DISSENTING OPINION. This case is before us upon rehearing, and Judge Hawkins has written an opinion indicating that it should be reversed because of the failure of the court to apply the doctrine of reasonable doubt to the paragraph of the charge submitting the issue of self-defense apart from threats. I am unable to bring myself in accord with that view, and submit the following:
There has rarely come before this court a case showing from the State's standpoint a more deliberate assassination than this one. Appellant and deceased had been friends but had fallen out, and appellant had ordered deceased not to come on his place. Deceased had made threats against appellant who, he claimed, had talked about his wife, accusing her of having been drunk. On the occasion of this homicide appellant was at his home working on a wagon when deceased, in a Ford touring car with curtains, drove up and stopped, according to the testimony of appellant's own daughter (S. F. 68), thirty or forty steps from where appellant was at work. The wife of deceased was in the car with him. He asked appellant if he was working hard or hardly working. After a few remarks deceased asked appellant if his wife looked like she was drunk. Appellant said no, and deceased asked him if she looked any more like it than when appellant had seen her last before, and, according to *Page 258 appellant's testimony, deceased then called him a damn liar. The State's testimony contradicted this, but that is aside. Appellant alone gave any testimony favorable to his contention of a killing upon self-defense, apart from some other testimony as to threats. On his direct examination he gave no such testimony, but swore as set out in our original opinion. He said that when deceased called him a damn liar, he told deceased he had taken all he was going to take, — went and got his gun, came back and shot deceased in the back. He said he asked deceased twice to leave, and the latter replied that he would not go until he got ready. However, on cross-examination appellant testified that when deceased called him a damn liar, he, deceased, started down like that, — indicating by running his hand down between his pants and shirt, — at which juncture appellant went to his wagon, got his shot gun, came back thirty or forty steps, according to his daughter, to the right side of the car of deceased, raised the gun, and when the wife of deceased threw herself in the way, appellant stepped further back, and while deceased was still sitting under the wheel unarmed and in his shirt sleeves, shot him in the back, killing him. Appellant testified he was about five steps from the car of deceased when he shot. He mentions no other movement of deceased save that before appellant got his gun deceased ran his hand inside his pants. All the witnesses affirm that deceased had no weapon, and that he was in his shirt sleeves, and all of said witnesses affirm he made no motion of any kind before he was shot.
Appellant would have the jury believe that he shot in self-defense upon his testimony only that deceased ran his hand in his pants at the time deceased called him a damn liar,after which appellant walked to his wagon, got his shot gun, came back, presented the shot gun, — Mrs. Ticer threw herself before the shot gun, and appellant walked back to get free from her interposition, his victim sitting there all this time doing nothing, and that he then shot him in the back. This much for the facts.
What of the law? This court has gone a long way in some cases in holding that what might be termed the affirmative defensive theory should have coupled with its presentation a separate announcement applying the doctrine of reasonable doubt. This proposition when considered in the appellate court should not be laid down as an invariable rule, but should be governed by the facts of the case and the charge as given. It is also true that in certain cases this court has said it is not enough to charge on self-defense, when an *Page 259 issue, only in connection with self-defense based on threats. See cases cited in Branch's Ann. P. C., Sec. 2089. Examination of all these cases makes apparent the fallacy of saying that this rule should be given application in all cases. Each case cited plainly shows from its facts and the character of charge actually given, that injustice was done in the trial court by giving a charge on self-defense coupled with threats, and omitting to charge on self-defense apart from threats. Not so here. In most of those cases the testimony as to threats was weak or equivocal or practically nothing, — while testimony supporting self-defense otherwise, was strong and cogent; but in this case we have facts wholly different. To start with the court below charged on self-defense coupled with threats; also such self-defense apart from threats. Further, we have here a case in which threats were proved by several witnesses without question or dispute, and in which self-defense, if any, was dependent on what appellant alone swore he took to be a threatening gesture by deceased, viz.: running his hand down in his pants. If such testimony raised and supported the issue of self-defense, — then beyond doubt it with more force supported the theory of self-defense based on threats. Self-defense apart from threats was based alone upon appellant's testimony as to a threatening movement; self-defense based on threats rested alone upon his testimony as to this threatening movement backed up by undisputed testimony as to threats. In his charge quoted in our opinion the trial court most fully and favorably to appellant submitted in paragraph thirteen self-defense based on threats accompanied by some act or word indicating a present intention on the part of deceased to execute the threats, and said paragraph wound up by an application of the doctrine of reasonable doubt to such theory. Under the undisputed facts this would seem to be all appellant was entitled to. Under said facts it is perfectly clear that if there was no self-defense based on threats, then there was none at all in the case, and for us to reverse this case because the court in charging on self-defense apart from threats, after stating the law of that issue in paragraph eleven most favorably to appellant, — omitted to include in said paragraph the law of reasonable doubt as applied to this character of self-defense, would seem not only to ignore Art. 666, C. C. P. entirely, but would be a reversal upon a complaint of the charge wholly lacking in substantial merit or substantial possibility of injury. We are forbidden by statute to reverse cases for errors in the charge which are of no injury to the accused. Art. 666, supra. It seems utterly *Page 260 impossible to conceive of injury here because of the failure to insert the charge on reasonable doubt in paragraph eleven submitting the defensive issue of self-defense, which was weakly supported and overwhelmingly combated; when said charge on reasonable doubt was given in the paragraph submitting the same defensive issue of self-defense as far as the threatening gesture was concerned, which latter issue was more strongly supported by the undisputed testimony as to threats. This seems especially true in view of the fact that the doctrine of reasonable doubt was in addition applied to the whole case and to many of the other separate paragraphs of the charge.
This is said without discussing the fact further that all other parts of the charge presenting the defense were most favorable to the appellant; and that it seems altogether improbable that the jury could have failed to give him the full benefit of every doubt supported by any testimony.
Self-defense based on threats becomes available only when the injured party at the time of the assault does some deed, or makes some gesture, or uses some expression which reasonably causes his assailant to think that he is about to execute such threats. Granting the proof of threats in this case, and considering only appellant's testimony, it shows beyond any serious question that after the deceased had made the threatening gesture attributed to him by appellant, the latter took sufficient time to walk from where he was back to his wagon, to there pick up his gun, to then walk back to where deceased was sitting in his car, and to then raise his gun, and when the wife of deceased interposed, to walk further back and shoot deceased in the back, he having made no further gesture. I am sorry, but I can not bring myself to believe that this case should be reversed for the failure of the court to couple reasonable doubt with the paragraph presenting self-defense apart from threats, and I respectfully dissent.