Appellant was convicted of assault with intent to murder, his punishment being assessed at two years confinement in the penitentiary.
All the issues are directly in conflict, viewed from the different standpoints of the evidence. Briefly stated, omitting details, the evidence shows that the defendant and two little nephews entered the restaurant belonging to the alleged assaulting party, Chasteen, and were taking lunch. A wordy altercation came up between appellant and Chasteen in which Chasteen throws the blame upon appellant and appellant throws the blame upon Chasteen. The evidence on this phase of it is sharply in conflict. It is deemed unnecessary to go into a detailed statement of it. The State's evidence is to the effect that appellant left the restaurant in an angry mood, informing Chasteen *Page 527 that he would return. Chasteen understood this to mean that there would be trouble on his return, and so thinking armed himself with a six-shooter and a shotgun. Appellant did return, and went away again. The State's testimony is to the effect that he was armed at the time he returned with a gun, but this is flatly denied by appellant. Appellant returned the second time; this time he was armed, and about this there seems to be no controversy. When he returned he found Butler, the constable, had also found his way to the restaurant it seems upon the call of Chasteen, and was in the back part of the restaurant with Chasteen. The place where these parties were located was screened off from the other part of the restaurant by means of curtains made of a thin domestic or "cheese cloth." These curtains "screened" off the kitchen. Chasteen was in the kitchen attending to culinary matters when appellant entered the restaurant. Appellant says he purchased the gun for some boy relative whom he had promised to give a gun, and entered the restaurant with no purpose of raising any trouble, but to try to make friends with Chasteen, but when he entered Butler rapped on the counter and came away from where Chasteen was as if to go out of the door of the restaurant. After reaching the south end of the counter, Chasteen being at the north end and behind the curtains, Butler called appellant's name, "Fount," and then holloed back to Chasteen, "Orren, shoot him." That immediately Chasteen did shoot him, and he was shot in various places, and his gun went off at the time, which he says was accidental. A load of shot was found in the counter below the top of it. Appellant denies shooting at Chasteen, and says he did not know how it occurred that his gun fired; both barrels of his gun were fired. Chasteen says that appellant shot at him first through the curtain, striking him in the shoulder with two or three shot. Small shot were used by both parties. Chasteen admits firing twice. The witnesses say there were four of five shots fired during the trouble. The evidence goes strongly to show there were no shot that passed through the curtain; but one witness says he thought he discovered where scattering shot had gone through. The testimony, we think, fairly shows that the shot did not go through the curtain. Be that as it may, there were four, possibly five shots fired.
Under the above statement if appellant returned to the restaurant for the purpose of shooting Chasteen and did shoot at him before Chasteen shot this presents the issue of assault with intent to murder in view of what had occurred previously. If he returned and did nothing to bring on the difficulty, and Chasteen shot and appellant's gun went off accidentally, he would not be guilty of any assault. If Chasteen fired first, as testified by appellant, and appellant's gun did not go off accidentally, but he fired it at Chasteen, there would be clearly the issue of self-defense under the facts. Appellant had the right to go to restaurant and talk with Chasteen; he had the right to go to the restaurant unless he did so for the purpose of raising the trouble and did raise it upon reaching there. Under the testimony, so far as *Page 528 appellant's side of it is concerned, two issues were raised, first, that his gun went off accidentally when Chasteen shot him. Under his evidence Chasteen fired the first shot. Second, if appellant's gun did not go off accidentally, as claimed by him, but was fired intentionally after being shot at by Chasteen, then the issue of self-defense was in the case cogently. If as Chasteen testifies when appellant went in the restaurant he fired first, neither accidental shooting nor self-defense would be in the case, but these were issues raised by the facts. If we take Chasteen's testimony, appellant fired the first shot, then he returned the fire, and appellant fired again, and he, Chasteen fired again, making four shots. Taking appellant's testimony, Chasteen fired first, and then his gun went off accidentally, and the shooting continued. If Chasteen fired first, and the jury should not believe appellant's statement, that the gun was fired accidentally, they still could believe that his was the second shot and fired after Chasteen had shot at him. There being no issue of provoking the difficulty in the case by any act or word on the part of appellant, he would have the perfect right of self-defense, and it would make no difference that he testified his gun went off accidentally if the jury believed under this state of case that he fired intentionally. The issue of self-defense under all the authorities would be in the case. This question has been so often decided that the writer deems it unnecessary to cite cases. The proposition ought not to be debatable in Texas, that where a party goes to see his adversary with a view not of killing him or bringing on a difficulty, and the adversary does bring on the difficulty, the right of self-defense is not impaired. He still would be justified in resisting an attack on the part of his enemy. This question has been frequently adjudicated, and especially since Cartwright v. State, 14 Texas Crim. App., 486, and Shannon v. State,35 Tex. Crim. 2. This matter underwent a thorough investigation in an exhaustive opinion by Judge Ramsey in the Don Gray case,55 Tex. Crim. 90.
