Appellant was allotted a life sentence in the penitentiary for murder in the first degree. The indictment charged him with killing a party named F.T. Wagnon. The evidence shows that at the same time and place and in the same difficulty appellant shot and killed Olive. The evidence shows beyond any question that there had been previous troubles between the parties, and especially between appellant and Olive. That Olive had on one occasion, while appellant was in an intoxicated condition, beat him very badly with a hoe. There had been numerous threats made by Olive and Wagnon to take the life of appellant, all of which had been communicated. Appellant had been arrested at the instigation of these parties for carrying a pistol. He had charged Olive with assault with intent to murder. Wagnon and Olive were witnesses against appellant and he against them. These troubles had been going on for some length of time. We deem it unnecessary to go into a detailed statement in regard to these previous difficulties, *Page 119 threats and matters of that sort. Suffice it to say that there was no question of the existence of the troubles and the animosities and threats.
On the day of the homicide the case against appellant for carrying a pistol was to be tried at the county seat. The two deceaseds, Olive and Wagnon, were witnesses against him and went to court. Appellant did not go, giving as a reason that he was afraid that the two deceased parties would kill him. In the evening of the same day Olive and Wagnon were in a wagon returning home from court, with Chadwick in company with them. As they approached what the witnesses termed Cypress bottom, the two deceaseds got their guns from under a wagon-sheet and laid them across their laps, Wagnon holding his in his hand. This was something like 150 yards before they reached the point where the tragedy occurred. Chadwick was riding a short distance in the rear of the parties in the wagon. After reaching a point of about 150 to 200 yards from where they took their guns from under the wagon-sheet, a shot was fired at them from one side of the road, followed by four or five others, the witnesses not being accurate, but stating there were from five to seven shots fired, both occupants of the wagon being killed. Appellant fired those shots.
I am not in full accord with the statement of the case found in the majority opinion so far as it relates to the questions suggested for revision. Prior to the homicide there had been serious trouble between the parties. Many threats had been made by both of the deceased parties against the life of the appellant. Twice he had been arrested at their instigation and prosecuted. Olive had beaten him on one occasion to insensibility when he was in a drunken condition, using a hoe for that purpose. The State's theory, under the circumstances, was that appellant was actuated by malice, hatred and revenge, and was lying in wait for the two deceased parties, Wagnon and Olive, for the purpose of killing them in pursuance to a formed design, and that he did in fact kill both of them as they were traveling along the public road. Appellant's theory was that he had intended to go to town on that particular day to stand his trial, but after thinking over the matter he was afraid to go on account of the presence of these two parties, Olive and Wagnon, and for fear that they would kill him. They were witnesses against him in the case pending against him in court. He, therefore, abandoned the idea and did not attend the trial. In the evening he says he had occasion to go to a mill some distance away for the purpose of telephoning the sheriff his reasons for not attending court. En route from his home to the mill he came to the road crossing Cypress creek. Traveling down that road he saw the two deceased parties traveling the same road in his direction. Fearing an attack from them he stepped to one side a short distance from the road and got near a tree, but plainly in sight of the road. He states that the *Page 120 parties were approaching him in a wagon and had their guns across their laps, and in order to avoid having trouble with them he left the road, thinking if he got out of their way they would pass him by without trouble, but when they reached a certain point, something like thirty or forty yards from him, they began preparation or made movements as if they intended to shoot, whereupon he fired and continued firing until he shot several times. The horses ran, and when the wagon was found the two bodies were in it, Wagnon with his Winchester firmly gripped in his hand, and Olive lying in the bed of the wagon with his gun by him. Wagnon's grip upon the gun was sufficient to hold it until it was taken out of his hand after his death. The State's witness, Chadwick, who was riding a short distance in the rear of the wagon at the time of the difficulty, did not see appellant until after the shooting. He went hurriedly by and did not stop or have any conversation with appellant. The evidence showed the reputation of the two deceased parties was sufficient to show that they were men who would execute threats they had made. They were brothers-in-law, and their threats and conduct were so intimately blended as to show practically on their part a common enmity and a common cause against appellant, and common action at time of the shooting.
