Appellant was indicted and tried in the court below for the murder of Dolph Mathena; the trial resulting in a conviction for the offense of murder of the second degree. Of the errors assigned—though all have received our patient, careful consideration—but four are thought necessary to be discussed:
1. It is objected to the charge of the court that, in defining the elements of murder of the second degree, the doctrine of reasonable doubt is infringed upon; and, in support of the objection we are cited to the Morgan case (16 Texas Ct. App., 593). Comparison of the two charges develops a radical difference. In the Morgan case the charge was so framed as to require the facts of reduction to be evidentj whereas, the true rule is that, to convict of murder of the second degree, the proof must show, beyond a reasonable doubt, the absence of the reducing, excusing or justifying facts. Considering the definition of murder of the second degree, given in the charge in this case, in connection with the charge, directly applying the law to the facts of the case, there is not the slightest probability that the jury was misled as to the application of the doctrine of reasonable doubt.
3. It is urged that the court should have instructed the jury as to the rights of appellant in a case of “ imaginary danger;” that the charge given upon this subject confined the jury to a case of actual danger. A charge is correct, or incorrect, as it' applies or fails to apply the law to the case made by the evidence. In very many cases, the danger may not in fact be real, and yet appear so to the defendant. When this is so, the rule urged by appellant’s counsel becomes of the highest importance, and should be given in charge to the jury. In other cases, the *163danger is evident, patent, and in these the rule has no application.
How stand the facts in this case? Without doubt, the danger, if danger there was, was not imaginary, but patent and real to the appellant.
3. The jury were not instructed that the appellant was not bound to retreat, and the omission to so charge is assigned for error. Ho such charge was requested, nor was the court’s omission made the subject of exception. While the court should have given in charge this law, still it does not of necessity follow that the omission will work a reversal of the judgment. If the facts show that the danger was imminent, leaving no opportunity of safe retreat, it is improbable that the jury would hold the defendant to retreat. This is the doctrine laid down in Bell’s case. (17 Texas Ct. App., 538.)
4. In giving in charge to the jury the law of self defense, the learned trial judge says: “While it is the inalienable right of every man to protect his person from violence, yet this right does not in every case justify the party assaulted, in defending himself, to the extent of taking the life of his assailant; but one is only justified in taking the life of an assailant when he himself is without fault.” This proposition may or may not be correct, and will be discussed further on.
The court carries the same proposition, framed in different language, into its charge on manslaughter, viz: “And if, therefore, the jury should find from the evidence that the defendant went into the saloon of the deceased, and provoked an altercation between hiniself and the deceased, but without intending to kill the deceased, and deceased assaulted the defendant, or by some act done gave the defendant reasonable apprehension of loss of life, or of great bodily harm, and the defendant killed deceased to protect himself from the apprehended injury, the killing,under these circumstances, would not be justifiable,but (defendant) would be guilty of manslaughter.” To condense the proposition the instruction is this: If the defendant was in “fault,” or “provoked” an altercation, and then kills to save himself, he will not be justified, but would be guilty of manslaughter. What “fault,” or measure of provocation, would deprive one of the right of self defense? The nature and quality of the act (the “fault”—the provocation) the doing of which will deprive one of the right to defend himself, is not given or explained to the jury. Just what acts will abridge one’s right of self defense, or deprive *164him of it altogether, can never be determined. A very clear and simple rule upon this question will be found in the notes to Staffer’s case (Cases on Self Defense, H. & T., p. 227). “If he provoke the contest, or produce the occasion, in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat. But if he provokes the combat, or produce the occasion, without any felonious intent— intending, for instance, an ordinary battery merely—the final killing in self defense will be manslaughter only.”
It will be observed that the intent with which the contest, or occasion, was sought, or produced, is of the highest importance. Suppose a defendant provokes a combat, or produces an occasion, without intending to do so; or, let us suppose his acts or language did in fact provoke the contest, but were not intended to have that effect, nor were they such as would usually and naturally lead to a contest. If, under these circumstances, he kill to save himself, or to prevent serious bodily harm, will he thereby be deprived of the full and perfect right of self defense?
In Selfridge’s case it was held that “no words nor libelous publications, however aggravating, will compromit his right of defense, if in consequence of the same he is attacked; for no words, of whatsoever nature, will justify assault.” (Cases on Self Defense, H. & T., 227. Also vide Cartwright et al. v. The State, 14 Texas Ct. App., 486, for a discussion of this subject.) The rule laid down in the notes to Staffer’s case, which we take to be the correct one, clearly indicates that there must be a purpose behind the provocation and impelling to it. It is also evident that, notwithstanding the defendant may have provoked the combat or produced the occasion by his own wrongful acts, yet, if these acts were not clearly calculated or intended to have such effect, his right of* defense is not thereby compromitted. It is not every wrongful act that will deprive the doer of his right of self defense.
Applying these rules to the court’s charge in this case, the charge will be found to contain an erroneous proposition, which, under the facts, may have seriously prejudiced the appellant’s rights. Appellant had threatened the life of the deceased, and this was undeniably wrong. He had, with others, on the night before the homicide, in a drunken carousal destroyed the property of deceased; this, too, was a “fault.” May not the jury have compromitted his right of self defense because of these *165wrongful acts? Taking this view of the charge of the court (at least with regard to the threats), appellant’s counsel asked the court to instruct the jury, in effect, that threats made by defendant against deceased did not operate to deprive defendant of his right of self defense. The instruction was clearly rendered necessary by the view taken by the court in its charge, and should have been given. (Parker v. The State, 18 Texas Ct. App., 72.)
Opinion delivered February 16, 1887.Because of the error indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.