Appellant was convicted of murder in the second degree, his punishment being assessed at eight years confinement in the penitentiary. *Page 654
Proper exception was taken to the following charge: "Now if you shall believe from the evidence that defendant, Elbert Eads, killed A.J. Hopkins, yet if you believe the deceased made an attack on the defendant then indicating a purpose to take the life of the defendant, or of doing him some serious bodily injury; or if from the acts or words of the deceased at the time it then reasonably appeared to the defendant that he was in danger of losing his life, or of suffering serious bodily injury at the hands of the deceased, even though there was no actual danger in fact, but only apparent danger," etc. We think the exception is well taken. There was no evidence of any actual attack in this case. The evidence was one purely of demonstration on the part of deceased as if to draw a pistol and appellant shot. Upon another trial the court's charge should be limited to the case as made by the facts. There was no occasion for submitting an actual attack, when there were no facts to support it. The State introduced no evidence to show an actual attack, and the defendant's evidence was purely and simply a demonstration as if to draw a pistol. It was not a case of actual but of apparent danger only.
It will also be noticed that the charge submits entirely the belief of the jury — not the belief of the defendant. If the defendant believed that deceased reached for his pistol, then to him there was apparent danger. It is not what the jury believed about it, but it is what the defendant believed at the time. The appearance of danger is to be viewed from his standpoint and as he saw it and not as the jury believed about it.
An exception was reserved to the thirteenth subdivision of the charge, which reads as follows: "Now, if you shall find that the deceased made threats against the life of the defendant, and that such threats had been communicated to the defendant before the difficulty in which deceased lost his life, or if you find that report of threats had been communicated to the defendant whether they were actually made or not, and you find at the time of the homicide, if any, the deceased did some act which then reasonably indicated to the defendant that he was then in imminent and pressing danger at the hands of the deceased of losing his life or of suffering serious bodily injury, and that deceased was then about to put such threats into execution, and acting upon such danger or apparent danger, as it reasonably appeared to the defendant at the time, viewed from his standpoint, and under such circumstances he shot and killed the deceased, he would be justified." etc. The objection to this charge was that it required the jury to find that threats had actually been made by deceased against the defendant, and in fact it is not necessary that such threats should have been actually made if they had been conveyed to defendant and he believed same he had the right to act upon threats, even though such threats had not been made and such information given to the defendant may have been false. The appellant asked a charge, which was given, which correctly presented the law of the case, but the trouble here is, the court had given two charges which are contradictory, the court's charge being error. In *Page 655 the court's charge the jury was required to believe that the threats had been made, and that they should believe that the reported threats had been communicated to defendant. Again it may be stated these charges are contradictory; one submitted it to be determined by the jury whether these matters occurred, and the other that they had been communicated to defendant and he believed them. Upon another trial the charge with reference to threats should be given correctly. If these threats had been communicated to defendant and he believed them, he was entitled to be acquitted from that standpoint, provided, of course, the deceased made some act, but this should be viewed from the standpoint of the defendant, that he believed such things and not that the jury believed them. It was a serious question in the case, and one that involved defendant's liberty before the jury. The charge of the court is incorrect and that requested by appellant is correct, and the two charges stood before the jury in this contradictory position. They may have believed that defendant's testimony was false, or they may have discarded it; they may have believed the threats were not made, when in fact the defendant did believe it. The law of self-defense depends upon his belief and not the belief of the jury. As was said by Judge Harper on the former appeal of this case, 170 S.W. Rep., 146: "The defendant testified to threats being communicated to him; two witnesses testified they had communicated the threats to defendant. The State did not concede that the threats had been made, but seriously contested that issue, and yet the court in his charge required the jury to find that the threats had been made, instructing them: `Now if you shall find that the deceased had made threats against the life of defendant, and that such threats had been communicated to the defendant,' etc. This is not the law where there is an issue in the case as to whether or not the threats had been made, but if defendant had been told that threats had been made by deceased and he so believed, he would have the right to act, even though the threats had not in fact been made. Buckner v. State, 55 Tex.Crim. Rep., 117 S.W. Rep., 802, and cases there cited." Now we have an erroneous charge given by the court and a special requested instruction by the defendant which was practically correct. The two charges are in direct conflict. The question may be asked, by which charge was the jury governed? Inasmuch as he was convicted, we are led to the conclusion they were controlled by the court's main charge and not the special instruction given. If they believed threats were not made or communicated, then appellant's theory of the case had vanished. They may have believed that, and the verdict of the jury indicates they did believe it.