Appellant, among other things, testified as follows: "As I was coming into Castleberry Rodden's mill somewhere, I reckon about fifty or seventy-five yards near as a man can guess, I saw these parties coming each with his gun in his hand, and I had one in each hand, and I was coming up that road and thought once I would go direct on and pass them, and I says I just can't naturally take the chances, and I just steps by the side of this oak tree and set the Winchester down against it and stood there with the gun in my hand, and they saw me when I quit the road and there was not anything to keep them from seeing me by the tree but just a few scattering trees, and I didn't aim to fire a gun or move if they had not raised their guns to shoot me. Both of them raised their guns as far as I could see, and especially Mr. Wagnon, as he was on the lefthand side. It was a Winchester gun that he had, and he went to raise it to shoot me and I commenced to fire. I don't personally know how many times I fired."
On cross-examination he says: "I got in the road just around the far end of the bridge, and I walked on down that road. Well, you can see a good piece down that rockway. I can't say how far down that rockway you can see, but you can see further now than you could in September. I don't know how far down the rockway you could see. . . . Well, now I really don't know how far I traveled that road before I saw them, but it could not have been 200 yards. I don't believe it was 200 yards this side of the bridge to where it was done. I did travel it something near 125 yards. I did not see Mr. Chadwick then. They did see me when I left the road, and we were *Page 121 about seventy-five yards apart when we saw each other. I was back ten or fifteen steps towards the bridge when I saw them. They did keep on coming and I kept going. I never counted how many steps I had taken before I turned out. I turned out from the rockway right by that tree; when I got even with that tree I turned away from the rockway and they saw me do that, and they saw me go to that tree. I don't know whether they saw me set down my Winchester, but I don't expect they did. They did see the gun in my hand. . . . I just walked right up to the tree and walked like here was the tree and set the Winchester directly north of the tree, which is towards the bridge, and I didn't set it behind the tree. When I set the Winchester down I stood there by the side of that tree. I did not take the safety off of my gun, and they kept coming. Q. After you got to the tree and set your gun down, how far did they have to come before the shooting commenced? A. They would have to come fifty yards, something near that. When I set the gun down and got beside the tree they were fifty yards from me, and when I went out there they never moved their guns, they both just had them pitched in front of them — I mean by pitched, having them laying across their knees with the barrels in front of them. I stood there beside the tree and north of the tree towards the bridge. When Mr. Wagnon raised his gun as if to present it to shoot, the wagon was the least bit this way from the tree, and when they came up there I was in just as plain view as my hand is, and they came on up, yanked a little to the right — I mean by yanked that they were triangled to the right, and that they were a little towards Marshall. They had not got even with me when the shooting begun. I expect they lacked ten or twelve or fifteen or maybe twenty feet of being even with me when the shooting begun, and they were not even then with the big oak on the opposite side because that is mighty near direct; then Mr. Wagnon made a move with the gun as if to present it to shoot me and I fired, and they never fired a single time, but they done their best to fire. . . . Wagnon had fell at the time he got just opposite with me and Olive didn't fall — Olive went a little piece further before he fell. . . . I said before this tree was about fifteen feet from the rockway, and that is what I would say now, and a little more than twenty feet from the dirt road. The rockway is maybe twelve feet wide. . . . Wagnon was getting his gun direct up this way as to shoot me. He did not have the gun to his shoulder, never did get it to his shoulder; he was coming up with that gun just that way, and I won't say which side it was on, but he brought