At a former day this case was affirmed. The appellant has filed a motion for rehearing in which the judgment and opinion affirming has been severely criticised. I will notice such of the assignments as I deem necessary to a disposition of the case.
First. It is insisted that the appellant, having been placed on trial for manslaughter only, the question of provoking the difficulty is not in the case. To properly appreciate this question, it is necessary to state briefly a history of the case. Don Gray was indicted by the grand jury of Llano County, charged with murder in the first degree *Page 477 of Will Phillips. The venue was changed from Llano to Burnet County. There he was placed upon trial for murder in the first degree, was acquitted of both degrees of murder, but convicted of manslaughter. From that conviction an appeal was prosecuted to this court. The judgment of conviction was set aside and the case remanded for a new trial, Judge Ramsey delivering the opinion of the court and Judge Brooks dissenting. (55 Tex.Crim. Rep..) Upon that trial in the lower court, an application was made by the defendant for an order to exhume the body of Phillips, and that an autopsy be made for the purpose of determining the entry and range of certain bullets — there being a controversy as to whether Phillips was shot in front or in the back. Because of the refusal of the lower court to make such order, this court reversed and remanded. A motion for rehearing was filed by the State and ably argued and presented. The court adhered to its original opinion.
In that case Judge Brooks based his dissent upon the theory that it was wholly immaterial where Phillips was shot, or who fired the first shot, as Gray had forfeited his right of self-defense by provoking the difficulty, and thereby causing Phillips to attack him, and therefore the autopsy would be wholly immaterial. The court, however, speaking through Judge Ramsey, held:
"We reaffirm our opinion that the evidence in this case did not conclusively show that the acts and conduct of appellant at the time were of such nature and character as would, as a matter of law, make him guilty of provoking a difficulty so as to cut off wholly his right of self-defense. This was, as we have stated in the original opinion, the judgment and belief of the learned trial court, and on this theory the whole case in the court below seems to have been tried. It is well settled in this State by an unbroken line of decisions that no defendant in any case can be or has ever been held to be guilty of provoking a difficulty unless his intent so to do was gathered from the testimony. It is equally well settled that this question of intent is a question for the jury. The issue and matter of provoking a difficulty implies of necessity a certain craftiness and design. It implies of necessity an intent and purpose on the part of the person killing a disposition or purpose to do some act, the effect of which shall be to cause his adversary to attack him, so that by appearance, at least, he shall be protected by law, and the death have the appearance of being in self-defense, when in truth it was in pursuance of a purpose either to kill or injure his enemy. Whether such design exists in any given case is, of course, a matter for the jury, and such intent a question for the jury in this case. It would be an idle mockery to say, in a case where the law says that by an outrage against the wife of his bosom and the mother of his child, with the defendant's mind so wrought up and wrought upon as to render it incapable of cool reflection, that he should, merely because of some word or abuse, forfeit his right of self-defense. The law in this case is, if appellant had believed, as *Page 478 under the facts he was justified in believing, that the deceased, who was his friend, had, under the sanctity and protection of his home, as a guest, insulted his wife by making indecent proposals to her, that this is an adequate cause rendering his mind incapable of cool reflection. The law says again that in such state of case he has a right to go to deceased; he has the right to demand an explanation. He has a right under the law to arm himself, if his purpose be for his own protection, only in the event of an attack by his adversary; and to say that in such a case that he shall be held down by the strict rules of the law, to use only the soft speech of the drawing-room or the suave language of diplomacy, is to make the right which the law gives him pure mockery. The law in its wisdom wisely provides that whether in any given case he shall be held guilty of provoking a difficulty, so as to cut off his right of self-defense, must, as a matter of fact, be a matter of intent to be gathered from all the circumstances. This is no new doctrine in this State. Among the earliest decisions of this court on this question is the case of Shannon v. State, 35 Tex.Crim. Rep.; 28 S.W. Rep., 687; 60 Amer. St. Rep., 17, rendered by Judge Simpkins. In that case, it seems that the deceased had made some remark concerning