DISSENTING OPINION OE HURT, J.
Hurt, Judge.This is a conviction for murder of the second degree, with the penalty fixed at confinement in the penitentiary for the term of twenty years. I will not discuss the points in the order in which they are presented in the brief of counsel, but will notice such as are deemed important.
First in regard to the action of the court below upon the application for change of venue. Appellant moved for a change because of so great a prejudice against him in the county of the prosecution that he could not obtain a fair and impartial trial. This application was supported by affidavit signed by twelve citizens of Dallas county. An issue was formed by the filing of a counter-affidavit of W. H. W. Smith, to the effect that the means of knowledge of defendant’s compurgators were not such as would authorize the inference that such prejudice did exist. This affidavit was excepted *646to by appellant upon the ground that it neither denied the credibility óf the compurgators, nor their means of knowledge.
The statute upon this subject is somewhat vague and indefinite. It says, “the credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person, and the issue thus formed shall be tried and determined as the law and the facts shall warrant.” (Italics ours.)
It is insisted by counsel for appellant that the affidavit of Smith does not attack the means of knowledge of the compurgators. How just in what language this must be done is not stated in the statute, nor is the form prescribed. Smith swears “ that the means of knowledge of the parties signing the supporting affidavit is confined to their particular neighborhood, which does not include the whole county, and that their means of knowledge is besides limited, they not being acquainted with the sentiments of the people of Dallas county about the matter contained in said motion;” “and that in fact there is no such prejudice in Dallas county as will prevent defendant’s obtaining a fair and impartial trial.”
This is evidently an attack upon the means of knowledge of the persons supporting the application. It is true that it does not state in terms that the means of knowledge is not sufficient, or is insufficient; but the facts are given without such conclusion. This we think is sufficient.
The only important question presented in the record is that relating to the charge of the court upon the question of self-defense. After giving a most careful consideration to all the supposed errors, Í am of the opinion that there was no such error committed upon the trial of this case as will require a reversal of the judgment, unless there be error in the charge upon the doctrine of self-defense.
The court in effect charged the jury that, if the killing was to prevent the offense of murder, maiming or disfiguring, the party killing was not required to resort to all other means to prevent the threatened injury; and further, in effect, that if the killing was to prevent the infliction of serious bodily injury, then in such case the party killing must resort to all other means to prevent the injury.
. Let us concede for the argument that there is evidence tending to show that deceased was in the act, when shot, of inflicting upon defendant serious bodily injury, and hence the charge upon this subject was not abstract, did the charge of the court under discussion contain the law? The writer was very much entertained by the discussion of this case. Counsel for appellant stated the issue clearly *647and sharply, and rested their case on this point, upon a long line of decisions of this court. Hr. J. 0. Nearby, assisting the State, argued the cause for the prosecution, and in his argument he fearlessly but courteously denied the correctness of the opinions of this court upon this subject. This is well and commendable; for if in error, this court should be informed of it in plain language, so that if convinced ' of the error it may be corrected at the earliest moment. By this discussion I have been led to review the subject, giving to it'my most earnest and searching investigation, and will now proceed to give my views upon the question presented; which is, was the charge ‘ of the court correct?
Upon this subject, as upon nearly all others relating to law, light can be gathered from the common law. When the common law is looked to we find that to prevent murder the party, before killing his adversary, was required not only to resort to all other means to prevent the threatened crime, but was to retreat to the wall. Now, what change, if any, has our Code made upon the common law iipon this subject. 1 answer, 1st, that in no case when the person or property is unlawfully attacked is the party bound to retreat in order to avoid the necessity of killing his assailant. But the question is, under what state of facts can the party assaulted kill the assailant without resorting to all other means to prevent the threatened injury? Or under what state of case must the party assaulted resort to all other means to prevent the injury?
It is evident that if the homicide be committed to prevent any of the offenses named in article 570, Penal Code, the party killing would not be required to resort to other means to prevent the commission of these or either of these offenses; for our statute specifically enumerates the circumstances under which a killing, to prevent either of the offenses named in said article, must take place in order to justify the homicide. It provides, 1st: It must reasonably appear by the acts, or by words coupled with the acts, of the person killed, that it was the purpose and intent of such person to commit one of the offenses above named. (Italics mine.)
