Appellant was indicted for murder in Houston County in cause number 4424. On a former appeal the judgment was reversed.41 Tex. Crim. 603. When the case was called for trial subsequent to the reversal, motion was made by appellant to change the venue on both grounds provided by statute. Evidence was introduced in support of the motion. There are several questions raised with reference to the motion and the manner of trying it, the error of the court transferring the case to Anderson County, where appellant alleged the same influences and prejudices were against him as in Houston County. Appellant's motion was overruled, and the venue changed by the court of its own motion, and sent to Anderson County. This was not error, under the decisions of this court. If the causes did exist in Anderson County, appellant should have moved to change the venue in that county. But a serious question is raised upon the motion of appellant to retransfer the case to Houston County. The court refused the motion and to hear the evidence bearing upon it. If the facts are as contended by appellant, we believe the retransfer should have been granted. While the record is not distinct and clear, as it should be, yet upon another trial, if the facts are as contended, we believe this order should be granted. The facts, as contended by appellant, would show: That the application for change of venue and the change of venue occurred in cause number 4424. Pending this motion — that is, before its ultimate decision — an indictment charging him with the same murder was presented by the grand jury, and the cause was numbered on the docket 4470. That all the orders, trial of the motion, etc., were had in number 4424, but the change of venue occurred *Page 363 in number 4470, in which it is alleged defendant had not been arrested or arraigned. If, as a fact, the motion and subsequent orders on the motion were in number 4424, they had no application to number 4470, and therefore cause number 4470 was erroneously transferred to Anderson County. We are not deciding the question, but, if the facts are as we understand appellant contends, then the issue should be investigated; and, if the facts are so found, the case is improperly in Anderson County.
The ruling of the court in regard to the application for continuance will not be discussed, as upon another trial it may not arise.
Error is assigned upon the following charge: "It is not necessary that the slayer should have greater enmity against the person killed than against others, nor need any enmity be shown, in order to constitute legal malice. And if the homicide be intentional, unlawful, and without excuse or justification, no previous design to kill need be shown in order to constitute malice aforethought; it may be sudden, rash impulse." We do not believe this is a correct charge. We do not deem it necessary to cite authorities.
The court also erred in the following portion of his charge: "There can be no unlawful homicide without unlawful intent. And in every case, in determining whether the attack or assault or supposed assault is such as to justify or excuse the homicide or not, the circumstances must be viewed from the standpoint of the slayer; and, if the act or acts and words of the person making the attack or supposed attack were such as raised in the mind of the slayer a reasonable expectation or fear of death or serious bodily injury, as viewed from the slayer's standpoint, then in such case the killing would be justified or excused, according as the apprehension was correct or not." We desire to emphasize the last expression, "according as the apprehension was correct or not," as error. Self-defense does not depend upon the slayer's correct apprehension of apparent danger. A deceased party may, under such circumstances, draw an unloaded pistol. The accused, believing his life in danger, shoots and kills. Yet, as a matter of fact, he may have been in no danger, for the pistol was unloaded. If defendant believed, under such circumstances, that his life was in danger, or the appearances were such to him, he would have the right to shoot whether his apprehension was correct or not, and be justified under the law of self-defense.
The State proved by the witness Hunter that he had seen B.M. Lankster, son of defendant, before he (witness) testified, and Lankster had told him what to swear to. Defendant then offered to prove by said Lankster that he did not tell Hunter what to swear to, but that George Hunter, father of the witness Hunter, told him (Lankster) what his son had heard; and Lankster then, in the presence of George Hunter, asked the witness Hunter what he knew; and, after witness had told him, that he (Lankster) told witness that he wanted him as a witness to prove these facts. This was offered to rebut any *Page 364 presumption raised in the minds of the jury that he (defendant) was fixing up evidence through his son, or anyone else. The court rejected the testimony, and appellant excepted. This testimony should have been admitted under the circumstances. The State had undertaken to leave the impression upon the jury that the younger Lankster was fabricating or manufacturing testimony in aid of his father. It would take no authority to support the proposition that defendant had the right to meet this, and remove its effects from the minds of the jury. We wish to state further that the character of testimony here introduced by the State was totally inadmissible, unless the State could connect defendant with the act of his son in going to Hunter. He was not bound by the act of his son, unless he authorized it.
By another bill of exceptions it is shown the State placed Earl Adams on the stand, and proved by him that W.F. Lovejoy was in court when the case was formerly tried, and was not placed on the witness stand by defendant. Appellant then offered to prove by the witness the reasons for not using Lovejoy as a witness, which reasons are stated. Adams was used evidently to meet one of the allegations of the continuance based upon the absence of Lovejoy. This could not be done, as it was not a question of inquiry before the jury. But, having been permitted, certainly defendant was entitled to remove any adverse impression made by reason of its admission.
For the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.