In the motion, appellant stresses a phase of the case which was not made clear on the original presentation.
There was no error in refusing to instruct the jury touching appellant's right to seek Choate for an explanation. Such an instruction is required only in cases in which the court in his charge, qualifies the right of the accused to act in self-defense. Williford v. State, 38 Tex.Crim. Rep.; Smith v. State, 81 Tex.Crim. Rep.. The charge was assailed for its failure to embrace therein an instruction defining appellant's right under the law pertaining to communicated threats.
Appellant testified that he was informed that Choate, the injured party, threatened to cut his "guts" out; that shortly thereafter he saw Choate and accosted him. He said: "I want to speak to you;" that they walked together and appellant asked him if they had not agreed to be friends; that Choate did not reply but pushed appellant back with his left hand and started to put his right hand in his pocket; that the appellant then grabbed his right hand and the fight ensued; that when he spoke to Choate he had no intention to bring on a fight; that he had previously had a conversation with Choate about making friends. According to appellant's statement, the reason he said: "Now, damn you, I guess you won't pimp on anybody again" was that he had just been told by Robinson of a threat made by Choate and that he hit him because of what he had been told and because Choate had refused to answer his question and had made the demonstration mentioned; that at the time he struck the first blow, he believed Choate was about to cut him; that during the fight, he said, in substance: "If you threaten me again, I will use a pistol."
Dallas, a State's witness, said on cross-examination, that the appellant had said that the reason for the trouble was that Choate had threatened him. Apparently, if appellant's testimony is true, antecedent to the conflict he had been informed of a threat against him made by the deceased, and Choate immediately before appellant assailed him made a demonstration which was viewed by the appellant as indicative of an intention to execute the threat. There was thus *Page 271 presented an issue of fact. That it was supported by the appellant's testimony alone did not destroy its status as an issue for the solution of the jury. The truth of his testimony was for the jury. Vernon's Tex.Crim. Statutes, Vol. 2, page 481, Cyc. Law Proc., Vol. 12, p. 487; Whart. Crim. Evidence, p. 899.
Mr. Branch, in his Annotated Texas Penal Code, Sec. 2083, says:
"If there is evidence of communicated threats and of an overt act by deceased at the time of the homicide not amounting to an actual attack, the court should charge the jury affirmatively on the law of threats in connection with self-defense."
Numerous cases are cited, among them being Sims v. State, 9 Texas Crim. App., 593.
The principle of self-defense is not limited to cases of homicide. It may be a defense to maiming. Wharton's Crim. Law, Vol. 1, page 484. This is recognized in the instant case and in a restricted manner, it was presented to the jury. The court, however, was not warranted in refusing, in response to the appellant's exception to the charge, to embody therein the phase of the law of self-defense which arose upon evidence of communicated threats made by the injured party and followed by an overt act at the time of the assault. Wharton's Crim. Law, Vol. 1, page 984; Green v. State, 15 Amer. Eng. Ann. Cases, 82.
The rejection by the jury of appellant's theory of self-defense does not cure or render unimportant the error committed in ignoring the evidence of threats. Had the jury known that, under the law, an overt act, which alone would appear of little significance, might, viewed in the light of evidence of threats, become of vital weight as bearing on self-defense, their solution of that issue might have been favorable to appellant. The issue raised from the testimony of the appellant delivered upon the trial in the presence of the jury cannot be eliminated by an exparte affidavit of the witness Robison attached to the State's pleading controverting the allegations of fact contained in the motion for a new trial. Affidavits attached to the motion for a new trial, while available to aid the court in solving the issues of fact presented in the motion, cannot be used as a substitute for testimony before the jury. In passing we will say that affidavits, some of which are found in the record in this case, filed after the trial and after the order overruling the motion for new trial, are but encumbrances and entitled to no place in the record and to no consideration by this court. The decision in the original hearing was rendered without reference to affidavits of this character put in the record by the State, and upon this hearing we must ignore these as well as those which the appellant has attached to his motion for rehearing.
For the reason that the court refused appellant's request to instruct the jury upon the law of communicated threats in connection with the charge on self-defense, the rehearing is granted, the affirmance *Page 272 set aside, and the judgment of the trial court is now reversed and the cause remanded.
Reversed and remanded.