At a former day of this term, this case was affirmed, and appellant's counsel have filed a motion for rehearing, complaining of paragraphs fourteen and fifteen in the original opinion, and earnestly insists that the evidence called for a charge on self-defense applied to both Martin and Bolton, and that the court erred in not submitting the issue of manslaughter. We have reread the lengthy statement of facts with care and consideration, and while the numerous authorities cited by appellant correctly state the law, yet none of them apply to the facts in this case, as we read the statement. It is true that in determining whether an issue should have been submitted favorably to defendant, we must take the testimony of the defendant, and if it raised the issue, the fact that the trial court or this court do not *Page 215 believe it, is immaterial; if it is an issue of fact, he has the right to have the jury pass thereon, but the law in this State has been announced in many cases that if the error, if error there be, be such that it could not have operated injuriously to defendant, this court will not reverse the case. So in this case, if the court erred in the two respects named, under the verdict in this case, finding that defendant killed with express malice, when the issue of murder in the second degree was submitted, and that in so doing, he was not acting in self-defense from the acts and conduct of Martin, the only person that the entire record shows was doing any act, it can not be said that the failure of the court to submit self-defense from the acts and conduct of Bolton (whom the entire evidence shows did nothing), as well as that of Martin, would be ground for reversal. The court fully and fairly submitted every theory of self-defense as applied to the conduct of Martin, and if the jury found adversely to appellant under this charge, as they did, it could not be supposed for one moment, that their verdict would have been different if he had included the acts of Bolton with that of Martin, as the evidence of defendant only shows that the two were together, and his testimony, in the light of all the evidence, does not indicate that but one person, from his standpoint, was guilty of any conduct that would authorize him to act in self-defense, and this is shown to have been Martin, and this being fully and fairly submitted to the jury, there was no such error as should work a reversal.
Again, the court submitted murder in the first and second degree, and the jury finds defendant guilty of murder in the first degree. Can it be said that the court failing to submit a less degree of homicide was harmful, when they have found him guilty of the highest degree that was submitted? We hardly think so. But, we are still of the opinion that the evidence does not raise the issue of manslaughter. While, it is true, if you take isolated parts of defendant's testimony, he would at times use expressions that he was excited, etc., that would aid to raise this issue, yet when one takes his evidence as a whole, the testimony of defendant shows calmness, deliberation and a fixedness of purpose, and that his whole acts and conduct are based upon a pre-existing determination not to surrender the land in question. The evidence would show that the officers went to defendant's home in the day time; he was absent. They went to a neighbor's and remained until he returned. They then started to his house, when the light was put out, and appellant came out and started to his barn where he had left his gun. He was called and told they wanted to speak to him. The officer says that Martin said: "Hold on, Phil, I want to speak to you — this is Martin." Appellant admits he heard them say, "Hold on, Phil, I want to speak to you," but denies hearing him say it was Martin. But what he admits he heard is enough to convince anyone that appellant must have known it was some of his acquaintances by the fact he admits that he heard them call by his given name, "Phil." *Page 216 He did not stop, but ran to the barn where he had left his gun, and gets in a darkened stall. When he did not stop, although called by his given name, one or two shots were fired; appellant says this excited him. When he ran to the barn, Bolton and Martin went down there. Was there anything said or done down at the barn to excite anyone, make them angry, or frighten them? The witness says: "I thought he went into the feed lot, and I turned and went through the feed lot and did not find him. I said, `Mr. Fifer, Mr. Fifer, this is the deputy United States marshal; I want to see you about five minutes; want to talk to you.' I did not get any response and I opened the gate and went in on the south side of the stall. I went in and there was a manger here. I called to him again and said, `This is the deputy United States marshal; I want to see you and talk with you about five minutes;' he made no reply. Mr. Martin was standing south of the first stall where Mr. Fifer's horse was eating, some five or ten feet from me. I was some eighteen feet south from the stall where the horse was in. Mr. Martin was standing right close to that stall. . . . I would not assume it was over five minutes, I suppose, after we got to the barn before we left the barn the first time. We went back out of the corral and started to walk up towards the house. Mr. Martin was with me. Before we left the barn and started towards the house, we had not been able to get any response from Mr. Fifer. When we left the barn and started toward the house, we went about half way to the house. We stopped there. We stayed there standing about only two or three minutes, and then we went back down to the barn. Our object in going back to the barn was Mr. Martin said `He's down there, I can find him.' I said, `I will tell you sheriff, it's a little dangerous proposition to go down there, he can see us and we can not see him; I think it advisable to go up to the house and wait until he comes up.' We went back to the barn. We went back and Mr. Martin struck a match and looked in where the horse was in the stable and said, `This is Phil's horse all right.' I was standing right by him when Mr. Martin opened the door and struck the match and said, `This is Phil's horse all right.' When we got down to the next stall, Mr. Martin walked up to the door a little east of the center of the door; as we walked up, Mr. Martin said, `Have you a match?' I said, `Yes, here's one,' and I run my finger in my pocket and the gun was fired. The place where Mr. Martin struck the match was some sixteen or eighteen feet from the stall where the gun was fired."
