When the original opinion was delivered, I was absent and did not participate either in the consultation with or in the conclusions reached by my brethren. The case was submitted again upon motion for rehearing, upon brief and oral argument. I have reviewed the case and the conclusions as stated by my brethren, and am wholly unable to agree with the affirmance, or their conclusions on questions decided.
There are quite a number of questions in the case in regard to the admission of testimony some of which clearly show reversible error. In the attitude, however, in which the case is presented on rehearing, I shall confine myself particularly to the failure of the court to give a proper charge on self-defense and a refusal to charge on manslaughter. Exceptions were duly taken to these matters in the trial court.
There is, to some extent, a slight divergence in the testimony developed on the trial for the State and the defendant. Some of the main facts are not only not controverted, but testified by both parties. There were two eye-witnesses to the transaction, L.J. Bolton and appellant. Bolton testified that he and deceased, Martin, went to appellant's home at night; they got off their horses, crossed appellant's fence about a hundred yards from his residence, and on the north side of his residence. When they got to the fence north of the house, he saw a light in the house, and after he and deceased, Martin, had crossed *Page 219 the fence and had gone a few steps, the light went out. They were then about fifty yards from the house. The next thing they saw was appellant running from the house towards his barn. He did not see appellant when he came out of the door of his house. Appellant had gotten about a couple of steps from the house when the witness first saw him. The first thing said was by Mr. Martin, who called to appellant and said, "Hold on, Phil, I want to see you, it is Martin." They were then not over fifty yards from appellant. Appellant paid no attention to this, but kept on running. He said Martin again called to him and said he wanted to see him, and repeated this the third time. Appellant "did not slow down any when Martin made these calls. The next thing I heard was Mr. Martin fired a gun. I suppose I was eight or ten steps in front of Martin, between him and Fifer, when Mr. Martin fired this gun. There was only one shot fired there. I saw Mr. Fifer when the shot was fired, he was running then; he had not slowed any from the time he left the house until the shot was fired; then he turned and 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, 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 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. 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 *Page 220 eighteen feet from the stall where the gun was fired. . . . Immediately after the shot was fired, Mr. Martin said, `Phil, you have killed me,' kept repeating, `Phil, you have killed me.' He must have said it half a dozen times, `Phil, you have killed me.' . . . When I made this trip over there at the time Mr. Martin was shot, it was for the purpose of putting him off. I went there to tell him that I had this replevy bond."
There was about fifteen or twenty minutes elapsing between the time that Martin shot at appellant as he was going to his barn and the firing of the shot which killed Martin. On cross-examination, this witness said that he had no process to serve on appellant when he went to his house that night, and neither did Sheriff Martin, who was killed. He said he went there only to talk to him. That he did not have any process of any kind to serve on him. When Mr. Martin fired the shot, Bolton says he was about ten steps ahead of him. He stopped and said, "I wouldn't do that, sheriff. I said that loud enough for him to hear me. He did not say anything. I said I wouldn't do that. I said that because I didn't see any use in it. That was the only reason. I didn't feel I had a right to fire that gun and didn't feel that Mr. Martin had a right. I had no kind of process, either civil or criminal, to serve on him." Neither Martin nor Bolton undertook to serve any process on appellant. Bolton had none. Martin was a State officer, not a Federal officer. Both were trespassers. The sequestration bonds he had, which had been given by plaintiff against appellant in Federal Court were not "process."
There was no conversation between Bolton and Martin had with appellant. Appellant, under this record, did not say anything to the parties while they were there. This witness further testified that they walked towards the barn after he told Martin he had rather wait at the house. "I said awhile ago, Martin said Phil is down there, we can find him, and we went down to hunt him down. We did go down to hunt him down. We got through the fence and went to hunt him down. We went to hunt him down. I further testified on habeas corpus trial Mr. Fifer did not make any demonstration until we cornered him and he had no avenue of escape. He made no effort until we had hunted him down to fire any shot. At the time Martin fired this shot, Fifer did not have any weapon in his hand as he ran from the house to the barn. If he had a gun with him I would have seen it. I did not see any. He was not making any demonstration towards Martin."
