The state asks for a rehearing on the ground that the supposed error in the charge for which reversal was ordered, is not sustained by the record, and that the two other matters deemed erroneous were not of such importance as to call for a reversal.
We are of the opinion that it is not sound to attempt to lay down any hard and fast rule that every case must be reversed in which the paragraph presenting affirmatively the theory of the defense does not contain an application thereto of the law of reasonable doubt. The cases of Hathcock v. State, 281 S.W. 859, and Tucker v. State, 281 S.W. 869, are not capable of being so construed. Those cases merely hold that the reasonable doubt should be submitted in connection with the affirmative defense offered.
In Andrews v. State, 275 S.W. 1024, upon authorities cited, this court through its Presiding Judge states:
"The rule requiring that the law of reasonable doubt be embraced in the paragraph of the charge submitting the affirmative defense, is not so imperative or inflexible as to demand a reversal in every instance in which the rule is not observed."
We further state in this connection that it is a safe practice, however, and one to be commended to trial courts, that they give the law of reasonable doubt as a part of the affirmative presentation of the defensive theory when one is advanced.
In the instant case paragraphs 15, 16, 17 and 18 of the charge all related to self-defense and lay down directions to the jury in regard to said theory, and might appropriately have been combined in one extended paragraph. Paragraph 16 thereof is quoted in our original opinion. Paragraph 18 is as follows:
"You are further instructed that if you should find and believe from the evidence, beyond a reasonable doubt, that the defendant did shoot and kill the said John Patton at the time and place charged in the indictment, yet if you have a reasonable doubt as to whether the killing was done in the defendant's self-defense, you will resolve the doubt in favor of the defendant and say by your verdict, not guilty."
Construing paragraphs 16, 17 and 18 together, and bearing in mind the well known rule that the charge must be looked to *Page 604 as a whole, it is obvious that said last quoted paragraph fully instructs the jury to acquit on the ground of self-defense if they have any reasonable doubt as to whether the killing was in self-defense. The jury could not have mistaken the application of the principle laid down in paragraph 18, and must have given it effect when they considered paragraphs 16 and 17. We think we erred in directing a reversal upon the ground that paragraph 16 of the charge was erroneous because it did not contain within itself an instruction upon the law of reasonable doubt. In the original opinion we overlooked paragraph 18 supra.
Neither of the other two matters mentioned in our former opinion are deemed of any serious import. From the record it appears that deceased and Will Lard went to appellant's place of business to borrow a car; Lard and appellant went into a private office where, in a few minutes, they had a fight. Deceased, after waiting a short time for Lard, had gone away. Lard got the worst of his encounter with appellant. From his place of business appellant went home, got his pistol with cartridges and returned to the business part of the town where he was some fifteen or twenty minutes after his fight with Lard. Deceased approached appellant and without warning struck the latter two blows with his fist. It is further made to appear that during the short interim between the visit of Lard and deceased to appellant's place of business, deceased had been looking for appellant, had been back to his place of business and to another place asking for him. We find nothing in the record pertaining to appellant's fight with Lard, nor to the fainting of appellant's witness, Mrs. Waggoner, which in any way could affect the sufficiency of the testimony herein to support the jury's verdict of guilty of man-slaughter, or that could have injuriously affected the rights of appellant on this trial. He was given the lowest penalty by the jury. Deceased was undisputably in his shirt-sleeves; he attacked appellant with his fist, had no other weapon, struck appellant two severe blows, whereupon appellant drew his pistol and shot twice killing deceased. A blow with the fist causing pain or bloodshed is deemed by our lawmakers adequate cause to reduce a homicide to manslaughter. The jury were so told. Their verdict responded to this instruction and these facts and they saw fit to give appellant the benefit of every apparent doubt and inflicted the lowest penalty.
In his argument resisting the state's motion herein appellant urges that paragraph 17 of the court's charge was erroneous. Same tells the jury that in viewing the matter they must look *Page 605 at it from what they believed from the evidence to have been the standpoint of the appellant at the time of the occurrence. This we believe to be correct. We find ourselves unable to see how the jury could look at the matter from the defendant's standpoint save as that standpoint was presented by the evidence adduced before them, and we perceive no error in telling the jury that it was their duty to determine from the evidence what the standpoint of the accused was at the time of the shooting. There is no analogy between the case before us either on the law applicable or the facts, and that of Tro v. State, 274 S.W. 634.
The motion of the state is granted, the judgment of reversal set aside, and the judgment of the trial court is now affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION TO WITHDRAW REHEARING.