the gun in that position as to shoot and I fired. I won't say that at the time I fired he had the gun with the butt of the stock against his stomach. He did have it grasped in both hands, and then I fired and shot right at his head as well as I could tell. He looked to me like he was coming around to look at me. He was not sitting with his back to me; he was sitting with his side more *Page 122 to me than anything else. They were sitting side by side on the spring seat, and Wagnon was the near man to me and was sitting just like I am and I couldn't see how Olive had his head because Wagnon was between me and him. I said I wouldn't say whether he did or did not have his face directly to me, and I won't say because I could not tell, because to the best of my judgment he was going to whirl and shoot me. . . . I said he had his gun going up to one shoulder or the other and was coming just this way with it as he got up to me. It looked to me like he had his face and head towards me as he made this threatening demonstration, and I shot at his head. It is hard for me to tell where I shot him next. I really don't know how many shots I shot at Mr. Wagnon before I shot at Jim Olive. . . . I suppose Olive got some of these shots himself (referring to the shots fired at Wagnon). No doubt but what he got more than two loads. I can't say whether I did or did not shoot him three times. I didn't then turn and shoot Mr. Olive. I was ready then and I did shoot Mr. Olive. I said that I think he had got part of his shot. I was shooting at Mr. Olive anywhere I could see him. Mr. Olive's face was turned just like mine is now. He was coming just like I said, him and Mr. Wagnon, side by side. Olive could not have been facing me when I shot the first shot, because Bud Wagnon was between me and him, and if Mr. Olive turned in his seat 1 don't know it. After Wagnon got out of my sight it looked like Olive was trying to shoot because he was triangled this way. I did not shoot at Mr. Olive until Mr. Wagnon fell, and I could not directly shoot at him until them. Mr. Wagnon had fell over backward, back over the seat, and then I shot at Mr. Olive. Q. Was he facing you then? A. No more than this; was trying to use his gun."
1. The case was tried from its incipiency to its close upon the general theory that Olive and Wagnon were making common cause against appellant in whatever they did against him with reference to the prosecution, threats and kindred matters. The prior transactions between appellant and Wagnon and appellant and Olive, and their common enmity towards appellant permeate this entire record. It is a part of the State's case, and part of the appellant's case. These matters entered into the trial of the case from its beginning to its end, and gave coloring to the facts, whether viewed from one standpoint or the other. So that the case can not be viewed intelligently or fairly from any other standpoint. The State's theory, as before stated, was that in view of this condition appellant lay in wait for the two antagonists or intentionally placed himself in position where he could kill them. Appellant's theory was that he had to arm himself thoroughly to protect himself upon an accidental meeting against an attack of either or both, and that in going to the mill for the purpose of 'phoning the sheriff, the meeting was purely accidental, *Page 123 and that he tried to avoid the difficulty by getting off the road so that his enemies might pass and no difficulty ensue.
Charging the jury the court submitted all issues of the case and the law of murder upon the theory that the difficulty alone occurred between Wagnon and appellant, except at the close of the charge on self-defense the jury were instructed as follows:
"If the jury believe from the evidence that it reasonably appeared to the defendant at the time of the killing that the deceased F.T., or Bud, Wagnon, and Jim Olive, were acting together viewed from the standpoint of the defendant and that Bud Wagnon or Jim Olive made a demonstration to shoot the defendant with a gun, then the jury are instructed that the defendant had a right to shoot and to continue to shoot until all danger as it reasonably appeared to defendant was passed, and in this connection you are charged that in no event was the defendant bound to retreat in order to avoid the necessity of killing the deceased."
