In his motion for rehearing appellant contends that all the evidence both of the State and appellant shows that he acted in self-defense and therefore his conviction is not justified. The State's first witness, Robert Fulton, testified in substance that he, in company with appellant and others, went to a creek at a point about one hundred yards below the home of deceased's father to go "swimming;" on the way to the creek they passed the home of the deceased's father and a dog ran out and barked at them; appellant threw a rock at the dog and deceased's father asked him not to "chunk" the dog, whereupon appellant remarked, *Page 149 "Call your dog back." About the time they were ready to go into the water someone said, "Here comes that Mexican boy." Witness saw deceased with a rifle, the barrel of which he had pressed against appellant's abdomen. Witness heard a shot and saw appellant take the gun from deceased who was lying on the ground, and throw it into the creek. Appellant did not attempt to shoot deceased any more.
The State's second witness, Johnny Williams, testified in substance that he was present at the time and place of the shooting; he heard deceased "holler" while he was still at the house but did not understand what he said. Appellant replied, "You go to hell." Soon deceased came to the swimming hole and asked appellant if he was trying to get smart with him; appellant replied with some ugly words, at which time he had a pistol in his hand behind his body; deceased had a rifle in both hands pointing it towards appellant; he saw deceased put the end of the rifle into appellant's stomach; appellant knocked the gun up and it fired; then appellant shot deceased. After deceased fell he saw appellant pick up the rifle and throw it into the creek.
Mrs. Ada Thomas testified that she was at her father's home located on the south side of the creek. We quote from her testimony.
"The defendant and deceased were in sight of me when the shooting occurred. The deceased was standing between me and the defendant; they were facing each other. The deceased had his back towards me. I did not see the defendant before he shot the deceased. When the deceased fell the defendant grabbed the gun out of the deceased's hand, threw it in the creek and said, 'You ain't going to shoot me.' When the deceased was shot he had the gun lying on his arm. I don't know just how that gun was lying at the time the defendant shot. I didn't hear but one shot at the time of the killing but there could have been more than one. The way it was the defendant shot him and he fell and he ran, grabbed the gun out of his hand and threw it in the creek. Just before the defendant grabbed the gun out of deceased's hand he said, 'You are not going to shoot me with that gun'."
Appellant testified in his own behalf, in substance: That he and deceased had not had any trouble prior to the day of the shooting; that while he and his companions were at the swimming pool, getting ready to go in bathing, the deceased hollered at them saying: "You damned negroes get off of that bank," to *Page 150 which he replied, "You go to hell." After the remarks were passed deceased came to where appellant was and said, "What damn smart words were those," He then threw a gun into appellant's stomach; appellant knocked it away and the gun fired, whereupon he shot deceased; that he did so because he thought his life was in danger when he had a gun pointed at his stomach; that he believed deceased was going to shoot him; that appellant would not have shot deceased if he had not believed that deceased was ready to shoot him (appellant.)
Article 1207 P. C. provides that homicide is justifiable in the cases enumerated in the succeeding articles. Article 1223 P. C., which is one of the articles referred to, reads as follows:
"When a homicide takes place to prevent murder * * *, if the weapon or means used by the party attempting to commit such murder * * * are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury."
See McCoy v. State, 135 Tex.Crim. R..
Article 45, P. C. provides as follows: "The intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act."
In the instant case, all the evidence shows that deceased made an assault upon appellant with a deadly weapon. The presumption obtains that he intended to kill appellant or inflict serious bodily injury upon him. Appellant appears to have been justified in the conclusion that deceased intended to kill him or to inflict serious bodily injury. Under the circumstances he would be justified in the exercise of his legal right of self-defense to resort to such means and such force as seemed reasonably necessary to him to protect himself against such an unwarranted assault. See Smith v. State, 15 Tex. Cr. App. 338; Carson v. State, 43 Tex.Crim. R. and Clarkston v. State, 79 S.W. 304; Pittman v. State, 140 Tex. Crim. 264,144 S.W.2d 569.
It is not necessary to detail the evidence in the Smith case (supra), but in passing upon the question of the sufficiency of the evidence, Judge Hurt, writing for the court, said:
"Was the conduct of the deceased in this case of such character as was reasonably calculated to create in the mind of the defendant this apprehension of death or serious bodily harm? *Page 151 Could any other inference be drawn from his conduct than that he intended to murder the defendant? Was not this the only reasonable conclusion which could be made from the facts? If so, is it not reasonable and just to presume that the defendant believed his life to be in danger, and shot his adversary to save his life? If there be any force in facts, if there be truth in witnesses, if there be reason in man, the defendant certainly believed his life to be in extreme danger. Not thus to believe under the circumstances of this homicide would argue him insane. Do not the facts in this case bring the defendant clearly and fully within the rule stated above? If not, is it possible for a party accused of murder to make the rule a protection, notwithstanding the verdict of the jury? Or is this rule completely within the control of the jury, to be extended to or withheld from the defendant at their pleasure, be the evidence what it may? We are of the opinion that the evidence in this case fails to show the defendant guilty of murder, but, to the contrary, if such be possible, makes a case of self-defense beyond any sort of question, and that the verdict of the jury is not supported by the evidence."
See also Carson v. State, 43 Tex.Crim. R.; Green v. State,162 S.W. 1151.
Having reached the conclusion upon further examination of the facts that the evidence does not support appellant's conviction for the offense of murder, the motion for rehearing is granted, the order of affirmance is set aside and the judgment of the trial court is reversed and the cause remanded.
ON MOTION FOR REHEARING.