Offense, murder; penalty, fifty years in the penitentiary.
Deceased was the father-in-law of appellant. Appellant was thirty-three years old and the deceased seventy-eight at the time of the tragedy. The two quarreled over a dog light. Deceased had come to the home of appellant the day of the tragedy carrying an “eye hoe,” which was shown to weigh some six or eight pounds with a hаndle about four feet long. Upon his arrival he demanded that two bulldogs that had been fighting be separated. A q.uarrel ensued. Appellant told deceased to go home, and the substance of his reply was “to make me.” Appellant went into his house, deceased following as far as the porch. Appellant reappeared' with a shotgun. He сlaims that the deceased was about to strike him' with the hoe and he shot in self-defense.
Thе state made an issue of and introduced evidence to show the disparity in strength betweеn- appellant and deceased. The court in paragraph 12, distinct from other parts of his charge, instructed the jury: “You are instructed that in arriving at your verdict you may consider the relative disproportion in strength of the deceased and ’the defendant, if any, as bearing upon the defendants acts and conduct at the time of the killing.”
Appellant еxcepted to this. Where self-defense is an issue and as a part of the instruction cаlling the jury’s attention to the fact that the situation must be judged from the standpoint of defendant, rеferences are properly made to the relative size and strength of the parties, where, under particular circumstances, the issue is made that the accused wаs being attacked by a stronger man. So far as we are aware, there is no authority or warrant in law for' singling out damaging testimony against the defendant and directing its consideration by the jury. Such practice has been condemned in a multitude of cases. See Vernon’s Tex. C. C. P. art. 658, notes 127 and 128, for collation of authorities; Brown v. State,
The argument is made that the court’s failure to charge article 1223, P. C., on presumption from the use of a deadly weapon by deceased, was error. What is now articlе 1223 of the Penal Code has long been a part of _ our statutory law, and, where the evidence presents the issue, it has been uniformly held throughout the history of this court that such articlе must be given in charge to the jury. For full collation of authorities, see notes in Vernon’s Tex. P. O. art. 1223. For later eases see Forrester v. State,
Appellant filrther complains because the court failed to charge on provoking the difficulty by deceased Tbe appellant and not the deceased was on trial. Such a charge may be given only as to the accused on trial.
Because of the errors discussed, the judgment is reversed, and cause remanded.
PER CURIAM.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.