When must the killing take place? The killing must take place while the person killed, was in the act of committing the offense. What offense? Evidently one of the offenses named in article 570; or after some act done by him showing evidently an intent to commit such offense. The provisions in subdivisions 3, 4, 5, 6, 7, 8 and 9 of article 570 will not be discussed because not applicable to the facts of this case. But it will be seen by article 570, and its subdivisions, that the exact circumstances are set forth under which a *648homicide, to prevent one of the offenses named in such article, will be justified, and it is obvious that the party killing, to prevent one of these offenses, is not required to resort to other means to prevent the commission of the threatened offense, because nothing of the sort is required by the Code, which evidently intended to enumerate — set forth — all the acts necessary to be done by the slayer in order to his justification in killing the aggressor. And it is by virtue of this fact — this enumeration of the circumstances under which the killing must take place — that the common law rule requiring the party, before killing, to resort to all other means to prevent the offense threatened is abrogated. And it is equally evident that this common law rule is abolished only in the cases, under the state of facts, distinctly named in the Code, and which are found in article 570.
This question arose in the Horbach case, 43 Texas, 252, and in treating of the subject Chief Justice Roberts says that, by article 572, “.it is intended to provide the rule that when any other unlawful and violent attack is made than one in which the acts of the deceased manifest the intention to murder or maim, or to commit rape, robbery, arson or theft at night, defendant is required to resort to all other means before killing his assailant to prevent the injury. Why?' Because in such an attack it is presumed that there may be time and opportunity to resort to other means.” (Italics mine.) But, as provided for under the preceding article 570, where at the time of the killing some act has been done by deceased showing evidently an intent to commit such offense (murder or maiming, etc.), then and there, in that event, the party thus attacked need not resort to other means before killing his assailant; because it is presumed in such a case that the party’s safety depends upon his prompt action in killing his adversary. Thus, when an unlawful and violent assault is committed, the degree and character of the injury intended by the assailant, as then indicated by his acts, then done, is made the test of whether the party attacked may at once kill, or must-resort to all other means for the prevention of the injury before killing.” Chief Justice Roberts here most evidently asserts the rule that to relieve the party killing from the necessity of resorting to all other means before killing to prevent the injury, it must be to prevent one of the offenses named in article 570, and that in all other cases, or to prevent any other unlawful and violent attack, resort must be made to all other means before killing.
We find, therefore, that our statute, in article 570, has departed from the common law in two respects: 1. Eo retreat. 2. If to *649prevent murder, rape, robbery, maiming, disfiguring, castration, arson, burglary, and theft at night, or where the party slain in disguise is engaged in any attempt, by word, gesture or otherwise, to alarm some other person or persons and put them in bodily fear, the slayer is not required to resort to other means, but may kill at once.
Homicide is not only justifiable in the prevention of the offenses named in article 570, but is also justifiable in the protection of the person or property against any oilier unlawful and violent attack besides those mentioned in article 570. Under what circumstances? If the unlawful and violent attack be any other than those mentioned in article 570, and is made upon the person or property, in such case 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.
How, if it is not the intention of the party killed to commit one of the offenses named in article 570, but to make an unlawful and violent attack upon the person or property of another, under this state of case article 572 gives the right to slay, holding the slayer harmless if he slays the aggressor under certain prescribed circumstances. They are that he must resort to all other means before killing to prevent the injury, and he must slay while the assailant is in the act of making such unlawful and violent attack. And this is not all; our statute is very cautious upon this subject. It describes the nature and character of the attack upon the person, and is very minute in setting out the circumstances under which a, homicide will be justifiable when committed in the protection of property. But, back to the attack upon thq person.
The attack upon the person of an individual, in order to justify homicide, must be such as produces a reasonable expectation or fear of death or serious bodily injury. It will be noticed that to prevent one of the offenses named in article 570 the degree and character of the injury intended by the assailant, as indicated by his acts then done, is made the test of whether the party may at once kill the assailant, or must resort to other means for the prevention of the injury before killing him. Hot so under article 572, because article 574 gives the right to slay when done under the circumstances named in article 572, whether the assailant intended to murder or endanger the life of the person killing or not. If the attack be such as to produce a reasonable expectation er fear of death, whether the assailant intended to take life or not, then the party is justified in killing; and if the attack be of such a character as to produce in *650the mind of the slayer a reasonable expectation or fear of some serious bodily injury, if he kills under the circumstances named in article 572 he will be justified.