If he had a right to defend against both, the jury should have been plainly told so, and if they were acting together in seeking to take his life, and that under those circumstances he had a right to the law of self-defense against both as much as he would against either, and that he had a right to kill both, or at least to continue shooting until all danger had reasonably ceased from either or both of them. This phase of the charge which undertakes to authorize appellant to defend against the attack of two was not sufficient and fell far short of the law applicable to the circumstances attending the tragedy. Nowhere else in the charge does the court undertake to instruct the jury as to appellant's right to defend against the combined attack of the two deceased. The court charges upon the law of threats, but in giving that charge he limited it to the threats made by deceased Wagnon. Where threats are in the case the defendant is entitled to a charge under the law of self-defense as against the threats under the act or demonstration or threatened demonstration on the part of his assailants as a part of self-defense independent of the general charge in regard to self-defense. McMichael v. State, 49 Texas Crim., 422; Swain v. State, 48 Tex.Crim. Rep.. The Swain case has been followed in all subsequent cases, and in fact this law is settled by the statutes. Error was assigned upon this phase of the charge, among other things, in that it limited the right of appellant's self-defense against the threats and demonstration on the part only of Wagnon. This was an important matter. Appellant's testimony made it more apparent than did that of Chadwick, the State's witness, but Chadwick testified that before the tragedy he saw both of the parties in the wagon get their guns from under the cover of the wagon-sheet and lay them across their laps; that one of them, Wagnon, "had the stock up sorter under his arm, like along across his leg that way." This witness said he could not tell exactly how Olive had his gun, because it was in front of him, *Page 124 and he could not see between them. Olive was on the right side and Wagnon on the left as they sit in the wagon. This witness further says: "I was right along with them till they turned their back to get the guns. I taken it to be a wagon-sheet, and I never examined it to see what kind it was. They had their guns covered with the wagon-sheet, for I didn't see the guns till they got them out. They hadn't quite got to the bottom when they got their guns — didn't stop the horses — while the wagon was going on they uncovered the guns. Mr. Wagnon uncovered the guns. I seen him pick up one of them and Mr. Olive reached and got his. When Mr. Olive reached back and got his, he put it on his lap, I reckon, and I could not see it any more. It looked to be a medium length gun, and after he reached back and put it over in his lap I could not see it any more because he was sitting up there driving. I was behind them when they reached back and put the gun in front of him — twelve or fifteen feet — and he put it in his lap, and Mr. Olive put his just like I showed you with that crutch." Further testifying about this, speaking of the embankment road that had been thrown up from the foot of the hills to afford a roadway when the creek had an overflow, the witness said: "That rockway is over there in little Cypress. I call it a rockway — made for wagons to travel on in high water in Cypress bottom, and it extends from the foot of the bridge to the foot of the hills across the bottom, and that rockway is pretty near a quarter of a mile long. I traveled along with them until we got pretty near to the rockway, and then they reached back and turned a sheet of some kind back and picked up their guns and I dropped back a little piece behind them. That was before they had gotten into the bottom, about 100 or 125 yards before they got on the rockway. Then I traveled between thirty and thirty-five yards behind the wagon — they did keep driving, just walking along and I was on my pony behind them." At this point he made the statement that Wagnon had the stock of his gun up under his arm. Appellant testified in this connection that when they discovered him that they made a demonstration to elevate their guns and he fired, using an automatic shotgun, and if they had not made a demonstration he would not have fired. That he left the public road where he was traveling in order to avoid meeting them. Under this state of case, in view of the numerous threats that had been made by the deceased parties, the court was in error in not submitting to the jury the law applicable to the threats and demonstration of both parties viewed from that theory of self-defense.
2. Again, the court gave in charge to the jury the law applicable to manslaughter. There is a contention by the State that manslaughter was not in the case. It is sometimes difficult to tell whether manslaughter, under a given state of facts, is in the case or not, but wherever that question arises the doubt should be solved in favor of the accused and the charge on manslaughter given. This matter *Page 125 was, to some extent, discussed in Brown v. State, 54 Tex. Crim. 121, where that doctrine was laid down. That rule is, however, the correct one, and followed in the decisions in this State.
