This is a conviction for murder of the first degree, with punishment fixed at confinement in the penitentiary for life.
After submitting to the jury the law of manslaughter and of murder of the first and second degrees, the court charged as follows: “If you believe that the defendazzt killed said Rice, then, if from defendant’s stazzdpoint it reasonably appeared to the defendant, or if you believe that by the acts or the words coupled with the acts of Rice, that it was Rice’s purpose azzd intent to make azz attack on the defendant’s property, such as produced in the defendant’s mind a reasonable expectation or fear of death or some serious bodily injury, and you believe that such killing took place while Rice was in the act of making such attack, or after some act done by Rice showizzg to the defendant, from his standpoint, or showizzg to you, eviderztly an intent on the part of Rice to make such attack, the defendant would be justified in such killing, and you will find the defendant not guilty.
“If you believe that defendant killed Rice, but that at the time Rice was not making, or about to make, such attack on defendant’s property as produced such fear or expectation, yet, if you believe said Rice was making, or was about to make, any other unlawful and violent attack upon the property of the defendant besides such as produced such reasozzable expectation, or fear, or if it reasonably appeared to defendazzt from his standpoint that by the acts, or words coupled with the acts of Rice, that Rice was making, or was about to make such other unlawful and violezzt attack, and that the defendant killed Rice while Rice was in the very act of making such other unlawful azzd violent attack, then such killing would be justified in law, and you will find the defendant not guilty. Yet, to find the killing so justified in repelling this character of attack, if any, on his property, such as did not produce a reasonable expectation or fear of death or some serious bodily injuz-y, the defendant must have resorted to all other means for the prevention of the injury except retreat, and every other effort in the defendant’s power must have been made by the defend*34ant to'repel the aggression before he would be justified in such killing.”
In article 572, Penal Code, it is provided: “Homicide is justifiable also in the protection of the person or property against any other unlawful and violent attack besides those mentioned in the preceding article, and 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; and any person interfering in such case, in behalf of the party about to be injured, is not justified in killing the aggressor, unless the life or person of the injured party is in peril by reason of such attack upon his property.”
Article 575: “When under article 572, a homicide is committed in the protection of property, it must be done under the following circumstances. * * * Every other effort in his power must have been made by the possessor to repel the aggression before he would be justified in killing.”
We deduce from these articles the following rules: *
If the attack upon the property is such as to produce in the mind of the owner or person interfering, a reasonable apprehension or fear of death or serious bodily harm to the owner or person interfering, either may act at once, without resorting to other means to prevent the attack or protect the property. But, if the property of the owner is attacked not in such manner as to endanger life, etc., every effort must be made to repel the aggression in order to justify the homicide. This proposition in substance was given in charge to the jury, following the rule in Lilly v. The State, 20 Texas Ct. App., 1.
But suppose, as is very clearly indicated in this record, it was the purpose of Rice to take the plow and oxen from the accused. Evidently this would have been unlawful, and the attempt to seize the property aroused the passions of the accused to such an extent as to render the mind incapable of cool reflection, to such an extent as to rebut the presumption of malice, the killing would be manslaughter only, though the defendant did not resort to all other means to prevent the seizure of the oxen.
This phase of the case is not submitted to the jury, and though no instructions were requested bearing upon it, stil] under the facts of this case the omission was clearly calculated *35to injure'the rights of the appellant, and the judgment should ■be reversed because of this error.
Opinion delivered June 27, 1888.This is the second appeal, and we have very carefully read the statement of facts on both appeals, and our deliberate conclusion is that this judgment should not stand, because we believe there is no satisfactory proof of murder of the first degree. There are some slight circumstances tending to establish express malice, but when we look to the facts immediately surrounding the homicide, express malice is clearly negatived, and we are not willing that this verdict should stand as a precedent. The judgment is reversed and the cause remanded.
Reversed and remanded.