Here are the men within a few feet of where appellant admits he was in hiding, letting him know their business and that they wanted to see him and talk with him, and when they see his horse, saying, "This is Phil's horse." Anything said to alarm anyone? We think not. Appellant admits he heard them say, "That is Phil's horse," which would further carry home to him that they were acquaintances, if not the personnel of the men. He does not say they said a word or did a thing that alarmed or excited him, except firing the shot or shots some fifteen *Page 217 minutes before. His coolness and deliberation are manifest by what he says he did, as quoted in the original opinion. That he knew who it was is manifest by the testimony of Mr. Johnson, who says that after the killing, appellant came to his house, and told him he had killed Martin, and when asked if he was not mistaken, replied, "It was Martin's voice." The fact that these two men were officers, on a lawful mission, does not render it any less a crime to kill them than if they had been private citizens, and no one would contend that if two citizens should go to a neighbor's house and call him by his given name, and when he went to his barn, to go there and call him, and if the business was urgent, to strike a match to look for him, would give one a right to kill them or either of them without asking who they were or inquiring about their business, nor would such circumstances render the mind incapable of cool reflection. When one calls another by a given name and tells him he wants to see him, as appellant admits he heard these men do, before he would be authorized to kill, the law would require some overt act on their part or some inquiry on the part of the slayer. The whole record bristles with facts that appellant was but carrying out his preannounced threats, as fully set forth in the original opinion, and there is no fact or circumstance that would reduce the homicide to manslaughter, in our opinion.
On the issue of self-defense, the evidence showing that it was Martin who fired the pistol; that it was Martin who struck the matches; that it was Martin who was approaching the stall, the jury could not have been misled by the omission of Bolton's name, when the court charged the jury: "The defendant enters a plea of not guilty, and also relies for an acquittal on the ground of justifiable homicide, and on this branch of the case you are instructed: A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to defend his life or his person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him, from his standpoint at the time, and in such case the party acting under such real or apparent danger, is in no event bound to retreat in order to avoid the necessity of killing his assailant. The questions for your determination are: Was the defendant in present danger or apparent danger? Was the homicide committed in a bona fide effort to preserve himself from impending danger or apparent danger to his life, or to prevent serious bodily injury to himself?
"It is not essential to the right of self-defense that the danger should in fact exist. It may be only apparent and not real. If it reasonably appears from the circumstances of the case that danger existed, the person threatened with such apparent danger has the same right to defend against it and to the same extent that he would were the danger real. And in determining whether or not there was reason to believe that danger did exist, the appearances must be viewed from the standpoint of the person acting on them, and from no other standpoint. *Page 218
"Now, if you shall find and believe from the evidence that the defendant shot and killed R.E. Martin, but further believe that at the time of so doing, the acts and conduct of the deceased toward the defendant were such as to indicate a present purpose on the part of the deceased to take the life of the defendant or of doing him serious bodily injury, or if from the acts or conduct of the deceased at the time, it reasonably appeared to the defendant that he was in such danger, and that it was then imminent and pressing, viewing the matter from the standpoint of the defendant alone, and that under such circumstances, defendant shot and killed R.E. Martin, he would be justified in so doing, and in the event you so find, you should acquit the defendant, or if you have a reasonable doubt, under the foregoing instructions, as to whether or not the defendant was justifiable in killing the deceased, then you will acquit him."
This presented every theory of the defendant's defense in the light of the evidence, and they were instructed that the "appearance must be viewed from the standpoint of the person acting on them, and from no other standpoint." The criticism that the court erred in not including Bolton's name under the evidence in this case is hypercritical and the issues made by defendant's testimony is fairly and fully submitted. By no possible construction of this language could the jury have been misled.
The motion for a rehearing is overruled.
Overruled.