the defendant, in the presence of ladies of their acquaintance, in substance, to the effect that he was a coward. He was approached by Shannon and said, in reply to a request for an explanation, "What I said then, I say now." Appellant then replied, "If you say I am a damned coward, you are a damned liar." Deceased again repeated, "What I said then, I say now," and appellant said, "You are a lying son of a bitch." In this case, when the first inquiry was made by appellant as to whether deceased had mistreated his wife, there was no denial; on the contrary, there was a substantial admission of the insult. The deceased's reply is, "I don't blame you for being mad. I would be mad, too; but I don't intend to take any of your abuse." It is in effect saying: "I did insult your wife. Do your worst." In the Shannon case, summarizing the matter, Judge Simpkins says: "To concede the remark was in fact made, it simply tends to prove that appellant had a grievance which impelled him to seek an explanation, to wit, that deceased had characterized him, in the presence of ladies, as a coward. But the vital question in the case, whether the interview was sought for the purpose of provoking a difficulty, must be clearly shown by the facts attending it, and not alone by the remarks of an excited boy amidst the bloody circumstances of his first difficulty. We do not feel satisfied with the verdict, and think a new trial should have been granted." This case and the doctrine here laid down has been followed with approval in many cases, of which the following are a portion: Winters v. State, 37 Tex.Crim. Rep., 40 S.W. Rep., 303; Airhart v. State, 40 Tex.Crim. Rep., 51 S.W. Rep., 214, 76 Amer. St. Rep., 736; Young v. State, 41 Tex. Crim. 442, 55 S.W. Rep., 331; Hall v. State, 42 Tex. Crim. 444, 60 S.W. Rep., 769; *Page 479 Melton v. State, 47 Tex.Crim. Rep., 73 S.W. Rep., 822; Beard v. State, 47 Tex.Crim. Rep., 81 S.W. Rep., 33; Craiger v. State, 48 Tex.Crim. Rep., 88 S.W. Rep., 208; Craiger v. State (on rehearing), 48 Tex.Crim. Rep., 88 S.W. Rep., 208; Keith v. State, 50 Tex.Crim. Rep., 94 S.W. Rep., 1044; Mitchell v. State, 50 Tex.Crim. Rep., 96 S.W. Rep., 43; Sanders v. State, 50 Tex.Crim. Rep., 97 S.W. Rep., 1046; Stewart v. White, 52 Tex.Crim. Rep., 106 S.W. Rep., 685.
"To hold, as a matter of law, in this sort of a case, that by precipitancy of speech, even by characterizing [words] as insulting as those set out in the statement of facts, appellant shall be held to forfeit his right of self-defense, is not absolutely to be assumed in the trial of such a case. To say that appellant has indeed the right to demand an explanation, the right to seek out the despoiler of his home or the author of the insult to his wife, and yet to say to him that every inconsiderate speech shall deprive him of the right of self-defense, is to make the right which the law grants him worse than useless. It is on a par with the judgment of Portia, which did indeed decree to Shylock his pound of flesh to be taken from Antonio's bosom, but with it ran the judgment, if in so doing he shed one drop of Christian blood, that all his fortune be confiscated unto the State of Venice. Such a position as we conceive can not be sustained in law or in reason, and is opposed to every generous impulse of humanity."
When the question of provoking the difficulty was submitted by the lower court on that trial, the defendant was upon trial for murder, and it may be conceded that it was then legitimately one for the consideration of the jury. They were the exclusive judges of the testimony and the credibility of the witnesses; they would have had the right, if they found the evidence fabricated to conceal the real motive for the killing, to disregard the testimony as to the insulting language and conduct of Phillips to and concerning Gray's wife, as testified by Gray and Mrs. Gray. If they had seen proper to have done so, then the question as to whether Gray provoked the difficulty would have been a legitimate subject of inquiry and consideration. But, as said by Judge Ramsey, they did not reject the testimony of Gray and his wife as to the insulting language and conduct, they believed it; and it is only upon that theory that they could have acquitted of murder and found him guilty of manslaughter. Judge Ramsey thus wrote: "The verdict of the jury of necessity affirmed their belief that deceased had been guilty of insulting conduct towards appellant's wife. There was no other issue or ground upon which they were justified in finding him guilty of manslaughter." 55 Tex. Crim. 108.
The whole opinion of Judge Ramsey, when read with reference to the facts in this case, and the cited case of Shannon and other authorities should be conclusive that this court was then of the opinion that provoking the difficulty had ceased to be an issue in the case. If not, *Page 480 then the opinion of Judge Brooks was right, and this case ought not to have been reversed upon the point on which it was reversed, as the defendant had been found guilty of manslaughter.