This is the rule at common law, and in this as in article 570 the party is not bound to retreat. No retreat here constitutes the only departure from the common law.
Before leaving this subject I desire to make an observation on the Horbach case. In that case there was evidence in the record tending to show that deceased intended to murder or maim the defendant Horbach. This being the case, the charge of the court was evidently wrong; because it required Horbach to resort to all other means to prevent the injury before killing, as well in a case for the prevention of murder and maiming as in a case to prevent any other unlawful and violent attack, thus blending articles 570 and 572; and Chief Justice Roberts, discussing this matter, says: “This confusion from blending the two rules might have been obviated by giving the third charge asked by defendant’s counsel, which was refused by the court only upon the ground that it was deemed to have been substantially given. This third charge was intended to separate the rules contained in the different articles.”
Again, I wish to call attention to an expression of Judge Roberts in regard to article 574. He says that “ the proposition stated in the charge, to wit: that the attack so made was of such a nature as to have produced in the mind of this defendant a reasonable expectation or fear of death or serious bodily injury, is not contained in article 572.” This is true; it is not a part of said article; but does it not qualify said article? Does it not describe the attack therein mentioned? I think so, nor do I believe that Judge Roberts intended to intimate to the contrary.
I therefore conclude:
First. That when it reasonably appears to the party killing that it was the intention of the assailant to commit the crime of murder, rape, robbery, maiming, disfiguring, castration, arson, burglary, and theft at night, it is not required of the party killing to resort to other means for the prevention of the crime, but he may act instantly. But, if it does not reasonably appear to the party killing that it was the intention of the person killed to commit one of these offenses, then, to be justified, the party killing must resort to all other means before killing, to prevent the injury.
It therefore follows that if the attack upon the person of an individual be such as to produce a reasonable expectation or fear of some serious bodily injury less than rape, maiming, disfiguring or *651castration, to justify, the party killing must resort to all other means before killing, to prevent the injury, and must kill while the person killed is in the very act of making such attack.
[Opinion delivered March 20, 1886.]I have written several opinions holding a contrary doctrine, but I am now convinced that I was in error and take this opportunity to correct the same; and I think that the cases in conflict with the views herein expressed should be overruled.
I do not agree to the proposition that the State could be forced by the defense to introduce as witnesses Waller, Hunnicutt and Herndon.
Upon this subject Mr. Bishop says: “In general a party, whether State or defendant, may exercise his choice either to call or decline any competent witness. . . . Some courts deem that a prosecuting officer ought, in murder or other like crimes, to call as witnesses all who were present at the transaction, whatever be the nature of their testimony; others regard it properly within his discretion to produce such and such only as he thinks best.”
With the last mentioned rule I concur. If it has ever been the practice in this State to force the State to call all the witnesses to the transaction, I am not aware of such practice. Such a rule would work serious injury to the State and tend to confusion.
Let us suppose that there were present friends and relatives of the defendant, as was so in this case,—-Ike Hunnicutt being a brother and Herndon a cousin by marriage,— or persons of notoriously bad reputation for truth. The State introduces them; they swear to facts exonerating defendant. Other witnesses are introduced, but they all are the witnesses for the State. By introducing them, their character for truth and veracity is indorsed by the State, and, to convict, their evidence must be destroyed. I his cannot be done by proof of general bad character for truth. I could enlarge upon this subject but deem it unnecessary, the above observations being very suggestive.
We have very carefully considered the other points presented by counsel, but do not think it necessary to discuss them here,—believing it will be found that, if not all of them have been passed upon by this court, at least such have been as require serious attention.
That the evidence, if the witnesses are worthy of credit, is sufficient to support the verdict, there can be no doubt, and the jury whose duty it was,have passed upon the credibility of the witnesses, and from the verdict they must have believed them.
The judgment should be affirmed.
Reversed and remanded.