The appellant was convicted of murder of the second degree. There was but one error shown by the record. The other assignments are not well taken.
The court below charged the jury that: “If you believe from the evidence that defendant shot and killed Phillip Arnold, but you believe, at the time of the shooting, deceased was making an unlawful and violent attack upon defendant, that created in the mind of defendant a reasonable expectation of death or serious bodily injury from such violent and unlawful attack, and defendant resorted to all other means to prevent the injury except to retreat—-for he was not bound to retreat, — then, if such unlawful attack was being made at the very time of the shooting, the shooting would be self-defense, and if you so find, you will acquit the defendant.” The italics are ours.
This charge is radically wrong. If it reasonably appeared by the acts, or by words coupled with the acts, of deceased, that it was the purpose and intent of the deceased to take the life of defendant, or do him some serious bodily harm, defendant was not bound “to resort to all other means to prevent the injury,” except to retreat. But on the contrary defendant had the right to slay him instantly without such resort. For if tho fife of the citizen is imperiled, the law does not require *109him to permit his life to remain in jeopardy for a moment, depending upon a successful resort to other, and of course, less effective means than the instant slaying of the aggressor. He may act at once, and with the most effective and deadly weapons.
When may he act or kill the aggressor? Not only at the very time the attack was being made, as was charged by the court below, but after some act was done by the deceased showing evidently an intent to take his life. We will not pursue this subject further, believing that it would be very uncertain whether the principles and distinctions set forth and drawn by the Code could be more forcibly and clearly enunciated than was done in Kendall v. State, 8 Texas Ct. App. 569. In this case, as in the Kendall case, and the cases of Horback, 43 Texas, 424, Blake, 3 Texas Ct. App. 588, and Ainsworth, 8 Texas Ct. App. 532, articles 570 and 572 of the Penal Code were confounded, and the provisions of the latter were injected into the former, and made to control the same. They are, by the Code, reason, and justice, essentially different,— setting forth rules and principles for the government of a state of case quite dissimilar in a great many particulars. This subject has also been handled in a masterly manner in the cases above cited.
The appellant moved for a new trial because of this error, the motion was overruled, and the same error is assigned in this court. Bishop v. State, 43 Texas, 390.
We are of the opinion that .the charge was in direct violation of the Penal Code, and the court below should have awarded defendant a new trial. The judgment is reversed and the cause remanded.
Reversed and remanded.