If appellant waylaid his adversaries for the purpose of killing them as they passed along the public road and did kill them, he was guilty of murder in the first degree. Any mention of murder in the second degree we deem unnecessary here to discuss. If appellant accidentally met the parties in the road and to avoid trouble with them and of being killed himself, or being instrumental in bringing about a fatal trouble, in view of the transactions and matters occurring before, left the road and went thirty-five to fifty yards away to a tree in the bottom, and the deceased parties when they saw him had their guns and one or either made a move as if to raise the gun and appellant fired, the issue of manslaughter is suggested. Suppose the jury should believe that they did not intend to kill appellant, but anticipating trouble with him, they had prepared themselves in advance to resist any attack he might make, and they were passing along near him and at an unfortunate time raised the gun without seeing him, and he fired and killed them; or suppose they did not in fact raise the gun at all, but had the gun in the position described by the witness Chadwick, and he shot and killed, and before they had made any such overt demonstration as the jury might believe would indicate they intended to execute their threats or to kill appellant? This would suggest the issue of manslaughter. It is, as before stated, sometimes a difficult matter to draw the line of demarcation between manslaughter and self-defense as to where one ends and the other begins, but if the lines are not well marked and it is difficult to tell, then the law of manslaughter should be given. As was said in the Brown case, supra:
"In other words, the right of appellant to resist the attack or anticipated attack by two antagonists, under the circumstances, would be as cogent from the theory of manslaughter as it would be from the standpoint of self-defense, provided, however, that he believed that such attack was made for the purpose of inflicting chastisements causing pain or bloodshed. The court recognized this doctrine as applicable to the law of self-defense, and so charged the jury, coupled with the further proposition that his life must be in danger or his body of serious injury in order to justify the killing. It is sometimes a little difficult to draw the line, where the question or serious bodily injury is involved, between self-defense and manslaughter, and where these propositions are in the case, the court should definitely instruct the jury so that they will understand where one ends and the other begins, and be able to draw the line of demarcation from the facts. So it is clear, as we understand the facts and the law, that if Johnson alone provoked the difficulty with a view of inflicting severe chastisement, as developed by the facts, upon appellant, he would have the legal right to have this phase of the law submitted *Page 126 as bearing upon manslaughter. If appellant, under the circumstances, thought the deceased was bringing on the difficulty to be joined in by Miller, and that the difficulty was to proceed upon the theory of both of them giving him a beating, he had the right to have the law of manslaughter charged from this standpoint." Again, it was said in the same opinion: "As before stated, the court recognized the doctrine of self-defense from the attack or anticipated attack of the deceased and Miller, but did not instruct the jury in regard to this phase of the law as applicable to manslaughter."
In the hurried and rapidly transpiring of events in a deadly conflict, as this record shows this to have been, the participants have not the time to sit down and calmly calculate the facts and environments as the jury does in the light of subsequent events or at a time remote from the tragedy. Appellant's life had been threatened by both of the deceased parties, who were shown to have been determined men, and who would execute threats when made. From his viewpoint of it he was afraid of them; so much so that he failed and refused to attend his trial for carrying a pistol where the two men were witnesses against him. That accidentally on the same evening he met and gave them the road and turned to a place of safety. As they approached they were armed with their guns in position for ready use. There were two against him. In this condition of the case the mind would be easily excited beyond capability of cool reflection. The slightest movement on their part, under the strained circumstances, whether innocent or intentional, might have a tendency to inflame, terrorize or enrage appellant's mind to such an extent that it would be incapable of cool reflection, and place the facts in such condition that the law of manslaughter was demanded. We do not view this case from the standpoint of the deceaseds, but from the standpoint of the appellant. It is his mind, his purpose and his intention that were to be weighed by the jury, and they must look at it as he looked at it and as he understood the situation. The jury, in the light of events transpiring at the trial, with all the testimony that had been gathered together before and after the homicide in front of them, might have thought that appellant had no right to view the matter as he claims that he did view it, but that is not the criterion. The rule is, that it must be viewed from the standpoint of the defendant as he viewed it at the time of the transaction. He may be guilty of a cold blooded assassination and the jury found the facts against him, but that does not change the rule of law which is as old as our jurisprudence, that every defendant on trial for his life or liberty is entitled to a charge from his viewpoint of the case. The State has the right to have that side of the case presented, but the appellant has also the legal right to have his side of the question legally and fairly presented.
