The defendant was charged by indictment with the murder of W.W. Holman. Trial by jury resulted in conviction for murder in the second degree, with the penalty assessed at six years in the penitentiary. Judgment and sentence accordingly, from which defendant prosecutes this appeal.
An application to continue for the want of testimony of the witnesses to prove threats made by the deceased to kill defendant, which were communicated to him; also, to prove that deceased, as well as his brother, had guns at the place and time of the shooting. The theory of the State was that appellant, unprovoked, killed the deceased; that of the defendant was self-defense. Both theories were supported by testimony; hence a conflict in the testimony as to who was the agressor — who began the violence. Threats, whether communicated or not, in *Page 630 such a conflict, are of very great importance, as they tend to solve the problem at issue. The State's witnesses deny that the deceased was armed with a gun at the time he was shot. If this be true, appellant was in no actual danger when he shot deceased, nor was the danger apparent, when all the circumstances are considered, and self-defense was not in the case. The application should have been granted, although it was the second application; and, after the trial, the court, viewing the facts of the case as developed on the trial, should have granted a new trial to have enabled the appellant to obtain the testimony, though it was somewhat cumulative.
By a careful inspection of the record, it is evident that Mrs. Holman was simply a tenant at will; that she had no right to, or control of, the fences surrounding the farm. When, by permission of appellant, she went into the cabin, there was no gate at the place where a gate was subsequently placed, and appellant had the right to place a gate there, and close it, without infringing upon any of the rights of Mrs. Holman. Nothwithstanding this, the court in its charge repeatedly instructed the jury in regard to appellant's provoking the difficulty, or producing the occasion, which led to the killing of deceased; limiting his right of self-defense by these charges, and in one part thereof calling the attention of the jury specially to his nailing up the fence as the act or means by which the difficulty may have been provoked. To all of these charges appellant excepted at the time, reserving his bills of exception. There is not the slightest circumstance in this record demanding a charge upon the doctrine of provoking the difficulty or producing the occasion which led to the homicide. Startling and alarming, indeed, is the proposition that the citizen will be deprived of the right to protect his life for doing, in a lawful manner, that which he had a legal right to do.
The charge upon manslaughter is upon a state of facts not presented by the record, and it fails to apply the law of manslaughter to the facts presented by the record. Appellant did not contend for manslaughter because of insulting words or gestures, or a battery so slight as to show no intention to inflict pain, or an injury to property unaccompanied by violence. His contention was: first, self-defense; second, if not self-defense, that he was shot by the brother of deceased, the deceased being present, armed; and that he believed that his life was in danger from him, and was in terror. If the belief was not reasonable, then the killing under such circumstances would have been manslaughter. Another view upon this subject: Appellant was engaged in a lawful business — nailing up his fence. Two men armed with guns approached in a threatening manner, ordering him to desist from doing that which he had a right to do. Now, if a degree of anger and rage was created in his mind by these facts and attending circumstances, and he shot deceased when it was not reasonable to believe that his life was in danger, then the killing would have been manslaughter. *Page 631
Bill of exceptions in regard to the admission of certain evidence. The reasons which prompted Pleas Holman to go armed to appellant, while at the gate, are not admissible unless they were known to the appellant. They were not known. Mrs. Holman does not swear that appellant ever threatened the deceased or his brother. In fact, under the facts in this case, it is preposterous to assume that he had made such threats, for he did not know that deceased and his brother were in the country, and had no reason for believing that they would be at their mother's at any particular time. That this evidence is not admissible, see the following authorities: Cochran v. The State, 28 Texas Crim. App., 422; Bell v. The State, 20 Texas Crim. App., 445.
For the reasons stated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.