Gray v. Phillips, 117 S.W. Rep., 870, should not be considered as authority in this case. That was a civil action for damages brought under section 26, article 16 of the State Constitution, and articles 3017 and 3019 of the Revised Civil Statutes. The twenty-sixth section provides that such action may be brought "without regard to any criminal proceeding that may or may not be had in relation to the homicide." The question, therefore, of the elimination of malice or murder, did not and could not have arisen in that case as in this, by reason of the former trial and acquittal of the defendant for murder in the criminal case.
The charge upon provoking the difficulty with intent to kill was properly given in that case. The court was trying the case upon the theory of an unlawful killing, without reference to the grade or degrees of the offense, and was not confined to the question of murder in the first or murder in the second degree, or manslaughter, and it was wholly immaterial as to whether the killing was upon malice or not, except as to the extent of the damages sought to be recovered, if such killing was unlawful, or even unnecessary. That case recognizes fully the principle that where a defendant provokes a difficulty with intent to kill, or do serious bodily injury, such killing would have been upon malice and nothing short of murder, and refers to a great many cases of this and other courts to sustain that proposition. Justice Rice is careful in his very able opinion to keep thoughtfully in view all through the case that it devolved upon the plaintiff to show only an unlawful killing, without reference to the grade of homicide.
The principles governing in that case as to evidence are entirely different from those governing when applied to a criminal action. In that case, the question of reasonable doubt did not and could not apply. The plaintiff was required to recover upon a preponderance of evidence only, and could have recovered against the defendant for a failure to exercise the proper degree of care as well as if an intentional unlawful killing had been shown.
To hold that provoking a difficulty is in this case would be to require of me to announce the very strange doctrine that manslaughter includes malice. This I can not do, because whenever a killing is shown to have been done upon malice it is then murder, and nothing less than murder, made so both by our statutes and the common law.
The testimony shows that the necessity was occasioned by Phillips' conduct to Gray's wife to seek a meeting with Phillips for the purpose of demanding an explanation from Phillips as to his conduct towards Mrs. Gray. Under the law of this case, and it is clearly settled, Gray not only had a right, but it was his duty under the circumstances to arm himself, see Phillips and demand an explanation of him. The testimony shows that the only purpose Gray could have had in calling *Page 481 upon Phillips at the time and place he did was for this purpose, and the jury so found upon the former trial. 55 Tex. Crim. 90, 108. Gray did call upon him, and demand an explanation of his conduct, and instead of Phillips giving him a satisfactory explanation, he in effect admitted the insulting language, and repeated the insult to Gray's face in a defiant manner. Gray had the lawful right to reply to Phillips in lanquage of the most forcible kind, Phillips being the aggressor from the beginning. In King's case and other cases, this court has so held, and further held that he was not required to seek in a quiet and peaceable manner the man who had used insulting lanquage. Before the defendant can be deprived of his perfect right of self-defense by reason of language spoken, he must have been the aggressor, and must have intended to provoke his antagonist to do some act that he would not have done — in other words, caused his antagonist to attack him so as to afford the defendant, under a pretext of exercising the right of self-defense, an opportunity to kill the party so provoked. It is not all violent language spoken in the heat of passion that can be construed either in law or in fact as a provocation. If Gray did use violent language to Phillips, the language was caused in reply to Phillips' language. Phillips being the aggressor, Gray had a perfect right to reply in kind, without placing himself in the attitude of being charged with provoking the difficulty. The law itself, Phillips having insulted Gray's wife, makes Phillips' conduct the provocation (P.C., art. 702, sub. 4, and art. 699), and if Phillips had killed Gray, under the circumstances, he would have been deprived of his perfect right of self-defense by reason of his conduct and words spoken to Gray after his first meeting after the insulting conduct to Gray's wife. These words are, under the statute (art. 702, Penal Code), the provocation to reduce the offense from murder to manslaughter, and this is the only kind of language (insulting language to a female relation) known to the law as being sufficient within itself to reduce the homicide from murder to manslaughter, and is, under article 599, sufficient within itself "reasonably calculated to provoke a breach of the peace." Judge Ramsey, in the Akins case, 56 Tex.Crim. Rep., 119 S.W. Rep., page 863, quoting from Judge Brooks' opinion in McAnear's case, 43 Tex.Crim. Rep., 67 S.W. Rep,, 117, and applying it to the Akins case, says: "That deceased, when accosted in respect to the alleged slanderous statements concerning his wife, admitted that he had insulted her; this would constitute a new and aggravated insult and