This case presents three questions where a charge should have been given to the jury to the effect that appellant had the right, first, to *Page 127 defend against apparent danger as against both of the deceased parties; second, he had the legal right to have the law of threats charged favorably to him as against both the deceased parties; third, he had the right to have manslaughter charged to the jury, from the acts of both parties not only occurring at the time, but having occurred previously and shedding light on the occurrences at the time of the homicide as adequate cause to render his mind incapable of cool reflection. The court did not so charge. The whole case involves the action of both parties and their acts can not be segregated.
3. The court charged the jury in regard to self-defense, among other things, as follows: "In every case in determining whether the defendant acted from a reasonable expectation or fear of death or serious bodily injury from the deceased, it is proper for the jury to take into consideration the relation of the parties, relative size and strength of the parties, and previous conduct, declarations or threats, if any, of the deceased, and all other circumstances, if any, in the case." This charge limits, as did the other charges, these matters to the deceased Wagnon, as his was the only name mentioned in the indictment. Error is also assigned against this charge because it required the jury to take into consideration the relative size and strength of the parties. There are several decisions holding that in a case like this such charge is error. Hickey v. State,45 Tex. Crim. 297; Brady v. State, 65 S.W. Rep., 521; Warthan v. State, 41 Tex.Crim. Rep.; Bracken v. State, 29 Texas Crim. App., 362; Steagald v. State, 22 Texas Crim. App., 464; Hackett v. State, 13 Texas Crim. App., 406. There are quite a number of other cases, but these are sufficient to illustrate the rule. It is not always error to give a charge with reference to the relative size and strength of the parties, but the character of case where such charge is authorized will readily suggest itself. If a larger party is engaged in a personal encounter with a smaller man, upon trial it would be a fact in his favor, that his antagonist was a larger and stronger man and one more athletic, but that rule does not apply where men are shooting at each other. Under the facts of this case these men were from thirty-five to fifty yards apart. All of them were thoroughly armed and equipped for the most deadly encounter. The deceased Wagnon had a Winchester; Olive had a gun, as did appellant. In fact, appellant seems to have had two guns. We do not understand how, under the circumstances stated, that the relative strength or size of the parties to this combat could be a criterion of appellant's self-defense. It was an unnecessary abridgement of his right and under the circumstances detailed should not have been given. Any of the parties were sufficiently large and strong to handle and fire a gun. A double-barrel shotgun or a Winchester rifle may be as fatally used in the hands of a very small man as in the hands of an athlete. While this question may not always be cause for reversal, yet charges of this character should not be given in cases *Page 128 like the one in hand. In some cases it would be beneficial to give a charge of this character for the defendant. In others it may be very detrimental, for the jury might understand that if appellant was a larger man that the accused, his right of self-defense might be abridged by reason of his strength and size, although they were fifty yards apart and firing at each other with double-barrel shotguns or Winchesters.
4. It is insisted that the court was in error in refusing and failing to give in charge article 676 of the Penal Code. This article reads as follows: "When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapons or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." The facts in this case call for a charge under this statute. It is made a legal presumption, or as some of the decisions put it, an absolute presumption of law that the design of the deceased was to inflict the injury indicated, and it is further held that this presumption is imperative to juries as well as to courts, and when applicable must be given in charge to the jury. This question was thoroughly adjudicated and announced in Kendall v. State, 8 Texas Crim. App., 569, and has never been questioned so far as I am aware. That the weapons in the hands of the deceased parties were deadly, is not debatable. That they had put them in position for use is not to be questioned, for this was proved by the State. That demonstrations had been made by them is shown by the evidence. Whether the court believed appellant's testimony or not, it was before the jury as evidence and appellant was entitled to a charge on this statute. He properly reserved his exception in motion for new trial.
