In prescribing the rules essential to be observed in the exercise of the right of self-defence by a person attacked, or by some other person in his behalf, our Penal Code provides as follows : —
“Art. 569. Homicide is permitted in the necessary de
“Art. 570. Homicide is permitted by law when inflicted for the purpose of preventing the offence of murder, rapе, robbery, maiming, disfiguring, castration, arson, burglary, theft at night, * * * whether the homicide be com-
mitted by the party about to be injured, or by some person in his behalf, when the killing takes place under the following circumstances: —
“ 1. It must reasonably appear by the acts, or by words coupled with the acts, of the person killed, that it was the purpose and intent of such person to commit one of the offences above named.
“ 2. The killing must take place while the person killed was in the act of committing the offence, or after some act done by him showing evidently an intent to commit such offence.
“ 3. It must take place before the offence committed by the party killed is actually completed. * * *
“4. Where the killing takes place to prevent the murder of some other person, it shall not be deemed that the murder is complete so long as the offender is still inflicting violence, though the mortal wound may have been given.
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“6. In cases of maiming, disfiguring, or castration, the homicide may take place at any time while the offender is mistreating with violence the person injured, though he may have completed the offence.
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“Art. 571. When the homicide takes place to prevent murder, maiming, disfiguring, or castration, if the weapons or means used by the party attеmpting or committing such murder, maiming, disfiguring, or castration 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.
“Art. 573. The party whose person or property is so unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant. •
“Art. 574. The attack upon the person of an individual, iñ ordei’ to justify homicide, must be such as produces a reasonable expectation or fear of death, or some serious bodily injury.”
These statutory principles, in connection with other provisions in the Code of Criminal Procedure relating to self-protection, or the protection of another from unlawful acts or violence (arts. 80, 86), and which provisions need not be specifically set out in this opinion, furnish the law of self-defence, or defence of another, in this State; and by these principles, as explained by the adjudged cases, the validity of this conviction must be tested.
The law separates unlawful violence to the person or unlawful attacks upon the person. into two distinct classes, and the right of resistance, to the extent of taking life, must be exercised under essentially different conditions according to the nature and severity of the attack. If it reasonably appears by the acts of the assailant, or by his words coupled with his acts, that it is his purpose or intent to murder, ravish, rob, maim, disfigure, or castrate the assaulted party, then the latter, or some other person in his or her behalf, may slay the aggressor while he is in the act of com
Another feature pertaining to the classification under immediate discussion is, that when a person is attacked under such circumstances as reasonably indicate a purpose and intent on the part of the attacking party to murder or maim him, or to do him serious injury, the person so attacked is not called upon to retreat; nor is he, or any person who interferes for him, compelled to resort to any other means for the prevention of the injury, but may slay upon the spot, being responsible fоr any mistake if the right of resistance
A rule quite different obtains if the attack does not reasonably indicate a purpose to murder or maim the injured party. If the attack is an ordinary assault and battery, or with a weapon not likely to produce death, or is used in a manner not calculated to produce that'result, or the attack is upon property, and not endangering the life or limb of its possessor,—in these and like cases it is required of the person assailed, or the possessor of the property, or the person who may interfere for the protection of either, that all other means to avoid the threatened injury must first be resorted to, except retreat, before a right to slay enures; imd the right does not obtain at all in behalf of the person who interferes for the protection of property, unless the life or person of the injured party is in peril by reason of such attack upon his property. This fеature of the law, unlike the fotmer classification, presupposes there may be time and opportunity to resort to other means for the prevention of the threatened injury. By it is not meant that all other possible means to avert the injury must be first resorted to., but only that all other means reasonably proper and effective should be first invoked before resorting to a right which, under the most favorable aspect of any case, must be deemed lamentable in its exercise. These distinctions are not new in our State. Horbach v. The State, 43 Texas,
In the practical administration of justice in this class of cases, it is essential that these different principles, as appertaining to different features of the law of justifiable homicide, be not only kept in view by the courts, but care must always be exercised in preventing the jury from confounding principles applicable to justifiable homicide in defence of the person in cases of serious attack, with other principles which are applicable only in attacks of a milder character, or the reverse. The law makes different provisions for the exercise of the right of self-defence or the protection of another, according to the gravity, actual or apparent, of the аttack; and the character of the attack must.usually be determined by the judge in the first instance, before he delivers his charge to the jury. If the attack of the person slain was manifestly with intent to murder or maim, —that is, made with weapons or other means calculated to produce either of those results, — then there is no occasion to instruct a jury as to the law which- obtains in case the attack was of a milder character, because such law is not applicable to the case, and can subserve no purpose other than to confuse the jury. "On the other hand, if the attack clearly comes within the meaning of “ any other unlawful and violent attack ” than with intent to murder, or .maim, or seriously injure, then the law governing the graver attacks should be altogether discarded as inapplicable. It can seldom happen in any case that such a determination by the judge can be attended with serious embarrassment, because it is only required to contemplate the weapons or means used by the assailant in the first instance, and if they are such' as would have been calculated to produce death, or mayhem, then the law fixes the character of the assault. Penal Code, art. 571. But if, upon the trial of any case, the pеculiar state of the evidence renders it necessary, in the opinion of the judge, to submit to the jury the law governing the right of
These principles are of easy application to the case under consideration. Regarding the evidence as to the actual homicide in its most unfavorable light for the appellant, it appears that his friend Brooks, who was his office-mate, and was then acting as the State’s prosecuting officer in the county of San Saba, had had one or more difficulties with the deceased, which presumably arose from the discharge of some official duties by Brooks in some way distasteful to the deceased. These difficulties, which occurred during the absence of appellant, seem to have engendered bad blood and threatening acts on the part of deceased and others towards Brooks, inducing the latter to arm himself with appellant’s gun, and to keep the same near at hand ready for immediate use.
