"This is a conviction for manslaughter. This is the second conviction, the first being for murder in the second degree, and on appeal the judgment was reversed upon the ground, among other matters, that the court failed-4cr4nstimct_the jury fully as to the law of justifiable homicide.
In this record the statement of. facts differs in some material respects from that before us on the former appeal; and, if not more clearly, certainly the issue.of self-defense is as pertinently presented as wasdqBH-on_the-former trial.
Üponthe subject of justifiable homicide the court charged the *450jury inter alios: “ A reasonable apprehension of death or great bodily harm will excuse a party from using all the necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger.” “If, from £55”evidence, you believe the defendant killed the said A. T. Moreland, but you further believe that at the time of so doing the deceased had made an attack upon him which, from the manner and character of it, and the relative strength of the parties, caused him to have a reasonable expectation or fear of death or serious bodily harm, and that, acting upon such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him.”
¡Now there must be, to justify, actual or apparent danger; and the existence of the one or the other must reasonably appear at the time of the homicide. In other words, the party killing, to justify, must have reasonable apprehension or fear of death or serious bodily harm, at the time of the killing. These principles are fully and clearly given to the jury in the charge.
But to whom must the appearance of danger,— the apprehension of the par£y"killing,— reasonably appear? To the jury after hearing all the evidence,— after ascertaining the real facts, “ a great many of which might not, could not, and doubtless were not known to defendant at the time of the killing?” Or, must the real or apparent danger appear to defendant at the time of the homicide to be reasonable? We think the latter is correct. The jury must view the facts upon his standpoint. Each juror must place himself in the position of the defendant at the time of the hotifIcHe, and determine from all the facts, as“They appeared to defendant at the time of the killing, whether his apprehension or fear of death or serious bodily harm was reasonable; and if so, they should acquit. For, says Mr. Wharton, whether the danger is apparent is to be determined from the defendant’s standpoint. (Whart. on Hom., § 493; Halley v. Comm. (Ky. Ct. App.), 5 Cr. Law Mag., 47. See, also, 2 W. Va., 679.) The correctness of this proposition is now well settled. (Jones v. The State, 17 Texas Ct. App., 602; Jordan v. The State, 11 Texas Ct. App., 435; Blake v. The State, id., 581.)
When the charge was delivered to the jury, and before their retirement, couhsel for defendant excepted, without avail, to the charge, specially because by the terms of the charge the jury were authorized to find against the defendant on the question of self-defense, if they believed that he had no reasonable ground of apprehension for his life or limb, when the law is, and the jury should *451have been so instructed, that the question of self-defense in such cases must be determined by what might have appeared reasonable to the defendant at the time of the homicide, and not by subsequent developments as laid before the jury in the shape of evidence. This being a felony case, it was the duty of the court below to give in charge to the jury the law of the case, whether requested or not, and, failing in this, especially when the omission was excepted to at the time, it is the duty of this court to reverse the judgment.
[Opinion delivered March 3, 1886.]For the defect in the charge of the court, above discussed, the judgment is .reversed and the cause remanded for another trial.
' Reversed and remanded.