one doubly calculated to inflame his mind to such a degree of passion as to render it incapable of cool reflection." In other words, this language is sufficient to "provoke a difficulty," thereby making Phillips the aggressor at the time of and immediately preceding the homicide to such an extent that if Gray had immediately, without replying to him, shot and killed him, to have made Gray guilty of no higher offense than manslaughter. Phillips having used the insulting *Page 482 language, and thereby made himself the aggressor, Gray had the right to reply in kind. Had Gray been present when Phillips insulted Mrs. Gray, and the language was then used by Phillips, it would not have been debatable that Phillips provoked the difficulty. The same rule applies by statute to the first meeting after information received by Gray. He not only had a right, but it was his duty in protecting the honor of his wife, to denounce such conduct then and there by the use of the most expressive and forcible language, without the imputation of provoking the difficulty. The law gives him this perfect right and imputes to Phillips' language a certain legal effect by which he is madeipso facto the aggressor. Blackstone says self-defense is the "defense of one's self, or the mutual and reciprocal right of such as stand in the relation of husband and wife, parent and child, master and servant. In this case, if the party himself, or any of these his relations, being forcibly attacked in his person or property, it is lawful for him to repel force with force, and a breach of the peace that happens is chargeable only upon him who began the affray. The law in these cases respects the passion of the human mind, and when certain violence is offered to a man himself, or those to whom he bears a near connection, makes it lawful in him to do himself that immediate justice to which he is prompted by nature and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means adequate remedy for injuries accompanied with force, since it is impossible to say to what wanton lengths the rapine and cruelty, outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another." (Cooley's Blackstone, 3d book, pp. 2 and 3.) In fact, the character of language used by Phillips to Gray in law carries more legal force (or violence) with it than if he had made "an assault and battery" so slight as to show no intention to inflict any injury upon Gray, because article 701, Penal Code, says: "Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, or to injure the property unaccompanied by arms, are not adequate cause," to reduce to manslaughter, while insulting words or conduct of the person killed toward a female relation of the party guilty of the homicide is, under article 702, Penal Code, sufficient provocation within itself to reduce the offense to manslaughter. Force is a matter of law, and must be applied as the law dictates. It can neither be greater nor less than the law makes it. If the law has made "insulting language to or concerning a female relation" force (or violence), and of a higher degree than assault and battery so slight that show no intention to inflict pain or injury, and has placed such language or conduct upon a plane as to force or violence with "an assault and battery" by deceased causing pain and bloodshed (art. 702, Penal Code), then it is the duty of this court to accept and construe the term "force" as the lawmakers have written. Now, when Gray accosted Phillips, and demanded to know why *Page 483 he treated Nora as he did, Phillips did not deny having used insulting language, but admitted, and told Gray that he would not take any of his abuse. At the time of this first provocation, on the part of Phillips, he was standing near Gray with an open knife in his hand, prepared to make good his implied threat. The law denounces this language and conduct as a provocation and calculated to create a breach of the peace. Blackstone says, "that breach of the peace which happens is chargeable upon him only who began the affray." If Gray had a right to arm himself, seek Phillips and demand an explanation of him, why he insulted Nora, and doing so the insult was repeated, then unquestionably the provocation and the breach of the peace following is clearly upon Phillips. The law puts it there. Gray was within his lawful rights. Phillips was not. Gray could not have been prosecuted and lawfully convicted under article 599, Penal Code, for using language calculated to provoke a breach of the peace. Why? Because Phillips was the wrongful aggressor, and Gray was simply repelling force with force, and the penalty is against the only one who was the aggressor. It must be kept in view that the appellant, when again placed upon trial, was being tried for manslaughter only, and not for murder in either degree — murder having been eliminated by the first trial. The opinion now complained of by appellant is so at variance with the former opinion of this court when the case was before us on the first appeal that both certainly can not be the law of this case. I therefore think that the last opinion by this court is subject to the criticism urged by appellant.
I have so far considered this case upon the idea that the question of provoking the difficulty is not in the case, and should not have been submitted in any form. I will now consider the other assignments of error complained of by appellant, treating them as if the question of provoking the difficulty was in the case.
Second. That paragraph thirteen of the court's charge is not the law applicable to this case.