On the day of the homicide, a prosecution against some person for a violation of the “ local-option law” was being-conducted in the court-house, Brooks and appellant being counsel for the State, which trial was of considerable public interest, it being contended on the part of those opposed to the enforcement of the law that it had not been legally adopted. The deceasеd, who kept a saloon, came within the latter category, was present during the trial and evidently warmly interested in the result. While the jury were out deliberating, bottles of lager-beer were conveyed into the court-room, apparently through the instrumentality or direction of the deceased, and the crowd was asked to drink. Being expostulated with by friends, including appellant, he desisted from his course, left the court-room with friends for the purpose of drinking, and subsequently returned. He was asked by the deputy-sheriff and another to leave the court-room, but refused. He returned into the
. Without intimating any opinion as to the weight of this particular portion of the evidence detailed, or any other portion, it may be said that if Brown was making" any attack whatsoever upon Brooks at the time he was shot, which was a legitimate subject of inquiry and determination by the jury, then no question can arise as to the nature of that attack. Taking into consideration the weapon used, the mаnner of its use, and the circumstances immediately attendant upon the transaction, the mind can reach but one conclusion after it once determines that such attack was made, and that is, that it was such an attack as reasonably demonstrated a purpose and intent on the part of Brown to' murder or maim Brooks. No fact or circumstance appears which could justify a conclusion, after it is once determined that an attack was made or about to be made, that such attack was of a milder character and made with a purpose to inflict a less degree of injury than to murder or maim.
■ Under these circumstances, an instruction as to the law governing the exercise of the right of self-defence against an unlawful and violent attack other than with purpose to murder or-maim was not appropriate or called for by the evidence; and the tendency of such an instruction could only be hurtful to the prisoner upon trial, by clouding the true and substantial issue, and thus confusing the jury in their application of the law given them in charge to the facts found to be true. The court, in its charge, should have entirely ignored the provisions of art. 572 of the Penal Code,
■ It may often happen that instructions not pertinent to the issues involved may be interwoven with the law applicable to the case without constituting material error, it being patent upon appeal that the inapplicable principles given to the jury could not have misguided them in reaching their conclusion. In such a case the error is deemed harmless. But it may sometimes oсcur that the shades of distinction between the principles of law applicable and inapplicable are of so delicate a character, and leading in such different directions, that without the exercise of extraordinary caution by the court, in framing its charge, the jury are much more liable to mistake the principles really applicable to the case than to make a proper selection. In such a case it cannot be said that the court has ‘ distinctly set forth the law applicable to the case,” or that the redundancy of the charge has proven harmless. The distinction between the character of the two classes of attack upon the person which justify resistance and interference, under our law, has hitherto not been clearly grasped by the profession, whо have made the law their life study ; and when,these principles are laid before an average jury, side by side upon a page or two of a written charge, and couched in the general language of the statute, it is not difficult to imagine a confusion in their minds calculated to lead in most instances to an inevitable mistake.
But a more serious defect in the charge lies in the fact that, although it is otherwise able, accurate, and comprehensive, except as hereinbefore pointed out, it wholly ignores the provisions of art. 571 of the Penal Code, and altogether fails to instruct the jury as to the legal presumption which obtains in cases of this character, when certain facts are established to the satisfaction of the jury. The provisions of this article were directly applicable to certain phаses of the evidence, and of paramount importance to the rights of the
For error in the charge of the court as herein indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.