Upon more mature consideration of the facts in this case we are of opinion that we were in error in holding correct the charge of the court on manslaughter. If there be error in a charge on manslaughter which might have led to a denial or abridgement of the right of self-defense, or which may have caused a conviction of a higher offense than the facts demanded, such error could hardly be held harmless, even though the conviction be of manslaughter with the lowest penalty.
In this case the court in his charge on manslaughter gave the following:
"The attempted use of violence to one's person or the apparent attempted use of violence to one's person, as it reasonably appeared to the defendant at the time, and any condition or circumstance which is capable of creating and which does create sudden passion such as anger, rage, resentment or terror, rendering the mind incapable of cool reflection, is deemed adequate cause."
This was excepted to as misleading and as being calculated to permit a conviction of manslaughter upon evidence which would require an acquittal on the ground of self-defense. Reverting to the facts herein, it appears that following some words in the restaurant in which deceased, his wife, appellant and one Woodsworth were, the latter two left the place. Not long afterward, at a time estimated at from twenty minutes up, appellant came back to the sidewalk in front of the restaurant *Page 78 and Kiely, the deceased, went out there and almost immediately the shooting took place. Three eye-witnesses testified for the State. The wife of deceased swore as follows:
"I heard one shot there. My husband wasn't doing anything immediately before that shot was fired. He was standing there with his hands down at his sides. I didn't see the defendant do anything before the shot was fired. Mr. Kiely had been out there just about two seconds when the shot was fired — from the time he got out up to the time of the shooting. I heard no words spoken."
Mr. Babbitt testified as follows:
"I seen them talking to each other and I heard this remark, I thought he said `Leave my wife alone' and I saw Mr. Cooper kind of step back. I wasn't paying much attention to them and next thing I heard the shot fired. It wasn't very long after I heard this remark `Leave my wife alone' and Mr. Cooper stepped back that the shot was fired, it might have been a minute, I couldn't say positively. Kiely was standing facing Cooper just immediately before the shot was fired. He wasn't facing exactly towards the street, it was more of a southerly direction. If I remember rightly his hands were at his sides. I didn't see him make any motion or movement with his hands just before the shot was fired."
Mr. Barkalow testified for the State as follows:
"There was just an instant elapsed between the time I heard Kiely say `Go on away and let me alone' and the time the shot was fired. I didn't notice any movement of either of them between the words that Keily spoke and the shot. As to what position Cooper had the pistol in when he shot Kiely I couldn't say, I couldn't see the pistol when he shot him. When I did see the pistol it was right this way. (Indicating in right hand near right hip.)
After I heard the door slam and saw Keily on the outside he did not at any time reach toward Cooper with his left hand and put his right back toward his pocket. He made no move at all, just stood there."
For the appellant witness Rottermund testified as follows:
"This man, Cooper, started diagonally across as though he was going to the Grand Hotel, as I supposed, and the minute Cooper stepped on the sidewalk this man came rushing out the door. So when he stepped the first step outside the door he said something that wasn't audible to me and he reached out his left hand in this manner (stretching out left hand from the shoulder) — Cooper got, I judge, about this distance (indicating about four feet) — this man came out of the restaurant and said something that wasn't audible, I don't know what he said, and got his right hand to his side like this (right hand near right side pants pocket). Cooper was in this position (left side toward Keily) and when he got his hand back like that Cooper fired from that position (right hand down at right side). I couldn't see the handle, I just *Page 79 saw the barrel of his gun. The boy staggered back, like that, (indicating) and fell in the doorway."
From the above quotations it is made clear that there was no claim by the State of any assault, or the use of any violence or attempted violence on the part of deceased toward appellant at the time of the shooting, which would not amount to a justifiable homicide, but from which there might have arisen such condition of mind on the part of appellant as to make his offense no more than manslaughter. Apparently the State's case was that of murder, or if of a less degree of homicide, then possibly a conviction of manslaughter predicated upon something that had occurred prior to the meeting of the two men on the sidewalk just before the shooting. Appellant's theory was that of self-defense based on the attack or apparent attack upon him by deceased just before the shooting, as testified to by the witness Rottermund. From the facts above stated we are led to question the applicability of Manos v. State, 58 Tex.Crim. Rep., and of Neyland v. State, 79 Tex.Crim. Rep., 187 S.W. Rep., 196. We think the case of Casey v. State, 54 Tex.Crim. Rep., more in point. In that case this court, speaking through Judge Davidson, said:
"Under the charge quoted above and criticized by appellant, a conviction for manslaughter was authorized by reason of the actual attack made by the deceased upon appellant. If deceased made any attack upon appellant at all, it was with a knife with a threat to kill. That was an actual attack and justified appellant in shooting, and he would not be guilty under the law of self-defense. Therefore, manslaughter could not be predicated upon that state of case, for in giving this charge on manslaughter, from the standpoint of an actual or real attack made by deceased with his knife, accompanied by a threat to kill, the court authorized the jury to convict of manslaughter on a state of case under which appellant was justified by law, and a verdict should have been returned in his favor of acquittal." . . . We are of opinion that the charge criticized is erroneous, based upon a state of facts upon which self-defense alone could be predicated. We, therefore, are of opinion that this charge is incorrect; first, in basing the charge upon a real attack, and, second, in placing appellant's case before the jury so that he might be convicted of manslaughter on a case of self-defense."
In Terrell v. State, 53 Tex.Crim. Rep., we find the following stated:
"It is assigned as error that the court erred in giving the following charge: `But in this connection I charge you, that if you believe that the instrument by which defendant cut and killed deceased was not in its nature calculated to produce death and would not ordinarily have produced death, but that it evidently appears to you from the manner in which it was used that the defendant intended to kill deceased, then he would be guilty of murder or manslaughter as you may find from all the evidence in this case and you are to be governed in this by this *Page 80 charge defining murder in the first degree, murder in the second degree, and manslaughter.' Quite a number of reasons are assigned why this charge is error. Among these, it is suggested that this charge involves a positive declaration that the defendant would be guilty of murder or manslaughter under the conditions named, omitting from the consideration of the jury and withdrawing from them the theory of self-defense. As this charge is presented, we are of opinion this contention is correct. If the deceased was making an assault upon appellant's father, under the circumstances detailed in the statement of the case in this opinion, and was endangering his life or inflicting serious bodily injury upon him, or it so appeared to appellant at the time he went to the rescue of his father, he would not be guilty of any degree of homicide, but would be justified, and the facts show that the deceased was inflicting serious bodily injury upon the father of appellant during the difficulty in which appellant intervened in behalf of his father. This charge further, in our opinion, had the effect of nullifying and practically withdrawing from the consideration of the jury all theory of self-defense. Appellant may have intended if necessary to kill the deceased in the defense of his father's life, or to prevent serious bodily injury, which he had a legal right to do, yet under this charge this right was eliminated, and the jury were practically required to convict of murder or manslaughter."
Our conclusion is that under the facts of this case the charge complained of was erroneous, and that the jury might have been led to believe, notwithstanding it may have appeared to appellant that his life was in danger at the time he shot deceased, that the use or attempted use of violence on the part of deceased could only reduce the killing to manslaughter, and appellant thus have been deprived of his full right of self-defense. So believing the motion for rehearing is granted, the judgment of affirmance set aside, and the cause reversed and remanded.
Reversed and remanded.
ON REHEARING February 14, 1923.