That paragraph is as follows: "You are instructed that if you find from the evidence in this case beyond a reasonable doubt that the defendant went to where the deceased was killed and by his own wrongful act (if any there was) brought about the necessity of killing the deceased, Will Phillips, and that defendant provoked a difficulty with said Will Phillips with the wrongful and wilful intention to take the life of deceased or inflict upon him serious bodily injury, and you further find that the defendant, knowingly and wilfully and with the specific intention, and with a view thereto, used toward deceased language or did acts, or did both, for the purpose of causing deceased to attack defendant, that he might have a pretext to kill or inflict upon deceased serious bodily injury, and you find that such language or conduct or acts on the part of the defendant (if any such there was on the part of defendant) was reasonably calculated to bring on the difficulty and cause the deceased to attack the defendant, and you *Page 484 further find from the evidence beyond a reasonable doubt that the defendant in pursuance of a wrongful, wilful and previously formed design to provoke a difficulty with the deceased for the purpose and with the intention of killing him or inflicting upon him serious bodily injury, and you further find from the evidence beyond a reasonable doubt, that intentionally and with a view thereto, he shot with a pistol and thereby killed deceased, then you are instructed that the defendant's plea of self-defense will not avail him in this case, and if you so find from the evidence beyond a reasonable doubt the homicide would be manslaughter under the law herein given you in this charge."
This, under article 708 of the Penal Code, is not manslaughter, but murder, made so by the statute itself, which reads: "Though the homicide may take place under circumstances showing no deliberation, yet if the person guilty thereof provoke a contest with the apparent intention of killing or doing serious bodily injury to the deceased, the offense does not come within the definition of manslaughter." This is but a statutory declaration of the rule as to malice, as it is under the common law. Malice is that which makes murder of a culpable homicide and distinguishes it from all other species of homicide. Judge Ramsey, in his opinion, treats this charge, or rather so much of it as speaks of manslaughter, as "surplusage." The doctrine of "surplusage" has no application whatever to a charge of the court, especially when a charge contravenes a plain statutory provision and is harmful to the defendant. The very object of articles 715 and 716 of the Code of Criminal Procedure is to prevent and prohibit the court in his charge to the jury using any "surplusage" as the court is required to state plainly the law applicable to the case, and to state it in such a manner as not to arouse the passions of the jury or unduly impress them as to his views or opinions as to the weight of the evidence. The facts being exclusively for the consideration of the jury, this is a novel application of the doctrine of surplusage, to say the least of it.
This paragraph of the charge injected into the case, the question of malice for which the defendant has been tried and acquitted, this certainly was hurtful to the defendant, and had a tendency to wrongfully impress the jury as to an issue not in the case, and to arouse their passion against the defendant, thereby in all probability causing them to visit the extreme penalty of five years upon the defendant. Reinhardt v. State,60 Tex. Crim. 662, 133 S.W. 265. The defendant was upon trial for manslaughter, and it was his right to have the law of manslaughter and not murder applied to his case. This the court did not do; but gave to them an instruction substantially as to murder and called it manslaughter. In other words, they tried him for murder, of which offense he had been acquitted, and convicted him of manslaughter. This, the Constitution of this State prohibits. The court could, with as much right and propriety have given *Page 485 the statutory definition of murder and called it manslaughter as the giving of this paragraph and calling it manslaughter. Either would have been an evasion.
No one will for a moment claim that the lower court in the face of the defendant's former acquittal could have again placed him upon trial for murder. Bill of Rights, sec. 14, C.C.P., art. 762.
The defendant has not denied the right of the State to introduce all of its testimony in this case, whether the same be "murder evidence" or not. No such question is raised in this case. Upon the contrary, the appellant in his briefs, oral and written argument, and in his motion for rehearing, states that he is not raising or presenting such a question; that no such question was presented below by any objection to testimony, bills of exception, special charges or motion for a new trial. So far as this case is concerned, no effort has been made as was sought in the Cornelius case to acquit the defendant of manslaughter, because the facts make a case of murder and not manslaughter. Upon the contrary, it is claimed by appellant that the facts taken in their most favorable view for the State make no higher offense, if any, than manslaughter.
As the appellant was on trial for manslaughter and manslaughter only, the court should have submitted the law applicable to such a case, and not have confused it by abstract propositions applicable to some offense for which the defendant was not being, and could not be, tried. Again, having given the quoted charge, it is made the more harmful because the converse of the proposition, to wit: if he provoked the difficulty, but only to inflict less violence than death or serious bodily injury, was not given.