This is a sufficient statement of the State's side of the case to bring in review the law questions that I desire to discuss. Appellant took the stand and gave his version of the matter. He says: "It was not my intention to use any violence against anyone unless attacked. There was nothing only good feeling existing between me and Mr. Martin prior to January 26, 1911." This was the night of the homicide. Appellant had been duck hunting that evening, and returning, left his *Page 221 gun in a manger in one of the stalls at his barn, which is about 175 yards from his residence. He further testified that at the time he blew out the light and started from his house to his barn, it was for the purpose of feeding his stock, and he was wholly unaware of the presence of Bolton and Martin until after he emerged from his house. He says, "After I got out the door and went five or six steps, I glanced around and saw a party in the dark. I went on ten steps further and some one spoke to me and said, say, hold on. I didn't stop and they said, `Say, Phil, hold on;' I didn't stop, I just kept going down toward the corral. I could not tell who it was. I went to the corral a little south of east. There was no gate for them to come through my fence at that part of the fence. Straight from the house to the fence I suppose it was about 100 yards. The way I went from the house down to my barn, sheds and corral I suppose it was 175 yards. After I got to the southwest corner of the corral, there was a fence that continues on south, the southwest corner of the stock yard there is a fence that extends on down and joins another fence; when I got to that fence someone hollered stop. I did not know who it was that hollered stop. After I got over the fence I went possibly two or three steps and there was a shot fired at me. I heard the ball, it came close enough for me to hear the ball. There was two shots fired at me and I run. They were just as close together as a man could shoot two shots, I reckon. I couldn't say where they got over the fence; the best I could tell from the location they were on the inside of the fence when I saw them; that was when they said, `Say, hold on;' they were not north of the house, but a little east of north at the time the shot was fired." They followed him to the barn, and when reaching the corral, they opened the gate and went to the stable door. "I did not hear either of them say anything at that time. When they got to the door, I could hear the match struck, hear it pop, and I heard one say that is his horse. I did not know from their voice who it was; he spoke in a low tone of voice, and I could not recognize who it was. There was a gate at the southwest corner of the corral, and I heard the gate fly open, swing back and hit the fence, and I could hear them walk out into the stock yard; they were gone possibly two or three minutes; they came back to the corral and came back into the open shed at the east end of the crib where I was. They did not at any time make known to me who they were, nothing at any time; there were no words spoken, or no names called, or make known their business. I next saw them after they came back to the east end of the crib. I heard someone walk up by the side of the crib and the door was darkened, and it was then that I fired the gun. When the door was darkened I fired the gun. I did not know who it was when I fired the gun. What caused me to find out who it was, I heard someone say, `You have killed Mr. Martin,' that is the first I knew who it was. When I fired this shot when this door was darkened, there had not been any explanation made to me of the shots that had been fired at me. I will tell the jury that I fired *Page 222 this shot because I had not got over the excitement of when these shots were fired at me. I heard a man ask, `Have you a match?' and I supposed they were there to hunt me down, and that when they struck the match, they would see me and I shot to protect myself from being shot. If these parties had not followed me up I would not have shot them. I am sorry it was done, it occurred; if they had come there in the day time it never would have occurred. I did not have any such feeling toward Mr. Martin that I wanted to injure him in any way. If Mr. Martin had not followed me up down there as they did and fired these shots I would not have shot when the door was darkened. I shot one time."
While the testimony is voluminous, this is a sufficient statement to show the two theories upon which the case was tried. The court charged appellant's right of self-defense as against danger or appearance of danger from the deceased, Martin, and confined the jury, in passing upon the question of self-defense, exclusively to the self-defense theory on account of the danger from Martin. Just why this limitation was placed on the doctrine of self-defense is not explained in the record, nor has it been explained in the opinion of my brethren. The only theory upon which this judgment can be affirmed is that the trial court did not believe appellant's testimony, and discarded even that of the State witness, Bolton, and the majority of this court has followed the same line of thought. If the testimony of appellant is discarded from this record, the theory of self-defense is brought prominently from the testimony of Bolton, both as against Martin and himself, and required of the court to charge the jury the theory of self-defense as against both Martin and Bolton. Bolton testified they went there at night. When appellant left his residence, going in direction of his barn, he was running. He certainly had a right to run. Bolton says Martin fired one shot at appellant. There was absolutely no excuse or reason for the conduct of the two parties at appellant's house that night, and there certainly could be no excuse for the shot that was fired at appellant when he was running to get away from him. He was at home where he had a right to be. They were trespassers under Bolton's testimony. Bolton says they had no process to serve on him, went to the barn to hunt him down, and they did hunt him down, and if they had not hunted him down, this killing would not have occurred. This is plainly evident from Bolton's testimony. When we supplement Bolton's testimony with that of appellant, he says he was running, and they fired two shots at him. He went to his barn where he had a right to go. They followed him into his barn, hunting him down, as Bolton said, where they had no right to go and doing an unlawful act which was not justified, but condemned