Appellant was convicted in the District Court of Hardeman County of manslaughter, and his punishment fixed at two years in the penitentiary.
As this case must be reversed for errors in the charge, we will not discuss the facts further than may be necessary to set forth our conclusions. By the testimony of several witnesses appellant supported his claim that deceased was attacking him with a knife whose blade was three or four inches in length, in defense against which attack he struck the blows which caused death. The truth of such testimony was for the jury under instructions from the court. Article 1106 of our Penal Code provides that when a homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting such offense be such as would have been calculated to produce that result, it is to be presumed that the person so using same designed to inflict the injury. We have held in many cases that if the facts show an attack with such weapon, the trial court should give in charge the substance at least of said article. See Branch's Annotated P.C., p. 1068, for collated authorities: Gunn v. State, 257 S.W. Rep., 172. There was a proper exception to the failure of the charge herein to conform to this rule which served to raise the question. We doubt the propriety of the form of the special charges tendered upon this issue.
Complaint is also directed at the paragraph of the charge which applies the law of manslaughter to the facts. No reference is made in said paragraph to other parts of the charge, nor is same safeguarded by anything calling the attention of the jury to the fact that under the instruction given in said paragraph a conviction could not be had if the killing, though taking place as otherwise defined therein, was in self-defense. Attention is called to this in Meador v. State, 94 Tex.Crim. Rep., 253 S.W. Rep., 299. While this might not be held reversible error if the remainder of the charge supplied the omission, in our judgment said paragraph should be so qualified.
Appellant sought application of the doctrine of retreat by an exception to the charge for failure to tell the jury that if he was attacked by deceased, he had the right to strike and continue to strike as long as it appeared to him that his life or person was in danger of injury at the hands of deceased. Under the facts of this case such charge would seem peculiarly applicable inasmuch as the parties fought over quite a distance in a road, and it was claimed by witnesses that deceased was attacking appellant practically all the time. This claim might or might not be believed by the jury, but the court was not absolved from his duty to submit the law applicable to the facts. *Page 510
For the errors mentioned the judgment will be reversed and the cause remanded.
Reversed and remanded.
ON REHEARING June 4, 1924.