The trial judge charged the jury upon the theory that appellant's gun went off accidentally. We conclude, therefore, that he did not believe there was any evidence of self-defense and necessarily he tied the defendant's case to what the defendant personally testified on this particular issue. The trial court, charging upon this issue, could only have done so and evidently did only do so because of appellant's testimony, and bound him alone to that theory. This phase of the court's charge, however, recognized distinctly and clearly that if appellant's gun went off accidentally, that it was only after the shot was fired by Chasteen. If Chasteen fired the first shot for the purpose of killing or shooting the defendant, then if appellant's gun went off accidentally it was after Chasteen fired. If it did not go off accidentally, then it was fired intentionally by defendant. This is the strongest light in which this case could be put against the defendant on that theory. In either event appellant's gun was fired after Chasteen's gun was fired. This was an issue in the case which the jury might have believed and *Page 529 could have believed, but the court did not see proper to charge this, and limited that theory of the case alone to the accidental discharge. If the gun was not accidentally discharged under circumstances testified by appellant, but was intentionally discharged, after Chasteen fired the shot, then appellant's right of self-defense would be unimpaired and perfect. He then had the right to shoot. This phase of the law was not given, and it was presented in almost every conceivable shape by appellant in the court below, not only on objections to the charge, but by requested instructions. It is the duty of the court to submit all the issues of a case made by the facts, whether he believes the testimony or not. The jury are the judges of the facts and the weight of the testimony, and credibility of the witnesses. The court in this particular phase of the charge confined the case to appellant's statement alone of accidental discharge after he had been shot by Chasteen. The accused is entitled to a charge on all phases of the testimony from the different sources it finds its way before the jury. If the State introduces facts that raises an issue favorable to defendant, a charge should be accordingly given to the jury. If the issues are favorable by defendant's personal testimony, those issues should be submitted to the jury appropriately, and also upon the whole evidence from whatever source it comes, the issues are just as much in the case as if testified to by the defendant himself. The defendant's case is not bound down alone to his personal evidence. This matter has been discussed frequently and the law held to be the other way. Scott v. State, 153 S.W. Rep., 871; Keith v. State,50 Tex. Crim. 63; Venters v. State, 47 Tex.Crim. Rep., 83 S.W. Rep., 832; Sowell v. State, 32 Tex.Crim. Rep.. These are a sufficient number of cases on this question.
