At the last term of this court this cause was reversed and remanded, and the State has filed a motion for rehearing, contending that we were in error in the following particulars. First, he says there is no testimony that Lynch, if he shot, shot at any person except Raymond Coulter. This record does not disclose that Raymond Coulter had had any trouble prior to that date, but it does disclose that on that day appellant's father, also the father of Raymond Coulter, had had a difficulty with Mr. Lynch, and it was the State's contention, Hinson Coulter with his boys, were on the way to the mill to renew the difficulty. According to the testimony offered in behalf of the defendant, Raymond Coulter had fired twice at some guineas; when deceased Lynch began to curse and shot in the lot where Raymond Coulter, appellant and his father were all situate. Hinson Coulter, the father, testified: "Henry and Raymond and Amos and Elisha War all went into the lot together. I heard Raymond shoot at some guineas there two or three times in his ma's garden. The lot fence and the garden fence was all one string. It joins and one string makes both strings of the lot and the garden. I don't whether it was before Raymond — it must have been just as he shot the last time — I heard somebody cursing in front of the lot towards the big road. I turned right around and stepped to the wagon tongue, and Raymond was coming up there, and we were nearly side by side, and I saw Arch, and just as we got in full view of him he shot, and it knocked up the dust between mine and Raymond's feet, and I just ducked back."
Henry Coulter, appellant, testified, he had no pistol and did not shoot. He testified about Raymond shooting at the guineas; he then heard Mr. Lynch cursing and Raymond went in that direction; that pa (Hinson Coulter) went up to the wagon with Raymond, and his father ducked when Lynch shot in the lot the first shot.
Mrs. Evy War testified about hearing the shots in the back of the lot *Page 520 and deceased, her uncle Arch, then began cursing, saying: "He just grabbed his hat and popped it against his leg and said, `Come on out here, you G_d d_d cowardly sons of b___s I am out here waiting for you, I am going to kill the last G_d d__n one of you.' He just kept swearing and cursing, and I said to mama, I would make him go to the mill and behave himself, and I holloaed and told Uncle Arch to go on back to the mill and behave himself, and he said, `You needn't say a G_d d_n word,' and about that time he pulled his pistol and shot. He shot right straight in the lot, looked to me like, under the shed."
Mrs. Coulter testified to her husband and the others being in the lot, and that Raymond fired at the guineas, when Mr. Lynch commenced cursing and went that way: "He just reached up and grabbed a hold of his hat and slapped it against his hip that way (indicating) and holloaed and told them they needn't be throwing their dares the `G_d d__n cowardly sons of b___s, come out there he was out there ready for them and waiting for them.' And I ran out to the gate and holloaed and said, `Arch, my folks ain't bothering you, they are going to the field to work, you go on back to the mill.' And he said that I needn't say a word to him, he aimed to kill every G_d d__n one of them when they come on through that lot. He (Lynch) shot right towards the lot."
Now if as the State contends appellant knew of the difficulty between deceased and his father, and did not know of any trouble between Raymond and deceased, when this shot was fired, would not the natural and only inference he could draw, be that deceased was shooting at his father, the person with whom he had the difficulty; would it not so appear to him, and the State's able counsel are mistaken in asserting that the evidence, and all the evidence, shows that deceased fired the first shot (if he shot) at Raymond Coulter and no other person.
Again, counsel for the State inists we erred in holding that the charge on self-defense was erroneous in limiting appellant's right to act, if it reasonably appeared to Raymond Coulter that deceased was about to shoot him, Raymond Coulter, etc. Appellant can not be bound by the way the matter appeared to Raymond Coulter. The charge should have instructed the jury that if it reasonably appeared to him, Henry Coulter, that deceased was about to or had made an attack on Raymond Coulter, his father, etc., he would have the right. Every person is to be judged as it may appear to him and not as it may appear to some other person. If he acted with Raymond Coulter in the commission of an offense, of course, he would be bound by the act of Raymond Coulter, but in this case it was an issue as to whether he did anything; but if he did shoot, but at the time it reasonably appeared to him that deceased was about to slay his father or brother, he would be guilty of no offense, although his brother might not have so viewed the matter. If a conspiracy was shown beyond doubt the rule might be different, but in this case appellant earnestly insists he was not acting with Raymond *Page 521 Coulter, and there is testimony supporting him, making that an issue in the case.
The motion for rehearing is overruled.
Overruled.