ON MOTION FOR REHEARING. Appellant requested the following special charge:
"You are charged, as a part of the law in this case, that if the deceased, M. C. Robinson, was armed with a shotgun and was advancing, or was about to advance on the defendant on October 5th, 1923, that the law presumes that he intended to kill the defendant, or do him some serious bodily injury, and then he would have a right to shoot and kill the deceased in his own self-defense, as that term has heretofore been defined by the court."
Our original opinion is criticised for holding that no error was committed in refusing it. Many cases are referred to in the motion for rehearing construing and applying Article 1106 of our Penal Code, among them being McMichael v. State,49 Tex. Crim. 422, 93 S.W. 723. We call attention to the fact that some expressions in that opinion have been expressly disapproved in Gunn v. State, 95 Tex.Crim. Rep.,252 S.W. 172, both in the majority and dissenting opinions, but those so disapproved have no application in the present case. In Ward v. State, 30 Texas Crim. App. 687, 18 S.W. 793, Judge Hurt very clearly explains Art. 1106, P. C., and the manner of its application as follows:
"We understand the statute to mean, that when there is evidence showing with reasonable probability that the adversary of the accused was in the act of murder or attempting to commit murder, and a deadly weapon was used by him, then the law presumes that it was the purpose of the party using the deadly weapon to kill and murder; and the court should submit an hypothetical case to the jury, in substance, that if the jury shall believe from the evidence *Page 433 that the deceased was making an assault on the accused, and that he was using a deadly weapon, then the law presumes, and the jury should presume, that deceased designed to kill and murder defendant."
A comparison of this with the charge requested will reveal that the latter was inaptly worded. However, we are not inclined to cavil about words. Under the facts of the present case, if deceased was armed with a shotgun and advancing on accused with it, it appears to the writer it would be "using" a deadly weapon as contemplated in the article in question, and the jury might properly have been instructed if they found such to be the facts the law presumed that he intended to kill accused or to do him some serious bodily injury. The requested charge, however, did not stop here; what follows we think is clearly erroneous and justified the court in rejecting it. The jury were told in the concluding part of the charge that under the circumstances stated in it, appellant "would have a right to shoot and kill the deceased in his own self-defense." This result by no means follows in every case where the deceased was armed with a deadly weapon and intended to kill. If the slayer had provoked the assault with a deadly weapon — (and by "provoked" we mean the character of provocation which would limit his self-defense) — in order that he might have a pretext to kill, he would have no right to slay his adversary regardless of the latter's intent, actual or presumptive. The last sentence of the requested charge should have been omitted.
The following special charge was requested:
"You are instructed that if you find and believe from the evidence that the defendant at the time in question got out of the car in which he had been riding and went to the deceased and drew a pistol on him, but that he desisted from shooting and walked or backed away and in good faith abandoned any conflict or intended conflict with the deceased, and the deceased then got out of his car and advanced or walked toward the defendant with a gun in his hand and it then reasonably appeared to the defendant, viewed from his standpoint alone at the time, that he was in danger of death or serious bodily injury at the hands of the deceased, then you are charged that he would have the right to shoot the deceased and continue to shoot him as long as it reasonably appeared to him that his life was in danger or he was in danger of serious bodily injury at the hands of the deceased, and you will acquit him, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, 'Not Guilty.' "
In our original opinion we held the refusal of this charge was not erroneous. Appellant insists in his motion for rehearing that in this regard we were in error. We think the law unquestionably to be that when a charge on provoking the difficulty, or any other *Page 434 instruction is given which places a limitation on accused's right of self-defense, then every issue raised by the testimony which, if found true by the jury, would restore that right unimpaired should also be submitted. (See Rodgers v. State,93 Tex. Crim. 1, 245 S.W. 697; Ware v. State, 68 Tex. Crim. 376,152 S.W. 1074; Edwards v. State, 60 Tex. Crim. 323,131 S.W. 1078; Renow v. State, 49 Tex.Crim. Rep.,92 S.W. 801.) After a most careful scrutiny of the facts, however, we have been unable to reach the conclusion that the issue reflected by the refused charge is raised by the evidence. While the facts cover many pages of the record, it is apparent that the time elapsing from the meeting of the parties to the firing of the fatal shot was only a very few minutes. The impression made upon us is that the evidence does not show an abandonment and renewal of a difficulty, but that the evidence given by the witnesses are the relation of incidents of one transaction occurring rapidly and soon culminating.
