I. In the opinion of the learned trial judge the evidence justified and demanded a charge upon the law of self-defense, and he accordingly gave a charge thereon, but this charge does not embrace all the law upon the subject applicable to the evidence in the case. It omits to instruct the jury that the defendant, if unlawfully attacked by the deceased, was not bound to retreat in order to avoid the necessity of killing his assailant. (Penal Code, art. 573.) We concur with the trial judge in the opinion that a charge upon the law of self-defense was not only warranted but required by the facts in proof, and we further hold that a material part of said law, particularly applicable to such facts, is the provision above cited, and which was entirely omitted from the charge given to the jury. The omission to give such a charge was, we think, material error calculated to injure the rights of the defendant, and therefore constitutes cause for reversal, although not excepted to at the time. (Bell v. The State, 17 Texas Ct. App., 538.)
II. Another defect in the charge upon the law of self-defense is that it required the jury to believe from the evidence that the defendant fired the fatal shot under the influence of terror, in order to render the killing justifiable. This is a limitation of the right of
III. In our opinion there are phases of self-defense presented by the evidence which the charge of the court omits to notice. If the defendant, intending to kill the deceased, entered the house of deceased, and provoked the occasion which resulted in the homicide, he cannot claim that the killing was in self-defense. If, however, the defendant was a mere trespasser upon the premises of the deceased, and provoked the occasion which resulted in the homicide without an)f intent to kill the deceased or do him serious bodily injury, and without intent to commit any felony, in such case he would not be deprived wholly of the right of self-defense, but such right would be only partial and imperfect, and could operate no farther than to reduce the homicide to manslaughter. (King v. The State, 13 Texas Ct. App., 277; Jones v. The State, 17 id., 602.) We are of the opinion that the charge should have submitted to the jury the above mentioned phases of the case.
IY. In other respects than those we have named, we think the charge of the court is correct and sufficiently clear to enable the jury to properly understand the law governing the issues submitted for their determination. A careful consideration of the charge upon the law of manslaughter has satisfied us that the objections thereto urged by defendant’s counsel are not sound. Whilst the charge upon this issue is very concise, it nevertheless, in our judgment, sufficiently and correctly presents the law, and cannot in any respect be said to be calculated to confuse or mislead the minds of a jury. The words in said charge objected to by defendant’s counsel, and italicised in their brief, rendered the charge more favorable to the defendant than if they had been omitted, and, furthermore, the qualification expressed by these words is a correct one, and was not improperly inserted in the connection in which they are found.
Reversed and remanded.
[Opinion delivered October 28, 1885.]