Then again, if it be conceded that the court ought to have submitted the question of provoking the difficulty to the jury at all, this charge is radically defective, as it makes the whole question depend alone upon the intent of the defendant without any reference to the effect such intent, words, acts or conduct of the defendant may have had upon the deceased in causing him to make an attack upon the defendant by reason of such words, acts or conduct. It is not sufficient that the defendant may have intended to provoke the difficulty and may have used words and done acts calculated to provoke the deceased, but the effect of such provocation must have caused the deceased to attack so as to afford the defendant a pretext to kill or do serious bodily injury. This is omitted from the charge of the court, and therefore error.
Third. The court having given paragraph thirteen, appellant in the court below sought to modify its hurtful effect by requesting special charge No. 6. This special charge is as follows:
"You are further charged as a part of the law applicable to this case that if you believe from the evidence that the defendant's wife informed him of the insulting language or conduct towards her by the deceased, and that he believed the same to be true, and that defendant *Page 486 armed himself and sought a meeting with the deceased for the purpose of demanding an explanation from the deceased of such language or conduct, and when they met the first time, after defendant had been informed of such insulting language or conduct, if he was, the deceased failed to make any explanation, then if you believe it was simply the intention and purpose of defendant to curse and abuse the deceased on account of such language or conduct, and that it was not his purpose to provoke a difficulty with the deceased, in order that he (defendant) might have a pretext to kill the deceased, or to inflict upon him serious bodily harm, and you believe from the evidence that the deceased, in resenting such cursing and abusing of the defendant, if any, made an assault upon the defendant with a knife, or it reasonably appeared to the defendant that it was the purpose of deceased to make an assault upon defendant with a knife, calculated to inflict upon defendant serious bodily harm or death, and the defendant fired and killed deceased in self-defense, then you can not convict him of manslaughter."
While this charge may not be technically correct, it is sufficient to call the court's attention to the issues involved, and the court should have instructed upon this theory. The defendant's wife had been grossly insulted by the deceased, and when the defendant called upon him for an explanation no explanation was given, but the deceased in effect admitted in a defiant manner the insulting language and conduct. This ordinarily would be within itself sufficient to arouse the anger, rage and resentment of any man. At all events, it was a question of fact. If, therefore, the evidence raised the issue (and we think it did) as to the purpose and intent of the defendant to reply in kind and return insult for insult, and not to provoke a difficulty for the purpose of causing the deceased to attack him so as to afford him a pretext whereby he could kill the deceased, or do him serious bodily injury, the court should have, under appropriate instructions, submitted the question to the jury, the court having submitted paragraph thirteen. This special charge was refused, and this theory was nowhere submitted. It is said in Thornton v. State, 65 S.W. Rep., 1105, where a similar question was presented, "the law of provoking the difficulty is predicated upon the intent with which the defendant commits the act, and upon the reasonableness of the provocation." And in Reinhardt's case, supra, it is said, "first, any fact that would lead to an acquittal becomes of the greatest importance to an accused, and the proper and correct enforcement of the law, and the elimination of which fact would be seriously detrimental to the enforcement of the law as well as the legal right of a party accused of crime. The omission of a proper charge in regard to an extenuating circumstance should be, and is always held to be, reversible error. This proposition of law is not to be questioned. The second proposition is, that whether it leads to an acquittal or not, if the fact leads to, or would have the effect of probably minimizing the punishment below the maximum, *Page 487 then it is of equal importance as if it would lead to an acquittal." These two and other cases of kindred import are conclusive of this question.
Fourth. Appellant complains of the fourteenth paragraph of the court's charge, which is as follows:
"If, on the other hand, you find the defendant called the deceased out to interrogate him concerning language and conduct attributed to deceased concerning defendant's wife, and with no intention to kill or inflict on deceased serious bodily injury, then you are instructed that defendant's right of self-defense would in no way be limited, and if under such circumstances the deceased attacked defendant with a drawn knife or otherwise, or it reasonably appeared to the defendant that such was the intention of the deceased, then the defendant would have the right of self-defense as explained to you in this charge."
