Appellant has filed a motion for rehearing, in which he earnestly insists that we were in error in our original opinion in holding that the evidence raised the issue of assault with intent to murder, that is, to state it in another way, he insists that there was no evidence that appellant acted with malice at the time he fired the shot which was the basis for this prosecution.
We did not quote the testimony of the police officers at length in our former opinion, but undertook to state the substance thereof. In view of the motion for rehearing challenging the correctness of our conclusion upon this point, we condense from the statement of facts the testimony of L.V. Stuterville, one of the officers present upon the occasion. His testimony, substantially is: "That from the way appellant was sauntering along on the walk he looked suspicious, and we stopped the car and called him up to the car and told him we were two police officers, and wanted to talk to him; he said he lived on Swiss Avenue, whereupon we asked him what he was doing on Live Oak street. When we showed him we were police officers he seemed like he did not want to be investigated, and backed away from the car, and we both got out, and Plant walked up to him and told him he wanted to talk to him, and he pulled his gun out of his overcoat pocket and commenced to fire. Plant never took his pistol out until appellant got his gun out and commenced to fire; not until defendant went after his gun and pulled it. Appellant commenced to shoot before Plant drew his pistol; before Plant even went after his pistol the appellant was already shooting at him, so far as I could see; he shot his pistol before Plant got his gun. It looked to me like the negro pulled his gun and fired, and about that time Plant got his. He had not already reached for his pistol before the negro fired; I was looking at both of them."
To our minds it is clear that the testimony just set out fairly raises the issue of an assault with malice. It was, of course, a question of fact to be determined by the jury. The issues are fully presented by the court in his charge, which submitted both the issue of assault with intent to murder and aggravated assault. The jury had an opportunity to solve that question in favor of the appellant, if they had seen fit to do so under the testimony. For us to assert that the issue of malice had no support in the evidence would be to substitute our judgment in that particular for that of the jury. We still believe the issue was fairly raised, and that appellant's rights were guarded at all points *Page 63 by the charge of the court, and that we would not be authorized, upon an issue of fact, to disturb the verdict. This case in no way militates against the doctrine announced in Brown v. State, 87 Tex.Crim. Rep.. In that case two officers were unlawfully attempting to make the wife of deceased give them some information which they believed she could impart, and had put a rope around her neck and were pulling her up off of the floor. She was screaming and calling for help. The deceased, her husband, who was in the lot at the time, heard her out-cries, and attempted to go to the house to her assistance, whereupon Brown intercepted him and upon the deceased insisting upon his right to go to the house, and procuring a stick and approaching Brown, the latter killed him. In that case it was held, and properly so, that deceased had the right to go to his house and to the protection of his wife, who was being dealt with in an unlawful manner, and if necessary, to procure arms in an effort to protect his home and family, and that Brown, under the circumstances, had no right to kill him.
Being unable to agree with appellant's contention that the issue of assault with intent to murder was not raised, we adhere to our former opinion, and the appellant's motion for rehearing is overruled.
Overruled.