ON STATE’S MOTION FOR REHEARING.
HAWKINS, Presiding Judge.It is urged by the State in its motion for rehearing that the evidence does not present a case calling for an instruction under Art. 1224 P. C. which in so far as here applicable 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 cases 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, * * *”
*630The latest expression of this court upon the subject is in the recent case of Fambro v. State, 21,569, opinion on rehearing October 22, 1941, reported 154 S. W. (2d) 840. (Page 473 of this volume). We adhere to what was there said, that it is not in every case where self defense is an issue that the court is called upon to charge the principle contained in the article quoted, but only in cases where the evidence, direct or circumstantial, fairly raises the issue making such statute applicable. In the opinion on appellant’s motion for rehearing delivered on June 25, 1941, we indicated that in our judgment the evidence called for an instruction under said Art. 1224, but did not deem it necessary to detail the evidence upon which such conclusion was based. The State combats the correctness of such conclusion so vigorously we tersely call attention to the testimony upon which the conclusion rests. It will, of course, be understood that we express no opinion as to whether the evidence is true or otherwise, that being a matter for the jurors. We are concerned only with the proposition of whether the evidence raised an issue upon which the jury should have been advised as to the law.
The Moore land and that of appellant was separated by a fence, and their land cornered on the line of Crutchers’ land upon which line was a fence between the Crutcher land and that of Moore and appellant. It was undisputed that trouble and bad blood had arisen and had existed for a long while between appellant and the Moores regarding surface water along the line between their lands.
Appellant’s story of the homicide detailed to the jury is substantially as follows: On the day of the homicide he was upon his own land near where it cornered with the Moore land on the Crutcher line working with a long handle shovel opening a ditch to drain the water from appellant’s land on to the Crutcher land. The water so drained would not have gone on the Moore land. Deceased, (Cecil Moore) came to- the fence separating their lands and abused appellant for opening the ditch and cursed him in vile language. Deceased came over the separating fence in a threatening manner, but at the command of appellant got back over the fence on his own side. Further words were exchanged between them and deceased again came over the fence and attacked appellant. Deceased was striking with his fists and hit appellant a number of blows. Deceased was a strong, vigorous man and appellant was no match for him in a physical encounter. Appellant was “beat *631down, nearly falling and give out.” Appellant dived or crawled under the Crutcher fence to get away from deceased who “stomped” appellant as he crawled under the fence, and then followed him into the Crutcher field and was within seven or eight feet of appellant when he got his pistol out and fired. At this point we quote from appellant’s testimony. •
“* * * Cecil came over this fence into my place and fought me; and he followed me through the fence into the Crutcher field and I shot him somewhere out in that field; * * *”
“I shot Cecil Moore because I was afraid of him. I thought he was going to hurt me or kill me; I thought that he was going to kill me. I did not think that I could fight Cecil; if I had been in the best health on earth I could not have fought Cecil Moore. * * * He could have stomped me to death or killed me with his bare hands. * * * I would not have shot Cecil Moore or killed him if I had not thought that he was going to hurt me; I would not. In my judgment I thought then and I think now that it was necessary for me to shoot him in order to stop him from doing me physical violence and injury; I shot him to keep him from getting hold of me.”
“He hit me time and again. I do not know how many times he hit me but he hit me real hard. It might be that he did not hit me on the face but he did on the neck and around the head. He was a big strong man but he never did knock me down. I do not know how many times he hit me in the face but it was six or seven times. I was backing or walking. I was trying to make my way to the house. I had started home. And then I started to run under the fence. And I went way back over here. I went out into this field, just about in this direction, * * * I do not know why I ran this way instead of that way except that to have run that way I would have had to run over him. He had me about beat down and the only thing I could do was to try to get out of danger. * * *”
Neither in appellant’s direct or cross examination does he explain what became of the shovel and the thought naturally arises that he might have resorted to that rather than to have used a pistol against an unarmed assailant. However, through a res gestae statement made by appellant to his son appellant throws light on what became of the shovel. The son testified as follows as to what appellant said.
*632“My father told me about having that shovel over there on the inside of his place; and he told me what he was doing. He had a shovel but the handle was not so long and the shovel was. not so big. He was in a difficulty. He did not say anything about using that shovel; he just said that he threw it down and ran. He said that he turned' back then; he did not say necessarily to run but to get out of the way of Cecil Moore. He did not say anything about that shovel except that he dropped it. * * * Instead of going down his field fence he went through into the other field, because Cecil was trying to catch him and he was trying to get away from him.”
The undisputed facts are that the killing occurred in the Crutcher field. The State’s evidence is sharply variant from that of appellant as to how or why the parties got into the Crutcher field, but such testimony is not here set out because we are concerned only with appellant’s evidence to ascertain if it called for an instruction applying the principle set forth in Article 1224 P. C.
Our law does not require one to retreat in order to escape the necessity of killing his assailant although he may be defending against an attack threatening less than death or serious bodily injury. It does require him to resort to all other means to prevent injury to himself before he kills. According to appellant’s story — whether true or not — he discarded the shovel and did retreat and was pursued by his assailant and the killing occurred — under appellant’s version — as herein set out.
We remain of opinion that the evidence raised an issue which demanded that the jury should have been advised as to the principle of law announced in Article 1224 P. C.
The State’s motion for rehearing is overruled.