ON MOTION FOR REHEARING.
LATTIMORE, Judge.— After charging on self-defense in paragraph eight of his charge, the trial court followed same, apparently without request therefor, with a charge in paragraph nine upon self-defense against an attack less than deadly, —coupling paragraphs eight and nine by saying:
“You are instructed as part of the law of self-defense * * * that if you believe that the defendant shot J. D. Sheen as a means of self-defense, as that term is described in this paragraph of the charge, believing at the time he did so that he was in danger of receiving an unlawful injury of a milder nature at the hands of the said J. D. Sheen and Elmer Sheen or either of them, and that the defendant resorted to all other means at hand, as it reasonably appeared to him at the time, for the prevention of the injury and that the defendant acted while the said J. D. Sheen and Elmer Sheen, or one of them, was in the act of making an unlawful assault upon him, or if you have a reasonable doubt as to whether the killing of J. D. Sheen occurred under such circumstances, then you will find the defendant not guilty.”
Appellant earnestly contends that the part of the charge quoted, together with other parts of like nature and effect, was not applicable to the facts, and placed an unwarranted limitation on his right of self-defense, and was calculated to lead the jury to believe that he had no right to use his pistol until he had tried all other means to defend himself.
*250We need not say at length that a charge should fit the facts of a case from the standpoint of the accused as well as that of the State. The facts in this case show that appellant shot two brothers, — one to his death. From the standpoint of the State, the brothers, unarmed, remonstrated with appellant for opening a gate and riding through on land they had rented, and for his conduct toward their father; and that after appellant got on his horse to ride away, deceased, — the younger of the two,— said “Are we going to let him go on like that?” and Elmer Sheen, the other brother, replied “Yes, let the G— d — n s— of a b go.” When Elmer said this appellant pulled a pistol, turned his horse, came up with the pistol and shot Elmer in the neck. Elmer stumbled, and was shot again in the back as he was falling, but before he was shot the second time appellant had turned and shot deceased, who was further away than Elmer and in a different direction. Deceased was shot in the head and died. Elmer testified to the above facts among others as a witness for the State, and said neither he nor his brother made any attack upon or attempted to strike appellant on said occasion; and that he, Elmer, had a pair of pliers in his pocket which were never taken out, and that deceased had no club in his hand, and that Elmer never caught hold of the bridle of appellant. In other words, according to the State’s view, the killing was either upon malice or passion caused by the remark made by Elmer to his brother just before it was claimed appellant drew his pistol and shot, and the State made no claim and introduced no evidence to show any attack of any character by either of the Sheens upon appellant.
Appellant’s story was altogether different. He said he had been using a road leading through Roe’s land to Dye Mound, which road had been open and used for more than thirty years until the Sheens rented said Roe land. He testified to the troubles over a gap on this road which the Sheens fastened up in various ways as often as appellant opened it. The killing occurred at this gap. Appellant had consulted the county attorney and other officers about what he should do in the premises. On this Sunday morning appellant said he had started to Dye Mound, went to the gap or wire gate mentioned, opened it, led his horse through, got back on him and started off, when he caught sight of the two Sheen brothers, — Elmer and J. D.,— near him and coming toward him, and he said he also saw some one in the bushes, in the direction he had to go, moving over toward the road, apparently a few steps from same. His pony whirled right in front of the two Sheens, and Elmer grabbed *251his bridle on the right side and J. D. started around to his rear on the left, and went out of appellant’s sight. About this time Elmer struck appellant in the face with something that made a scar on the jaw, which appellant said he had at the time of the trial; when this blow was struck appellant said he reached for his pistol. The blow almost knocked him from his horse, and would have done so but he held to his saddle horn. Appellant said he told Elmer to stop, and drew his pistol and shot at Elmer as quick as he could, but could not tell whether he hit him or not as he did not fall, but drew back to hit the second time, and appellant fired at him again. What then occurred, according to appellant, we let him say:
“While that was taking place I didn’t see J. D., but in the mean time there had been something strike me here on the arm, a pretty heavy blow on this arm and another blow just back of my head on top of my shoulders. About the time Elmer fell there was a sound behind me that sounded like a lick, something like that, which I judge was my horse because my horse whirled as quick as he could do so after Elmer fell. After my horse whirled J. D. was standing just to the right and in front of me with this stick in his hand and he said, T will kill you’ and struck at the same moment, then I fired as quick as I could at him and he fell. After he fell I momentarily sat there on my horse and kinda rubbed my face and head. I was just a little bit dazed from that blow on my back.”
Appellant had already sworn that when deceased passed out of his sight on the left he had a green stick or club in his hand about the size of appellant’s wrist at one end. As to how appellant viewed his situation at this time, we again let him state: “At the time I fired those shots I fired them because I thought my life was in danger and from the remarks those boys made when I rode by them and the remarks they made after I turned back there I thought I was trapped. It was very evident to my mind that those boys were angry and that they was looking for trouble, and I couldn’t feature those boys being there without their father. I didn’t know at that time who it was in the brush on up there waiting, and I didn’t know at that time whether or not the person on up there was armed or not.” On cross-examination appellant again said:
“I don’t believe I could have stood many blows like that, I certainly thought I was in great danger at that time. I don’t know what you mean by me being afraid, I figured my life was in danger. I saw those two boys and saw another one in the brush and was afraid I was going to lose my life. When I saw *252J. D. and King and Mr. Sheen there I saw all three of them and this time I didn’t know who was in the brush.”
In response to questions by State’s counsel appellant said he did not try to run over these parties, or take his foot out of the stirrup and try to kick them, or try to knock them over with his pistol, or whirl his horse and try to get away from them, or try to knock them down. Appellant made no claim of self-defense against an attack by the Sheens less than deadly, as it appeared from his standpoint.
As we view the testimony, appellant was entitled to have his right of self-defense affirmatively presented without limitation based on any duty to resort to all. other means before taking the life of his assailant. Mr. Branch in Sec. 1919, at page 1071, of his Annotated P. C., says:
“If defendant acts under a reasonable expectation or fear of death or of serious bodily injury, produced by the acts of his adversary at the time of the homicide, he is not bound to retreat nor to resort to other means of averting such danger, but may slay his adversary if the danger be imminent and pressing, or if it reasonably appears so to be to defendant, viewed from his standpoint at the time.”
Mr. Branch cites many cases. We call attention also to others. See Terrell v. State, 53 Texas Crim. Rep., 608; Milam v. State, 3 S. W. (2d) 97; McPeak v. State, 80 Texas Crim. Rep., 50; Jones v. State, 86 Texas Crim. Rep., 371; Escobedo v. State, 88 Texas Crim. Rep., 277; Blacklock v. State, 196 S. W. Rep., 822; Petty v. State, 86 Texas Crim. Rep., 324; Fleming v. State, 101 Texas Crim. Rep., 24; Liston v. State, 105 Texas Crim. Rep., 531.
We are constrained upon more mature consideration to believe the charge referred to and discussed was erroneous, and the matter of gravity enough to call for reversal. The cross-examination of appellant, above set out, was calculated to lead the jury to think appellant should have tried to ride over or kick the boys before he would have the right to shoot.
The appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.
Reversed and remanded.