by the law. If they had process to serve, they were acting in an unlawful, unauthorized and illegal way.34 Tex. Crim. 161; 32 Tex.Crim. Rep.. From either standpoint, the State's or the defendant's testimony, appellant had a right to defend against both, and his legal rights under all the *Page 223 authorities and under our statutes were overridden in the trial court and is affirmed here. The authorities are overwhelming in Texas, and without exception, and so far as I am aware, absolutely everywhere, without an exception, that a party has the same legal right to defend against more than one aggressor as he has against the attack of one assailant. This case forms the exception and overrides and sets at naught the law as it has been declared in all the history of our jurisprudence. Perhaps, the correctness of this question might be illustrated from another standpoint. Reverse the homicide and make Martin the slayer and appellant the victim. Place Bolton upon trial before a jury: would any lawyer question for one moment that the court would be required to charge the jury the law of principals, and that had Martin killed Fifer, and Bolton was present, knowing his unlawful intent, aided or encouraged by words or gestures, or was acting with Martin, he would be as guilty as Martin? Were Bolton and Martin acting together? What does Bolton say about it? Is there a candid mind who doubts they were acting together after reading Bolton's evidence? Bolton was a Federal officer only to serve process for the Federal Court. Martin was a State officer, without authority to serve Federal process, but went with Bolton. Bolton's evidence demonstrates, as does all the facts, that Bolton and Martin got together for a common purpose. They went together to appellant's house to put him off the premises. Bolton had no process for that purpose. They went at night. They were hunting appellant; went for that agreed purpose. They together chased him from his house to his barn; together they were searching the barn, one furnishing matches while the other lighted them in order to find appellant. They left town for the purpose, agreed purpose, of going to the home of appellant. Everything they did thenceforward was by a common design, acting to a common end, each aiding the other to accomplish that common purpose. Yet in the face of all these facts produced by the State witness, Bolton, it is to be written into the jurisprudence of this State that appellant could only defend against one of the assailants; that he had no legal right to defend against Bolton; that Bolton's conduct was too trivial to form the basis of a charge on self-defense, yet he was acting purposely with Martin. The reason for this distinction I have sought in vain. My brethren do not give me any light. I will cite a few of the cases in regard to sustaining the proposition that a party has the same right to defend against two or more as he would against one assailant. Bean v. State, 25 Texas Crim. App., 357; Francis v. State, 55 S.W. Rep., 488; Stacy v. State, 48 Tex. Crim. 96; Meuly v. State, 25 Texas Crim. App., 302; Barnard v. State, 25 Texas Crim. App., 174; McLaughlin v. State, 10 Texas Crim. App., 359; Cartwright v. State, 16 Texas Crim. App., 487; Jones v. State, 20 Texas Crim. App., 670; Seeley v. State,43 Tex. Crim. 69. Again, suppose appellant had killed Bolton instead of Martin, will it be maintained that he was *Page 224 not entitled to a charge on self-defense? Certainly he would. Under the opinion, however, he would not be.
The authorities are entirely harmonious, and without a dissent, that where the evidence raises the issue of self-defense, failure to charge on that theory is reversible error, and this includes every theory of self-defense made by the evidence. It is not sufficient to submit only a part of the law of self-defense, but whatever of self-defense is raised by the testimony, the law demands of the trial court that he submit the law fairly and fully as to all such evidence. The court can not be justified in selecting a part of the testimony on this subject and only submit the issue of self-defense from his selection. All phases of self-defense are equally guaranteed by the law. Right of self-defense is not to be held at caprice, but is legally a sacred right. It is not to be treated as "hypercritical" as held by my brethren. The authorities upon this proposition are absolutely so numerous, harmonious and overwhelming, and so well known to the profession that I deem it unnecessary to cite them. This is as much as I care to say upon this branch of the case.
I desire also to say under the evidence stated, the issue of manslaughter was clearly and definitely raised. Here were two men visiting appellant's house at night. He says he did not know who they were. Bolton says Martin informed him that it was he, Martin, but Martin did not inform appellant who was with him. Not only so, but when they hailed appellant, appellant ran, and under Bolton's testimony, Martin fired at him once. Under appellant's testimony, he fired twice, and one of the balls passed near enough to his head for him to hear it. They pursued him as he ran from them; he ran into his own barn; they pursued him there, and as Bolton says, "hunted him down." Martin did not have any pistol in his hand at the time the fatal shot was fired, but under Bolton's testimony, it had not been more than fifteen or twenty minutes from the time Martin had fired at appellant fleeing until the fatal shot was fired, and all this occurred in the dark hours of the night on appellant's premises, and by those who could not and did not justify their presence and conduct at the time and place. If this does not suggest the issue of manslaughter, it would be difficult for a state of facts to arise which would suggest that theory. Not only so, but manslaughter was further in the case from the standpoint of cooling time. Appellant did all in his power to have this phase of the law charged as well as he did with reference to self-defense. He promptly took exceptions to the failure of the court to give the charges, and urged these in every possible legal way, besides requesting special charges. It occurs to me that if there ever was a case before this court in its history, that demanded charges upon self-defense against two parties, this is a case, and it is as equally certain to my mind, under the facts, that if the issue of manslaughter could possibly be raised, it was raised under the facts of this case.
I desire, respectfully, but most earnestly, to dissent. *Page 225