There are bills of exception reserved to the introduction of testimony. These are to the effect that the State was permitted to introduce testimony that deceased at the time of the meeting between himself and appellant was en route to attend a lodge meeting in the town of Aberdeen. There is nothing to show that defendant knew the deceased was going to Aberdeen to attend a lodge, and the evidence shows it was an accidental meeting, the appellant going one way and the deceased coming *Page 656 in the direction that caused them to meet. If appellant had traveled the road that he was traveling, knowing the deceased was coming that way and was going to the lodge, this testimony might have been admissible. The undisclosed motives or purposes of deceased could not affect the appellant's right of self-defense, at least unless it was shown that he anticipated or believed or knew that he would meet the deceased or come in contact with him. See Bozanno v. State, 60 Tex.Crim. Rep.. In that case Judge Ramsey uses this language: "The first is that the court erred in permitting the witness Mrs. Albert Dunlap, over the objection of defendant, to testify as to the movements and actions of the deceased, Denny Harris, on the day of the homicide and prior thereto, because said actions and movements were not in the presence of appellant and there was no testimony showing that he had any knowledge of said actions and movements of Denny Harris, and appellant could not he charged with the knowledge of such movements and the causes thereof. This witness testified in substance that deceased left her house about 11:30 o'clock the morning he was killed; that he came by where she was stopping with her daughter; that he had a lead horse; that he stated he was going out to George Foreman's to take the horse there, and that he was going to the next house to get a saddle. This, it appears from the statement of facts, was objected to for the reason that appellant was not present and the movements of Harris on that day can not be charged to him and is no evidence against him. The testimony was explanatory of the presence of the deceased at the place where he was killed, which was quite a distance from the place where his mother saw him, and was a mere matter of inducement. The cases in which the actions, declarations and intentions of a decedent are held not to be admissible against a defendant who has no notice of them, has always been limited to cases where the issue of self-defense arose in the case, and where such acts and movements of the deceased could be held to be hostile in their character, and where such defendant had a right to act upon an apparent hostile movement towards him which might, if the rule permitted it, be shown to be in fact innocent." Following that rule and its application, we are of opinion that the testimony of the fact that deceased, on the particular occasion, had left his home and was going to Aberdeen to attend a lodge meeting, where there is no evidence to show defendant knew of it and that the meeting was accidental, would be inadmissible. It was crucial testimony in the case as shown by the opinion in the Singleton case,74 Tex. Crim. 71, 167 S.W. Rep., 46, and quite a number of other cases. If appellant knew, or had reason to believe, that he would meet the deceased, and that he was going to the lodge, and he traveled this road for the purpose of meeting him, or knowing that he would meet him, under the facts of this case the animosity and threats which had been communicated to him, it would be admissible against him, and would be damaging testimony, for the defendant in this case testified he could have gone another or other road home. So without making some showing that appellant understood or believed he would meet the deceased, *Page 657 this testimony was inadmissible, and it was on a very crucial point in his case, affecting his right of self-defense. This testimony ought not to have been admitted. The court in his explanation says he admitted it on the theory of res gestae. The doctrine of res gestae does not apply.
For the reasons indicated I think the judgment ought to be reversed and the cause remanded. The above was written, but my associates did not agree with me, wherefore they wrote the affirming opinion.
ON REHEARING. May 19, 1915.