If there was any evidence supporting the proposition that after appellant presented his pistol at his father seated in the car the latter "got out of his car and advanced or walked toward the defendant with a shotgun in his hand" and that at that time or point appellant shot, the remainder of said special charge, to-wit: "and it then reasonably appeared to the defendant, viewed from his standpoint alone at the time, that he was in danger of death or serious bodily injury," etc., would apply, and in such case, unless such charge was somewhere given, its omission might have been hurtful. If the testimony left in doubt the proposition that appellant shot his father as the latter was advancing toward him with a shotgun, after getting out of his car, said charge or the substance of it might be demanded. If, however, the testimony is clear and undisputed that deceased, after appellant presented his pistol at him while seated in his car, and after appellant walked away north from the car of deceased, — got out of his car with a shotgun in his hand, walked toward appellant but passed him turning east and then south and walking to a point east of the car where he was when appellant again approached him with a pistol in his hand and there shot him, — then such charge would be wholly inapplicable and its refusal not error.
The two young men who were with deceased testified for the State. Appellant and his brother testified for the defense. We find nothing in the evidence of appellant or his brother supporting the claim that the special charge should have been given. These two were the only eye-witnesses for the defense, and on their testimony the defense founded its theory and insisted on acquittal upon self-defense pure and simple. Testimony, if any, calling for such charge must come from one or both of the State's two eye-witnesses. Said two witnesses agreed that appellant came to the west side of the car *Page 435 of deceased with his pistol presented and that when deceased remonstrated with him he put the pistol in his belt and backed or walked north toward the car in which he came; that at this time deceased got out of his car holding a shotgun by the "pump". On direct examination, Olan Robinson, one of these State witnesses, referring to deceased, swore as follows:
"He had his gun in his right hand like this (indicating). He got out of the car on the west side, which would be the right-hand side while sitting in the car. My uncle got out of the car and walked around to the east side, walking in behind the car. I don't know where Jim was at the time he walked around to that side of the car; I could not see him.
After my uncle had walked around to the east side of the car holding his gun by the pump I next saw he defendant when he came around back of the car and around in front of the Cadillac car to where by uncle was. He same within about eight feet of my uncle at that time, which would be about here on the map, (indicating). Jim came in this position with his gun (raising right arm). When I first saw Jim that time he had his gun on my uncle. Uncle said, 'Don't shoot, there ain't any use.' Jim did not say anything. He just held his gun on Uncle Mac. Uncle said to Jim, 'If you don't stop I will knock you down.' He then raised his gun like this (indicating). He was about eight feet from Jim. He did not go towards Jim. He did not strike Jim. He taken his gun down, sorter dropped it. As my uncle took his gun down he kind a turned, in a turning position towards the car and Jim shot him. He was standing still when Jim shot him. He had taken his gun down. Jim did not come towards him when the shoot was fired. He did not move out of his tracks until he fired the shot.
"When my uncle said, 'Jim, if you don't stop I will knock you down', and raised his gun he had hold of the barrel of the gun with the stock advanced toward him. He did not point the barrel at Jim at any time. After he let his gun down and Jim shot him, I believe the shot took effect in his right side. . . . .
On cross-examination he said:
"My uncle got out of the car — he was turned facing south, sitting in the seat and he had the shotgun leaning on the seat — when he got out of the car he picked up the shotgun by the pump and got out of the car and went back of it. He first walked to the north, then to the east and back to the south, then he stopped on the east side of his car facing the boys. Jim then came around from behind the car. Jim had backed off this direction, to the north, (indicating). I reckon he had backed off toward his car. I don't know how long Jim was out of my view, although it wasn't long.
"His father got out of the car with the shotgun and walked around the way Jim was. Jim came into my view again when he came from *Page 436 behind this Studebaker. That car was my uncle's car. Jim could have gotten in front of the Cadillac. When I first saw him he was facing southeast. My uncle was facing the least bit northwest. I don't know, how far apart they were; I guess some fifteen or twenty steps. Jim's car was facing the same direction as my uncle's car. It wasn't exactly behind my uncle's car; it was a bit west of it. . . . Uncle then asked him not to shoot. He didn't shoot right then but he had his pistol drawn on him at that time and my uncle was standing there with a shotgun in his hand. He had that shotgun like this, (indicating) by the pump. Jim had his gun up level with my uncle's body, but I don't know what part of the body; something towards his stomach and breast, like that. My uncle said, 'Jim, if you don't stop I will knock you down.' All this time Jim had the pistol pointed at my uncle; both of them standing still. Jim didn't say anything; never said a word. My uncle didn't say anything; he had told him if he didn't stop he would knock him down and raised his gun up like this. He did not have hold of the stock. He had the barrel toward him and the stock towards Jim. At the same time Jim was standing out this way with his six-shooter leveled on my uncle and my uncle turned the butt of his gun towards him. My uncle didn't say anything then; he just started to take his gun down and Jim shot him." . . .