By this charge the burden of proof is shifted to the defendant from the State. The jury may not have been able to have found as a fact that the defendant called the deceased out and interrogated him concerning language, etc., while they may have had a reasonable doubt as to whether he did or not. The vice, therefore, of this charge, is in failing to instruct the jury that if they had a reasonable doubt as to those facts to acquit the defendant, while the charge itself requires the jury to find affirmatively such facts before they could acquit. See Fuller v. State, 54 Tex.Crim. Rep., 113 S.W. Rep., 541; Vann v. State, 45 Tex.Crim. Rep., 77 S.W. Rep., 813; Jones v. State, 13 Texas Crim. App., 1; Dent v. State, 46 Tex. Crim. 166; Shambeger v. State, 24 Texas Crim. App., 433; Dubose v. State, 10 Texas Crim. App., 230; Humphrey v. State, 18 Texas Crim. App., 302. The defendant sought by special charges 1 and 10 to correct paragraph fourteen, special charge No. 1, being as follows: "In this cause, you are further instructed that although you may believe from the evidence that the language used by the defendant towards deceased, if you believe he used such language, was calculated to provoke deceased to combat, still the defendant would not be deprived of his perfect right of self-defense under the law unless you further believe beyond a reasonable doubt that it was the intention on the part of the defendant to provoke the deceased to such combat, and that it should have that effect." No. 10 is as follows: "The burden of proof which rests upon the State to overcome the presumption of innocence and establish the guilt of the defendant by legal and competent evidence to the satisfaction of the jury beyond a reasonable doubt never shifts from the State to the defendant, and the State must establish every necessary and material issue in the case to the satisfaction of the jury beyond a reasonable doubt, and the defendant is not required to prove his innocence." Both of these charges were refused by the court, and the refusal to give these charges were duly excepted to in defendant's motion for a new trial. I do not find in the record where there is any exception taken eo nomine to paragraph fourteen of the *Page 488 court's charge, but these special charges having been requested by the defendant and having been refused by the court, and such refusal having been excepted to on motion for new trial cures the failure of appellant to except in motion for new trial to paragraph fourteen directly.
Fifth. Appellant complains of the court's charge upon the question of self-defense, and submits this proposition: "Where the evidence adduced tends to show that deceased when shot was from six to twelve feet distant and approaching defendant for the purpose of attacking him with a drawn knife, it is prejudicial error for the court to instruct the jury upon the right of defendant to kill in case the deceased had made an actual attackon him, and thus turn the issue of self-defense upon a theory not based upon the evidence."
This assignment of error, we think, is well taken. This was not a case of actual danger, but of apparent danger only. The law as to apparent danger should have been submitted fully as claimed by appellant. See Brady v. State, 65 S.W. Rep., 521; Seeley v. State, 43 Tex.Crim. Rep., 63 S.W. Rep., 310; Phipps v. State, 34 Tex.Crim. Rep., 31 S.W. Rep., 397; ib., 657,35 Tex. Crim. 2; Shannon v. State, 28 S.W. Rep., 687.
Sixth. The appellant assigns as error the refusal of the court to permit him to show on the trial of the case that the autopsy ordered by the court was at the urgent request of the defendant, and that in order to procure the same the defendant, of his own volition, offered to and did pay all the expenses incident to such autopsy, and the refusal of the court to permit the defendant to show these facts as is shown by the bill of exceptions No. 5.
I think the court was in error. The defendant claims that at the time he shot the deceased, and when the first shot was fired, the deceased was advancing upon him in a threatening manner with an open knife in his hand, and that at that time he shot the deceased in front. Three wounds are shown to have been inflicted, one on the side of the head just above the ear, one just below the right shoulder blade ranging diagonally through the body, coming out near the left nipple, and one in the back lodging in the front part of the body near the deceased's right groin. These last two shots were clearly disclosed, both as to entrance and range, by the autopsy. The defendant's theory is that the first shot entered from the front, and if defendant's testimony is true, as there were only three shots fired, the one in the head above the ear must have been first, though the defendant claims, and has always claimed, that he did not know, and does not know which was the first shot that struck the deceased, though as said before, the deceased was advancing upon him. It therefore became a very material inquiry as to the good faith and belief of the defendant as to the position of the deceased when the first shot was fired. The fact that the autopsy was made at the request of the defendant, and that he paid the expenses thereof, is a strong circumstance bearing upon the good faith *Page 489 and belief of the defendant as to the position of himself and the deceased when the first shot was fired. I therefore think that this testimony ought to have been admitted.
For the errors herein pointed out and discussed this case ought to be reversed and remanded for a new trial. I enter my dissent.