essentially descriptive matter in the indictment, and must be proved as laid. In our opinion this contention is not correct. No more than it would be correct to say that, because the pleader in a case of cattle theft had charged the theft of two or more head of cattle, and had failed to make proof of the theft of all the cattle charged, that there was a fatal variance. An assault on one person, or killing of one person, is a complete offense, and any essential description as to any person alleged to have been assaulted or killed must be proved as laid; but it by no means follows that because an assault is alleged to have been committed on two persons, or two persons are alleged to have been slain, that therefore, before a conviction could be had, both assaults, or both homicides must be proven as alleged. The doctrine contended for by appellant was announced in State v. McClintock, 8 Iowa., 203. But according to Mr. Bishop this is not the correct view. He says: "In reason an assault on A and B is an assault both on A and likewise on B; and when it is proved as to one a complete offense appears equally in the evidence and in the allegation." 2 Bish. Crim. Proc., sec. 60, and see vol. 1, sec. 437. This doctrine is illustrated in Commonwealth v. O'Brien,107 Mass. 208. There it was said: "It is enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified, although he is not shown to have been guilty of all that is charged against him." This, in our opinion, is in accordance with sound legal principle. The court, therefore, did not err in instructing the jury as was done. However, when it was developed on the proof that appellant did not commit the assault on the two parties named by the same act, but committed distinct and separate assaults on said parties, if appellant had made a timely motion requiring the State to elect for which assault it would prosecute, the court ought to have required such election. But that question was not made here.
Appellant excepted to the action of the court admitting the testimony of Mrs. Bell Chandler, to the effect that during the progress of the difficulty she started out the backdoor and through the cornfield after the doctor; and that appellant and the parties with him, to wit, Cox, Byers and Brown, shot at her, and she returned to the house; that there was a lull in the firing, and she went out on the gallery and sat down. Zeke Walker came up and was talking to her, and one of the Cox party shot her in the leg. Appellant's objection to this testimony was because it was some time after the assault on John Chandler and Isom Chandler had ceased; that the firing had stopped, and she had gone out on the gallery; and that this was no part of the res gestæ of the transaction. It appears from the record that after the firing began, some 100 or more shots were fired between the parties; and *Page 313 that the firing continued for some time. In our opinion it was a continuous transaction, and all that occurred there was a part of the res gestæ and admissible as tending to show the animus actuating appellant and those with him.
Appellant excepted to various portions of the court's charge. But we will only treat such as we deem erroneous. It is complained that the court should not have given the following charge: "Where a party may believe himself to be unlawfully attacked, or about to be unlawfully attacked, he is justified in using all the force which may appear to him or them to be reasonably necessary, as viewed from their standpoint, to protect him or themselves, but no more. And where a party uses a greater amount of force than is reasonably necessary, the party using such greater force himself becomes the aggressor, and where a party by the use of such greater force shoots, or shoots at another with a gun within carrying distance, with intent to kill, then he can not under such circumstances avail himself of the shield of self-defense, but would be guilty of murder or assault with intent to murder or aggravated assault, according as the jury may find and determine from the evidence, being guided by the law which I give you in this charge." The contention here is that the question of excessive force was not in the case; that the real and only issue was who began the assault, both parties using deadly weapons. This accords with our view of the case. Under the circumstances, as we view them, if appellant Scott and those with him made the first hostile demonstration, or began the assault, they are the guilty parties. If, on the other hand, prosecutor John Chandler and those with him, to wit, Isom Chandler and Charley Lee, made the first hostile demonstration and began the difficulty, they are responsible. Both parties used guns, which were evidently deadly weapons, from the very beginning, and the question of excessive force is not in the case. We are not prepared to say, this issue not being in the case, that a charge thereon might not have injuriously affected appellant. The jury may have considered that, in the opinion of the court, there was testimony somewhere, from some of the witnesses, showing that appellant used more force than was really necessary, although he might have been authorized to use some force for his protection. If indeed he was authorized to use any force, in our opinion he was authorized to use all the force which the evidence shows he did use.
It is also complained that the court erred in failing to instruct the jury in accordance with article 676, Penal Code, that is, "When a homicide takes place to prevent murder, if the weapons used or means used by the party attempting to commit such murder are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." From appellant's standpoint, and according to the theory developed by his testimony, *Page 314 he and those with him were first assaulted by the Chandlers and Lee. Such assault was made upon them with guns. The firing began at a distance of about seventy-five yards. If their theory is true, the weapons or means used by their adversaries were such as were calculated to produce death. All the authorities hold that under such a state of case the court should have instructed the jury in accordance with the provisions of said statute. If under such instruction the jury had determined as a question of fact that the first assault was made by the Chandlers on appellant and those with him, and that it was made with deadly weapons, under circumstances showing intention to take life, the law presumes that such was their intention. As was said in Kendall v. State, "The fiat on the law in this respect is inexorable, and binding upon juries as well as courts, that under such a state of facts there shall be but one presumption, and that is that the person slain designed to inflict the injury. This presumption is often of material importance to the rights of a prisoner on trial for homicide, and who rests his defense upon the ground that the homicide was justifiable, in the necessary defense of his own person or the person of another; and in a proper case the jury must be informed of the principle as a part of the law applicable to the case." And see Jones v. State, 17 Texas Crim. App., 402; and Cochran v. State, 28 Texas Crim. App., 422. From appellant's standpoint, and those with him, they were apprehensive of an attack by the Chandlers as they passed his house on the way from Nacogdoches to their home, and there is some testimony in the record showing a threat by the Chandlers to that effect. Before they passed the house they discussed the matter of a probable attack and scattered along the road in single file and were unquestionably on the lookout. It is not controverted that the firing began as soon as Cox, who was in front, approached the front of the house; and it began from both sides. Appellant's witnesses say that the difficulty was precipitated by the Chandlers firing on them, whereas the Chandlers and those with them say it was precipitated by appellant and those with him firing at them. Unquestionably if appellant's theory is correct, in connection with the charge on self-defense, the court should have also instructed the jury with reference to an assault on them of a deadly character.
There is also some criticism of the court's charge in connection with self-defense, in that the acts and conduct of Charley Lee were eliminated. We believe the testimony is uncontroverted that Lee participated in the difficulty, and appellant had the same right to defend against his assault as against the others, and he should have been included in the charge.
For the errors discussed the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 315