"When Jim got out there and drew his gun on him Mr. Robinson asked him not to shoot and Jim backed off out of sight of me; I wasn't watching him; I was watching my uncle. Jim took his father's word at the time and didn't shoot, but backed off. There wasn't another word said as far as I know from that time until he got out of the car with his gun and walked on the other side of the car. I don't know as he followed Jim off. He had to go toward Jim to get around the car. I guess he went toward Jim in a way when he got out of the car with the gun in his hand."
Arlie Robinson, the other State witness, told of the approach of appellant to his father's car, and explained to the jury from a map how his father got out of the car and where he walked after appellant backed off. On cross-examination he said:
"I say Jim was on the north of father's car in front of his car standing there talking to Ebwell; my father he walked around behind his car, well yes, pretty close to where Jim was. I don't know how far it was, two or three or four feet I guess. Well, I could see them until they went behind the cars; they did go behind the cars. . . .
"I don't know what happened in behind the car. When they got out my father was standing there in the face of Jim's pistol and had his shotgun still by the pump.
"It is not a fact that when Jim had his pistol on him there that my father took the gun that way and pointed the stock towards him; *Page 437 he had it the way you are holding it and told him he would knock him down if he didn't quit — father was about as far from Jim when he told him he would knock him down as from here to Mr. Rhrea — he did not advance towards him; he let the gun down, and started to turn and Jim shot."
Again he said, speaking of his father:
"He had gone three or four steps towards the car, you say, when Jim shot him, well he just started to turn around, he had just taken one step, that's all he had taken. He was on the east side of the car along like that. Jim was six or eight feet and not in hitting distance of my father and didn't shoot until he started to turn. My father had the barrel of the gun in his hand and let it down and took it by the pump again; he done all that with Jim standing there with the pistol in his hand pointed toward him; well I don't remember if Jim said anything. I can not tell the jury one word he ever said. Jim shot although my father had turned around. Jim turned and run after he had shot him, father turned to the west, Jim turned to the east; he still had the pistol in his hands. Well, when Jim shot the second time father turned around and shot."
From this entire record, as well as these quotations, it seems beyond dispute from the State's testimony that when deceased got out of his car with a shotgun in his hand he went around the back or north end of said car to the east side of it and was there approached the second time by appellant with a pistol presented. Holding his shotgun by the pump or barrel, deceased told appellant to come no further or he would knock him down, following which appellant fired the fatal shot. To such facts the requested charge could have no application. Under them it finds no support. There is no pretense that appellant fired at deceased as he was advancing north on the west side of his Studebaker car, toward appellant.
Nor do we find anything on which to base the theory that appellant was injured by the failure of the court to charge on abandonment of the difficulty. If appellant, after putting his pistol in his belt and backing north toward his car, had fired as deceased came north toward appellant's car on his way around his own car, some basis might then exist for such claim, but this proposition finds no support in the testimony for either side. The defense denied in toto the first advance of appellant, deny his putting up his pistol, and deny his subsequent drawing of it. The State's witnesses with equal positiveness, swear that appellant did not fire on deceased as he was going north on his way around back of his car to its east side, and also swear that after he got around there appellant again advanced upon him with a drawn and presented pistol, at which place the killing occurred. We find in this no suggestion calling for a charge on abandonment of the difficulty. *Page 438
This is a case where there are two theories, viz: that of the defense based on its claim that deceased was the aggressor throughout and that the accused acted wholly in self-defense; that of the State being that the accused was the aggressor throughout. If the State prove that after presenting the pistol at deceased the accused walked away but presently came back to where deceased was standing with a shotgun in his hand, and for no other reason disclosed by the testimony than that deceased then raised the gun, holding it by the barrel and told appellant to stop or he would knock him down, the latter fired, these facts, in our opinion, do not call for a charge on abandonment of the difficulty. We believe this man has had a fair trial and that the court gave him all the law in the charge to which he was entitled.
The motion for rehearing is overruled.
Overruled.