Appellant, through his counsel, in a motion for rehearing showing much research and presented in a forceful oral argument, renews his contention that the trial court was in error in not sustaining the appellant's position touching the charge of the court on the law of self-defense. The trial court, in instructing the jury, protected the right of the appellant to an acquittal on the ground of self-fense upon the finding of the jury from the evidence that he killed the deceased under an apprehension or fear of death or serious bodily injury. As viewed by the trial court and by this court, the facts in evidence fail to present a showing that at the time the fatal shot was fired the deceased was making an unlawful and violent attack upon the appellant; and in the absence of such showing, the instruction given to the jury was proper and adequate to present the appellant's defensive theory. In the motion for rehearing we have been referred to many cases, among them the following:
The case of McLendon v. State, 66 S.W. 553, has no more than confirmed the conceded principle that circumstances might arise in which one would be justified in taking the life of his adversary who, viewed from the standpoint of the appellant, was about to inflict upon him death or serious bodily injury.
Andrews v. State, 275 S.W. 1024, is not regarded as in any sense supporting the appellant's contention. In the course of the opinion, the following remarks are made with reference to the case of Britton v. State, 95 Tex.Crim. Rep.: "It seems obvious that the expressions in the case mentioned do not warrant the conclusion that an intentional homicide may be justified where it is intentionally inflicted in resisting an assault, the nature of which does not create in the mind of the accused an apprehension of either death or serious bodily injury, unless it appear that he had first used all other reasonable means, save retreat, to avert the injury. If the assault made *Page 461 by the deceased was not of a nature to create in the mind of the appellant, as viewed from his standpoint, an apprehension of death or serious bodily injury and did not create such apprehension, and in resisting such assault, appellant intentionally used a weapon which, in the manner of its use, was deadly, and killed the deceased without first resorting to other reasonable and available means of protection save retreat, the jury might have been warranted in taking into account the assault made by the deceased to mitigate the offense or reduce its grade, but not to justify the homicide. See article 1107, P. C., also Branch's Ann. Tex. P. C., sec. 1919."
In the Hathcock case, 281 S.W. 859, cited by the appellant, the facts are not sufficiently comprehensive for us to fully understand the state of the evidence upon which the court passed. However, in the opinion reference is made to the case of Holcomb v. State, 98 Tex.Crim. Rep., in which the facts are set out and in which the conclusion reached is deemed in accord with that reflected by the original opinion in the present appeal.
From the case of Shutz v. State, 96 Tex.Crim. Rep., the concluding paragraph is quoted as follows: "With uniformity, the decisions of this court affirm that the right of self-defense applies to any unlawful attack. See Britton v. State, 95 Tex.Crim. Rep., 253 S.W. 519, and cases collated. The nature of the assault against which the defense is made and the means used, as well as the character of the resistance made, are matters to be considered by the jury in determining the grade of the offense, if any, and the extent of the punishment."
In the present instance, the appellant testified as follows: "I shot Mr. McCollum because I thought he was going to come on to me with a knife in his hand; going to hurt me or maybe kill me. I saw what I took to be a knife in his hand. He was standing over at the car cleaning his feet off with something I took to be a knife. The first time I shot, I shot over him to see if it would stop him. I could have hit him the first time I shot. I was in about four steps of him. I did not shoot any more after he turned and started to leave."
On cross-examination appellant testified: "I intended to shoot him the second time. He was mighty near in reaching distance when I shot. I might have stepped back one step. I don't remember whether I did or not."
One may take the life of his adversary in resisting an assault threatening death or serious bodily injury. See article 1222, P. C., 1925. Homicide is likewise justifiable in resisting *Page 462 a violent and unlawful attack upon a person, although death or serious bodily injury is not threatened, provided before taking life under such circumstances all other means must be resorted to for the prevention of the injury and the killing must take place while the person killed is in the very act of making the unlawful and violent attack. See article 1224, P. C. One is not bound to retreat to avoid the necessity of killing his assailant. Article 1225, P. C. But the attack upon the person of an individual in order to justify homicide must be such as produces a reasonable expectation or fear of death or some serious bodily injury. Article 1226, P. C.
In support of the original opinion, reference has been made to the following precedents: Forest v. State, 300 S.W. 51; Andrews v. State, 275 S.W. 1024; Davis v. State,117 Tex. Crim. 377; Britton v. State, 95 Tex.Crim. Rep.; Bush v. State, 40 Tex.Crim. Rep..
The various cases have been examined but a further discussion of them is not deemed necessary. In this, as in all other cases, the evidence is of primary importance in exhibiting the issues of fact and law controlling the appeal. From the evidence no theory of defense other than that upon which the jury was instructed is perceived. Admittedly, the deceased was shot when he was not near enough to the appellant to touch him. No weapon was seen in the hands of the deceased at the time. No declaration or threat to use a weapon is imputed to the deceased by the testimony. The appellant was armed with a deadly firearm which was also usable as a bludgeon. From his testimony the appellant apparently concluded that from the acts of the deceased prior to the time he approached the appellant and from his conduct while approaching him, the appellant regarded himself as subject to an attack threatening his death or serious bodily harm to his person. In an appropriate manner the court instructed the jury that if the deceased was making such attack, or if, viewed from his standpoint, appellant believed that he was in danger of life or serious bodily harm at the hands of the deceased, it was the right of the appellant to resist the attack even to the taking of the life of the deceased. The verdict of the jury implies that they did not believe that the appellant was justified under the circumstances to regard himself in danger of life or serious bodily harm at the hands of the deceased. The appellant contends that his rights were unduly restricted by the failure of the court to instruct the jury that the appellant had a right to use as much force as was necessary, viewed from his standpoint at the very time of the shooting, to repel any assault made by the deceased. *Page 463
In the motion for rehearing, the view of the appellant is stated as follows: "It was not the contention of Appellant in the trial court, nor is it his proposition here, that he had a right to kill the deceased in the defense of himself against a simple assault and battery, but he does assert that he had a right to take the life of the deceased in defending himself against such an attack when all other means, save retreat, had been resorted to by him for the prevention of the assault and injury."
The proposition of appellant's counsel embraces all the elements of articles 1224 and 1226, supra, to which reference has been made above, but the evidence or circumstances which would make the proposition tenable upon this appeal, as we have attempted to demonstrate in the original opinion, are entirely lacking.
After the most careful examination of the record of which we are capable, we are impressed with the view that the motion for rehearing should be overruled, which is accordingly ordered.
Overruled.
ON SECOND MOTION FOR REHEARING.