Appellant having been convicted of murder in the second' degree, several nice questions raised with regard to murder of the first degree as submitted in the charge of the court to the jury, and as omitted in said charge, are rendered inconsequential in that they can no longer affect appellant’s rights. We will therefore address ourselves to the case of murder in the second degree as presented in the record. In order to illustrate our impressions as to the main points in the case, we will state in brief the circumstances surrounding the parties at the time of the homicide and attendant upon it.
Watson, the deceased, had been living for some time in the family of the mother of appellant. From some cause not developed, these two parties were not getting along well together. Belle Parish, the first witness for the State, a half-sister of appellant, and who was present when the difficulty occurred, states in substance that, whilst defendant was out getting a horse preparatory to going on a mission for his mother, deceased came into the room where she, her mother and sister were, and, sitting down in front of the fire, whetted his knife and ax. Her mother took the ax, and, after cracking some hickory nuts with it near the door, sat it down close to the casing of the door. About this time defendant came in and inquired of his mother *375what the message was she wished him to carry to his uncle. She delivered the message, when defendant said: “Mother, there is one thing I want to say to you, and you can make up your mind about it while I am gone; and '.that is, that Dick Watson (deceased) or I one will have to leave here.” Watson, the deceased, then said that he was not going to leave, and that it had as well be settled now as any time; and got up out of his chair with his knife in his hand, opened, and made a lunge at defendant with his knife grasped in his right hand, advancing in a stooped position. The chair which Watson was sitting in fell back as he raised up. The defendant then stepped one step to the right with his right foot, and reached with his right hand for the ax, which was on the porch leaning against the house and near the door defendant was standing in. Defendant then raised the ax; defendant and deceased were close together. And she does not remember any more till she was out in the yard. Eone of the other parties who were present at the time of the homicide testified at the trial, nor is any explanation made with regard to their absence. Deceased was evidently killed by blows from the ax, one or more of which, according to the testimony of the medical experts, inflicted wounds necessarily and instantly fatal..
In the absence of special exception to the charge on implied malice and murder in the second degree, whilst it is true that the definition or explanation of the term malice might be more full and explicit, still it cannot be said to be radically and fundamentally wrong, and no special instructions were asked with a purpose to cure its supposed defects.
Upon the subject of self-defense, the only instruction found in the charge is as follows, in paragraph eight: “8. If you believe from the evidence that it reasonably appeared to defendant by the acts or by the words coupled with the acts of the said Dick Watson, that the said Watson was in the act of murdering or maiming the defendant; or after the said Watson had done some act showing evidently an intent to murder or maim the defendant, and that the defendant then and there assaulted the deceased with an ax, from the effects of which he died, you will find the defendant not guilty; and in determining this matter you will view the evidence from the standpoint of the defendant.”
It will readily be seen that this charge limits the right of self-defense to reasonable apprehension on the part of defendant *376that deceased was in the act of murdering or maiming him. Now, whilst a homicide is clearly permitted by law under such circumstances as those named in the charge (Penal Code, Art. 570), the facts in this case, as above set out, it seems to us, required further instructions- upon self-defense than those relating to a defense against murder or maiming. After the killing, it was found that the knife, which deceased still held grasped in his hand, was a pocket barlow knife. We will suppose, for the sake of argument, that defendant and the jury which tried him neither could have believed, from the character of the knife, that it reasonably appeared that deceased intended to murder or to maim him when he made the lunge at him with the knife spoken of by the witness. Would he therefore be deprived of his right to take the life of his assailant? Certainly not, if he could show that the attack was unlawful and violent, and one from which he was likely to suffer serious injury to his person, one which was so sudden, immediate and pressing .that he would have no time to resort to other means for the prevention of the injury, except by retreating, which no man is bound to do. (Penal Code, Arts., 572, 573, 574; Horbach v. The State, 43 Texas, 242; Ainsworth v. The State, 8 Texas Ct. App., 532; Boddy v. The State, 14 Texas Ct. App., 528; Barrett v. The State, 9 Texas Ct. App., 33.)
Opinion delivered February 2, 1884.The questions which should have been submitted to the jury on the evidence, in addition to the one submitted by the charge, were: Did deceased make a violent and unlawful attack upon defendant, producing a reasonable expectation or fear of death or serious bodily injury? Was he in the very act of making such an unlawful attack? Could defendant have reasonably resorted to any other means, save flight, taking into consideration the circumstances, than those he availed of? If not, then the killing was justifiable, and the jury should acquit.
Because the charge did-not sufficiently present the law of self-defense applicable to the facts, the judgment is reversed and the cause remanded.
Reversed and remanded.