51 S.W. 907 | Tex. Crim. App. | 1899
After instructing the jury in regard to the appearance of danger and the law of retreat, the court gave this charge: "If, from the evidence, you believe the defendant killed the said Walter Lewis, but further believe that at the time of so doing the deceased had made an attack on him, which from the manner and character of it, and the relative strength of the parties, and the defendant's *651 knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him. And if deceased was armed at the time he was killed, and was making such an attack on defendant, and if the weapon used by him and the manner of its use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon defendant." The testimony tended to show that deceased and defendant, a short time previous to the homicide, had had a personal difficulty in the rear end of a saloon, that deceased had left the premises, with the threat to "fix" himself and return. District after deceased left, defendant also disappeared. In a short time deceased returned, entered the saloon, and was rather boisterous, inquiring for defendant, and cursing the "Stewarts." He was ordered by the proprietor to leave, and as he stepped out of the door was fired upon and killed by defendant. When he entered the saloon, his right hand was under his coat, about his hip pocket. The hand was in the same position at the time the pistol fired. After the occurrence a rock was found under the body. He seems to have had no pistol. In view of this state of the case, we believe the objection of appellant to the charge above quoted is meritorious. This charge submits the case upon the theory that the deceased had made an attack on defendant. Under the facts this assumption is unwarranted, and it turned the issue of self-defense not upon apparent danger, but upon the fact that deceased had then made an attack. Defendant based his right upon the theory, under this evidence, that deceased had armed himself, and returned to the scene of the homicide for the purpose of bringing on a deadly conflict, and was then seeking him for that purpose, and to this end was then approaching him. Defendant was standing outside the building on the sidewalk. This identical question was thoroughly discussed in Phipps v. State, 34 Texas Criminal Reports, 560, and this same charge held erroneous. For the reasons given in the Phipps Case, we hold this charge erroneous. The judgment is reversed, and the cause remanded.
Reversed and remanded.