At a former day of the present term the judgment herein was affirmed. The case is now before us on motion for rehearing. Through inadvertence or oversight the opinion states that appellant was convicted of murder in the second degree. The jury found appellant guilty of manslaughter, and assessed his punishment at three years confinement in the penitentiary. In order to keep the record straight this correction is made. *Page 135
The charge of the court is criticised in that it fails to submit the law of self-defense independent of the law of threats. The charge in regard to threats is further criticised in that it fails to submit the law in this regard, to serious bodily injury and authorizes the jury to believe that the threats were made, in order that appellant may have the benefit of the law in that respect. A more careful review of the record and the matters involved has led us to the conclusion that this contention is correct. An inspection of the charge of the court discloses that the law of self-defense was not given in charge to the jury except in connection with the law of threats. Wherever the question of self-defense is in a case, the accused is entitled to the law applicable to that phase of the testimony independent of the law of threats. The authorities upon this proposition are numerous. The law of self-defense should have been given independent of threats, and especially with reference to apparent danger.
It is deemed unnecessary to go into anything like a full statement of the evidence. It seems the parties met in the road; that deceased was on his wagon, and appellant walking driving some horses, which were loose at the time the parties met. Appellant's horses went on in the direction of the deceased, meeting him, and walked up close to the horses of deceased. At this time deceased spoke to appellant and said: "Get out of the road, you son-of-a-bitch, or I will fill you full." Upon making these remarks deceased threw his hand to his side, leaving the impression upon appellant's mind that he was about to draw his pistol; that deceased was holding his lines in his left hand. At this juncture appellant fired two shots, resulting fatally to deceased. Appellant also testified in this connection that he had not seen the pistol of deceased at the time he fired, but knew the fact that he carried a pistol and had seen him with a pistol on several occasions, and he thought at the time deceased made the gesture he was reaching to get the pistol when he shot deceased. It is unnecessary to state other evidence. Appellant was entitled to a charge on the law of self-defense from the standpoint of apparent danger. The court failed to charge on this phase of the law. It is unnecessary to repeat the charges of the court on these different phases as they are sufficiently stated in the original opinion. In support of this holding see the following cases: Fuller v. State, 95 S.W. Rep., 1039; Nalley v. State, 30 Texas Crim. App., 456, 17 S.W. Rep., 1084; Sutton v. State, 2 Texas Crim. App., 342; Marshall v. State, 40 Tex. 200 [40 Tex. 200]; Tillery v. State, 24 Texas Crim. App., 251, 5 S.W. Rep., 842; Boddy v. State, 14 Texas Crim. App., 528; Short v. State, 15 Texas Crim. App., 370; Ware v. State,49 Tex. Crim. 413, 92 S.W. Rep., 1093.
The court's charge submitting the issue of self-defense, viewed from the standpoint of threats, is also quoted in the original opinion, and it is unnecessary here to repeat it. An inspection of that charge discloses the fact that it is insufficient in that it requires the jury to find *Page 136 that threats were in fact made before appellant would be justified under the law of threats or that he had the right to kill. The threats made by deceased were communicated. If appellant believed threats which had been communicated to him had been made under the facts attending the meeting of the parties and the action of the deceased at the time, he would be justified in acting in self-defense. The jury, in the light of the entire testimony as detailed to them, and in view of subsequent matters, may not have believed that, as a matter of fact, threats were made, but appellant's legal rights did not demand that they believe the threats were in fact made. He had the legal right to act upon the communicated threats if he believed they had been made by deceased. The charge in this case is similar to that in the case of Mitchell v. State, 50 Tex.Crim. Rep.. The charge in that case was held to be erroneous. See also Buckner v. State, 55 Tex.Crim. Rep., 117 S.W. Rep., 802; Huddleston v. State, 54 Tex.Crim. Rep., 112 S.W. Rep., 64; Lockhart v. State, 53 Tex.Crim. Rep., 111 S.W. Rep., 1026; Cohen v. State, 53 Tex.Crim. Rep., 110 S.W. Rep., 66; Bonner v. State, 29 Texas Crim. App., 223, 15 S.W. Rep., 821; Pratt v. State, 50 Tex.Crim. Rep., 96 S.W. Rep., 8; Fisher v. State, 50 Tex.Crim. Rep., 98 S.W. Rep., 852; Watson v. State, 50 Tex.Crim. Rep., 95 S.W. Rep., 115; St. Clair v. State, 49 Tex.Crim. Rep., 92 S.W. Rep., 1095.
Appellant also insists there was error in the charge in that the court did not apply the law fully to the facts in regard to self-defense and threats. The particular portion of the charge criticised reads as follows: . . . "It must reasonably appear from the acts of the person deceased, that the purpose and intention of such person was to commit murder, or to inflict serious bodily injury." The statute reads thus: "It must reasonably appear by acts or by words, coupled with the acts of the person killed, that it was the purpose and intent of such person to commit the crime of murder," etc. In the original opinion it was stated that the charge given was thought to be sufficient, at least not injurious. We are of opinion that we were in error. The facts have been sufficiently stated to show that the charge should have embraced the idea of the words as well as acts on the part of the deceased. The testimony is to the effect that at the time deceased spoke to appellant he said, "Get out of the road, you son-of-a-bitch, or I will fill you full," and then made a motion as if to draw a pistol. This was the theory of appellant's self-defense. Under this particular state of facts the charge on self-defense should have embodied not only the acts of the deceased but his words accompanying the acts. This is the statutory language and requirement, and as stated both phases are peculiarly applicable to the facts in this case in which, under the testimony of appellant, there was both the act and accompanying words illustrating the purpose and intent of the deceased, *Page 137 viewed from appellant's standpoint. Upon another trial this phase of the statute should be embodied in the charge.
The same charge is also criticised in that it fails to apply the law of threats to serious bodily injury as well as to take life. Upon another trial this phase of the law should also be included in the charge.
Because of these errors and omissions in the court's charge, in the matters specified, the affirmance will be set aside, the rehearing granted, and the judgment will be now reversed and the cause remanded.
Reversed and remanded.