Genett, accompanied by Hargraves, went to the scene of the assault for the purpose of arresting the appellant. A warrant authorizing the arrest was possessed by Genett. On their arrival the shooting took place, the evidence as to the beginning of which was in conflict. Genett was acting chief of police.
According to the testimony of Mrs. Ida Brown, the mother-in-law of A.C. Rice, she was in the property known as the Travis Rooms while Rice and his wife, who lived there, had gone to a funeral. Appellant came to the rooms and put the witness out without her consent. She went to the police station.
Appellant testified that he built the Travis Rooms in 1919, and that at the time of the alleged offense he claimed to have owned them and believed that he was the owner. He had been told by the county attorney that if he got peaceable possession of the property, he would be within his rights to kill anybody who sought to take it away from him, and that acting upon this information, he and his wife went to the premises, each armed with a pistol. Quoting him, he said:
"The Rices were gone to the funeral on one of the Dice brothers. An old lady had charge of that property when I went down there. As to whether I threw her out of there — she went out herself. She said, `wait until I unlock the door and I'll come out.' That is what she said."
"We thought they were all at the funeral. * * * We went down there and the house was all locked up, and we went to the front door and shook it, and this old lady came to the front door and she said, `Wait until I unlock the door and I'll get out.'"
A.C. Rice testified that he was attending the funeral of his brother at the time of the shooting.
The Statute, Art. 1110, P.C., touching the law excusing a homicide when committed in the protection of property, reads thus:
"When, under article 1107, a homicide is committed in the protection of property, it must be done under the following circumstances:
1. The possession must be of corporeal property, and not of a mere right, and the possession must be actual and not merely constructive.
2. The possession must be legal, though the right of the property may not be in the possessor.
3. If possession be once lost, it is not lawful to regain it by such means as result in homicide. *Page 306
4. Every other effort in his power must have been made by the possessor to repel the aggression before he will be justified in killing."
We understand from the record, as revealed by the testimony of the appellant, that he claimed ownership of the property and believed himself to be the owner thereof. He knew the fact that the Rices were occupying the premises! that they had gone to a funeral; that they had locked the doors. It was his intent to take forcible possession of the property in the absence of the Rices. According to the testimony of Mrs. Brown, he did forcibly dispossess her. She testified also that this was done at the point of a pistol. That phase of her testimony the court improperly instructed the jury to disregard. It is upon these facts that the statute operates, and upon the application of the statute that the appellant's right, if any, to defend his possession of the property by attempting to commit the homicide must be tested. We confess that we are unable to conclude that there is evidence upon which the jury might have determined that at the time the shots were fired the appellant was the rightful possessor of the property. If his ownership be conceded, the possession was lost and his re-entry was unlawful.
Appellant refers to the Ledbetter case, 9 S.W. Rep., 60, as furnishing the precedent condemning the action of the court in refusing to charge an aggravated assault. In the present case, the court accorded the appellant the full right of self-defense. The only defensive theory presented by the appellant is that he was attacked in a manner which endangered his life. In Ledbetter's case it is said, in substance, that if the attack upon the property is such as to produce in the mind of the owner a reasonable apprehension of fear of death or serious bodily harm, the owner may act at once, without resorting to other means to protect his property, but if the owner of the property is attacked, not in such manner as to endanger life, every effort must be made to repel the aggression in order to justify the homicide. It is further said:
"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 ozen."
The plow and oxen were in peaceable possession of the accused and Rice sought to dispossess him thereof. In the present case, appellant's possession was neither peaceable nor lawful. *Page 307
According to the theory of the appellant, the only attack made was the one endangering his life or serious bodily harm. Against this he directed resistance and was accorded by the court the unqualified right of self-defense. According to the State's theory, there was no attack made by the injured party, but he was fired upon immediately upon his arrival. He indicated no purpose to take the property but it was his purpose to execute the warrant of arrest which he had in his possession. We are constrained to adhere to our former ruling denying the existence of evidence requiring an instruction to the jury upon the law of aggravated assault.
We also entertain the opinion, as stated on the original hearing, that the facts in evidence negative the condition warranting a homicide in the defense of property. The motion for rehearing is overruled.
Overruled.