The court also charged the jury as follows: "If you believe from the testimony or have a reasonable doubt that the defendant Fount Martin went into the restaurant of the alleged injured party upon a peaceable mission, and for the purpose of making friends with the alleged injured party, then you will find the defendant not guilty." Various objections were urged to this phase of the charge. It is unnecessary to take up the different grounds of objection. It is true that if appellant went into the restaurant on a peaceable mission and for the purpose of making friends with Chasteen, it would not justify Chasteen in shooting him, but suppose he went in there not on a peaceable mission nor for the purpose of making friends with him as contended by the State, and did no act and said nothing that would justify Chasteen in shooting at him, then what would be his attitude in the case? Certainly, he would not be guilty under those circumstances if he went into the place and did nothing except to receive Chasteen's shots. Both barrels of appellant's gun are shown to have been shot. Suppose he went in upon a peaceable mission, and after getting in Chasteen shot at him; he certainly would have the right to return the fire if he had done nothing to provoke a difficulty. This *Page 530 charge would indicate to the jury that before appellant could be found not guilty they must find that he went into the place on a peaceable mission for the purpose of making friends with the other man. Under this charge, if that was not true, the converse of it was that if he went in there not on a peaceable mission and not for the purpose of making friends, he should be convicted. Under all the authorities the appellant is not required to go in a peaceable frame of mind; he may be outraged in his feeling when he hunts his adversary, but until he does some act or says something that provokes the other man to shoot at him, or he does some act himself in shooting or bringing up the difficulty, he still would not be guilty. This matter has been the subject of various decisions, and this question was very thoroughly discussed by Judge Brooks in King v. State, 51 Tex. Crim. 208. See also Airhart v. State, 40 Tex.Crim. Rep.. These two cases have been followed in subsequent decisions. To meet this appellant asked the following charge: "If the defendant entered the restaurant of O.M. Chasteen, and if he did nothing to indicate that it was his intention to kill or inflict upon said Chasteen serious bodily injury, and if said Chasteen shot, or shot at, the defendant, then you will acquit the defendant regardless of any threats which you may find from the evidence that defendant may have made against said Chasteen, and regardless of whether defendant's purpose in entering said restaurant was peaceable or otherwise." While this charge is not artistically drawn, it does call the court's attention to the correct idea, and this phase of the law should have been given in charge to the jury. This is the settled rule in Texas.
Another question is presented. Appellant claimed by his testimony that when he entered the restaurant the last time and before the shooting, he did nothing to authorize Chasteen to shoot at him, and that Chasteen fired first. He also testifies at this point and in this connection, that Butler came from where Chasteen was along the counter, passing him, appellant, and calling his, appellant's name, and holloed at Chasteen to shoot him, Butler placing himself near the south end of the counter, and near the entrance to the restaurant. This would place Butler and Chasteen almost at opposite ends of the house with appellant between them or approximately so. Appellant claims that under these circumstances it showed a conspiracy between Chasteen and Butler to do what was done, that is, to shoot him. If Chasteen fired first, under the circumstances detailed by defendant, then evidently Butler was acting in concert with Chasteen. He was present aiding and encouraging, and calling upon him to shoot, and Chasteen did shoot. This would give appellant the right under the law to have a charge submitted to the jury of his right of self-defense against both parties, they acting in concert against him. See Stacy v. State, 48 Tex.Crim. Rep.; Branch's Criminal Law, sec. 450.
It is deemed unnecessary to quote the special charges asked by appellant and refused by the court submitting the issue of self-defense. *Page 531 It is sufficient to say that question, so far as appellant's presentation of it to the trial court is concerned, is ample and full, and the court declined to so instruct in the general charge, and refused to give the special instructions. A charge on self-defense was required in the case and raised by the facts, and this although the defendant testified his gun went off accidentally, and he failed to explain how the second shot was fired. The issue is made by the facts, and the jury could have taken the view of it had they desired to do so, that Chasteen fired the first shot, and that appellant's gun may not have gone off accidentally, but that appellant intentionally fired. If Chasteen fired first and appellant then shot, either the first or second time, he still would be entitled to a charge on self-defense under the circumstances of this case. It is a fundamental proposition that the charge of the court must appropriately instruct the jury upon every issue raised by the testimony.
For the reasons indicated the judgment ought to be reversed and the cause remanded. Being unable to concur in the affirmance I enter my dissent.
[Rehearing denied November 26, 1913. — Reporter.]