ON MOTION FOR REHEARING.
GRAVES, Judge.Appellant’s motion for a rehearing is merely concerned with two propositions urged by him wherein it is claimed we were in error.
The proposition relative to a charge on the defense of property is again urged, and error is claimed because of the court’s failure to charge thereon. We adhere to the reasoning set forth hereon in the original opinion, and see no benefit that could come from an elaboration thereof. See Fambro v. State, 139 Texas Cr. R. 480, 141 S. W. (2d) 354.
Again it is insisted that the trial court was in error in failing and refusing to charge on appellant’s right to defend against a milder or lesser attack than one threatening death or serious bodily injury, and we are cited to many cases holding that such a charge should have been given. Each of such cases of course have their own peculiar facts, none of which are strikingly similar to those of the present case. The article invoked by appellant is Art. 1224, P. C., and reads as follows:
“Homicide is justifiable also in the protection of the person or property against any other unlawful and violent attack besides those mentioned, and in such eases 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 such unlawful and violent attack, and any person interfering in such case in behalf of the party about to be injured is not justified in killing the aggressor unless the life or person of the injured party is in peril by reason of such attack upon his property.”
*481In support of appellant’s contention he cites us to the case of Bryant v. State, 100 S. W. 371. The facts therein set forth are very similar to those in this case. The deceased was a large man, drinking, and cursing the accused, and trying to fight with the accused. Bryant was a small man, weak and sickly; the deceased was coming toward Bryant and acting as though he had a pistol in his possession. Bryant shot once in the roof in order to scare the deceased, so he said, and then killed the deceased, who was some ten or twelve feet away and coming towards him. Judge Henderson laid down the doctrine in that case that:
“Article 677 (now art. 1224) authorizes self-defense as against a non-felonious assault, and that is where the attack is of a violent character, and in such case self-defense is only allowable while the person killed is in the very act of making such unlawful and violent attack. As. we understand by this, it does not authorize a killing when the party is about to attack, or is doing some act preparatory to the attack, but he must be then making such unlawful and violent attack. We do not believe a party is compelled to wait until a battery has been inflicted on him, but the attack must be then imminent, immediate, and impending; otherwise he is not to slay, and even in such cases all other means must be resorted to except retreating to avoid the killing.”
The action of the court in refusing to give that article in charge to the jury in the Bryant case, supra, was held to be correct, and on this point all three judges concurred.
In the Taylor case, 56 S. W. (2d) 647, the killing was done with a knife while Taylor was undergoing a beating by more than one assailant, who were armed only with their hands and fists, and such cutting was done while the actual fighting was going on and a violent attack was in progress at such time. The trial court limited the accused’s right of defense to a fear of death or serious bodily injury, and refused to charge upon a lesser and milder attack. It is easily seen where the accused was injured by such a limitation in the court’s charge, because of the fact that a mere beating with one’s fists would hardly be taken by a jury as threatening death or serious bodily injury.
In the Joubert case, 111 S. W. (2d) 721, the difficulty between the accused and the deceased was carried on by means *482of a shovel in the hands of the deceased and a hoe in the hands of Joubert, and again it is evident that the weapon used in the killing was not a deadly weapon per se, and the jury might have reasoned that death would not necessarily nor probably follow by the use of a shovel in the hands of such a person as was the deceased; that the accused had the right to defend against what seemed to them to have been a milder attack than one threatening death or serious bodily injury.
The remaining cited cases, Holland v. State, 39 S. W. (2d) 35, and Jones v. State, 39 S. W. (2d) 76, we do not deem to be in point herein.
Art. 1224, P. C., herein quoted, does not arise as a defense in every case of homicide where a fatal difficulty ensues between the accused and the deceased person. There must first be not only an unlawful but also a violent attack, and the killing must take place while the person killed is in the very act of making such attack. The attack must not only be unlawful but also be violent; not only that, but it must be shown that the-person thus attacked had resorted to all other means for the prevention of such injury, save retreat, before he would be justified in taking the life of his adversary. These facts, being affirmative matters of defense, should be shown by proof on the part of the accused, either by some witness or by circumstances, before the necessity of charging the law as laid down by Art. 1224, P. C. arises. In this instant case we do not think the appellant has discharged such a duty. It is shown that he had in his possession or where such were easily accessible, wrenches, tool and other instruments, not deadly weapons per se, which he could have resorted to as a means of defense, and some of which he actually had in his hands, and seemed to have warded off any contemplated attack upon himself until he had possessed himself of his gun, and after the possession of his gun upon his part, he used same only in its deadly character and took the life of an unarmed man, who at best was only trying to put him off a plot of ground, the possession and ownership of which was in litigation at such time.
We adhere to the rulings expressed in our original opinion.
The motion is overruled.