I wish to close this dissenting opinion with an extract from the opinion of Judge Clark in the case of Rothschild v. State, 7 Texas Crim. App., 519:
"Courts can not be too careful, especially in trials of the graver felonies, in awarding to defendants the full measure of their rights under the law, and in restricting the prosecution within the limitations enjoined by law. The State in her wisdom and humanity has placed guarded restrictions around the trials of her citizens, and has guaranteed to them the enjoyment of certain rights and privileges, even though they stand under grave accusations for a violation of her laws. And when she comes into her own courts, in the person of her law-officer, and demands the forfeiture of the life or the liberty of the citizen, she is entitled to no more favor or consideration than the humblest citizen in the land. Such is her own law, and she would not change it if she could."
A fair trial is guaranteed to the accused, guilty though the State's evidence may show him, and guilty though he be from that *Page 129 standpoint, yet he is entitled to a fair presentation of the law applicable to the facts introduced on the trial. The State is claiming the life of the appellant, and from the standpoint of the State's case with show of reason. Viewed from the standpoint of appellant, it was an accidental meeting with two determined, bitter enemies who had threatened his life, and replying to offers of reconciliation made by him, stated they would only settle their difference in no other way than with a deadly missile discharged from firearms. In this condition of the case he met these antagonists. He gave them the public road, turned to one side, and as they approached him they made preparation to carry their threats into execution, and under those circumstances he fired in defense of his person. His enemies were both armed with guns. The State's witness Chadwick supports appellant's testimony to the extent of showing that some 125 yards or such a matter before reaching the point where the tragedy occurred they had uncovered their guns from the wagon, Olive placing his gun across his lap, and Wagnon placing his with the stock of the gun under his arm. Chadwick was unaware that they had the guns until he saw them uncover them. With their guns in this position appellant met them coming down the public road, and to avoid a deadly conflict with them turned away. The jury may not have believed this and did not. The trial court evidently discounted it. My brethren, in their opinion discounts it, and it occurs to me that appellant's matters, viewed from the standpoint of the charge, have been minimized because of the fact that his testimony has been discredited by those who have been called to try and pass upon his case, and not because the evidence does not raise the issues. As I stated in the beginning of this dissent, no candid reader can read this record without discovering the fact and reaching the conclusion that the action of these two men was that of one man. They were brothers-in-law. Their enmity was a common enmity against appellant. They made threats against his life; refused reconciliation; they were together, both armed, and, under appellant's testimony above, both were making demonstrations to fire. Under these circumstances this charge fails to submit the law of the case. There is no point in the record that fails to show that these two deceased parties were acting together. If appellant went for the purpose of waylaying them, he did it knowing that he had two antagonists. If it was an accidental meeting, the two antagonists were in front of him armed with deadly weapons. They both moved at the same time, making demonstrations with their guns, yet appellant has been tried on every issue of this case except an incorrect charge in regard to a perfect right of self-defense at the very heel of the charge, as if he only had legal rights against Wagnon. Manslaughter was thought to be in the case by the trial judge, and he charged it from the standpoint alone of killing Wagnon. Threats were in the case made by both of them. They *Page 130 were acting together, yet the charge only submits the right of self-defense against the threats of Wagnon. The self-defense was against both, and yet the court after giving the charge on self-defense as against Wagnon, at the end gives a charge, which has been discussed, seeking to link the two together alone from that standpoint of the case. However much the court may discredit the evidence for the accused, this will not justify failure to properly submit the issues in the charge.
I dare say that the reports of this State are such that this case will stand isolated and alone in holding that a general charge on the law of self-defense against apparent or real danger supplies the place of the legal presumption arising from the use of deadly weapons, as provided in article 676 of the Penal Code. All the decisions where that question has even come before the court have laid down the rule and it is statutory that it is fatal error to a conviction that it has not been given when deadly weapons are used by the deceased, the issue being self-defense. I have thought and still think that a party charged with crime is entitled to a fair, affirmative presentation of the issues that are favorable to him when the State is undertaking to take his life or liberty at the hands of the jury. This man has not had that character of trial. I therefore can not agree with my brethren in affirming the judgment.
ON REHEARING. June 23, 1911.