BROOKS, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at five years confinement in the penitentiary.
This is the second appeal of this case. See 48 Texas Crim. Rep., 217, 87 S. W. Rep., 352, for former opinion.
1. The seventh assignment of error in motion for a new trial complains the court erred in not applying the law of self-defense on account of real and apparent danger to the facts of this case. The court, it is true, submitted to the jury' the abstract propositions of law as found in article 675 and subdivisions 1 and 2 thereof of the Penal Code, but went no further; it was the duty of the court not only to give to the jury the abstract definition of the law applicable to the case, but to go further and apply that law to the facts in. the case, and a failure to do so was error. The court charged imperfectly on threats, and then charged imperfectly the abstract proposition of law laid down in article 675 and subdivisions 1 and 2 thereof, but went no further. The above is a copy of appellant’s contention, and under which appellant insists that appellant in his own behalf testified that he met deceased in the road; that deceased was on his wagon and he, appellant, was walking, driving his horses, which were loose, and met the deceased in the road. That his horses went on meeting deceased in the road, and they walked right up close to deceased’s horses, when the deceased spoke to appellant and said, “Get out of the road, you son-of-a-bitch, or I will fill you full.” At the time that he, deceased, said this, that he, deceased, threw his hand down to his side, holding his lines in his left hand, whereupon appellant fired two shots, which killed the deceased. Appellant further testified that he had not seen Anderson’s pistol at the time, but knew he carried a pistol, and^ had seen his pistol on several occasions, and that he thought he was reaching to get his pistol when he, appellant, shot. The court properly charged the statute defining manslaughter, and then followed said statutes with the following charge: “A reasonable apprehension or fear of death or great bodily harm will excuse a party using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is, in no event, bound to retreat in order to avoid the necessity of killing his assailant.
“In justifying homicide in the defense of one’s person the killing must take place under the following circumstances, to wit:
“(1) It must reasonably appear from the acts of the person deceased, that the purpose and- intention of such person was to commit murder or to inflict serious bodily injury.
“(2) The killing must.take place while the person killed was in the act of committing murder or inflicting serious bodily injury.
“The attack or threatened attack upon the person of an individual, in order to justify homicide, must be such as to produce a reasonable expectation, or a fear of death or some serious bodily injury, but in deciding each of the above issues, you must view the matter'from the standpoint of the defendant as it reasonably appeared to him at the time, and the defendant would be as fully justified in acting upon a
reasonable appearance of danger, as he would, were the danger in fact real.”
Then follows the following charge: “If you believe from the evidence in this case that prior to the homicide the said A. H. Anderson had made threats to take the life of the defendant, N. S. Lundy, such threats of themselves, if any, would afford no justification for killing the said Anderson, unless you believe from the evidence that at the time of the killing the said Anderson did or was in the act of doing some act or was making some demonstration manifesting an intention then and there to execute or to carry out such threats, if any, and to kill the defendant or to do him some serious bodily injury, .or which was reasonably calculated in view of all the evidence and circumstances of the case, considered from the defendant’s standpoint, and that alone, to produce and did produce in the mind of the defendant the belief that the deceased was about to execute such threats, and created in the mind of the defendant a reasonable expectation or fear of death or some serious bodily injury, and that in that event the defendant would have the right to act upon such reasonable appearance of danger, if any, notwithstanding such danger might not have been real, and the killing under such circumstances would be justifiable, and if you so find you will acquit the defendant and say by your verdict ‘not guilty.’”
This is all of the charge of the court on the doctrine of threats and self-defense. Taken as a whole, while not technically correct, the omission in same is not of sufficient importance to require a reversal of this case. Appellant’s insistence that the court did not apply the law to the facts, we think, is error. He further insists that portion of the charge above quoted, which reads as follows: “It must reasonably appear from the acts of the person deceased that the purpose and intention of such person was to commit murder, or to inflict serious bodily injury,” is erroneous, because the subdivision of the statute, in reference to the matter, reads as follows: “It must reasonably appear by acts or by words, coupled with the acts of the person killed, that it was the purpose and intent of such person to commit the crime of murder.” Appellant does not quote the charge accurately. The charge says that “if the jury believe from the evidence that at the time of the killing the said Anderson did or was in the act of doing some act or was making some demonstration manifesting an intention then and there to execute or to carry out such threats, if any, and to kill the defendant or to do him some serious bodily injury, or which was reasonably calculated in view of all the evidence and circumstances of the case, considered from the defendant’s standpoint, and that alone, to produce and did produce in the mind of the defendant, the belief that the deceased was about to execute such threats,” etc. In other words, the charge is much fuller than appellant insists. We do not controvert the authorities that appellant cites. Appellant had the right to defend-as much against words as he has
against acts. We take it that the court has given him the benefit of both phases of apparent danger.
2.
Appellant further complains the court erred in permitting W. S. Swan, Mrs. Tanner, wife of deceased, deceased’s wife having married after the killing, and other witnesses to testify that a clump of chaparral bushes grew on the north side of the road near the scene of the killing, as shown on the map offered in evidence; that said bushes were thickly grown, with an opening on the south side of the bushes, fronting the road sufficiently large to conceal a man. The State offered this testimony to show an opportunity and ability on the part of appellant to lie in wait to kill deceased, which seems to have been one of the theories of the State.
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BROOKS, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at five years confinement in the penitentiary.
This is the second appeal of this case. See 48 Texas Crim. Rep., 217, 87 S. W. Rep., 352, for former opinion.
1. The seventh assignment of error in motion for a new trial complains the court erred in not applying the law of self-defense on account of real and apparent danger to the facts of this case. The court, it is true, submitted to the jury' the abstract propositions of law as found in article 675 and subdivisions 1 and 2 thereof of the Penal Code, but went no further; it was the duty of the court not only to give to the jury the abstract definition of the law applicable to the case, but to go further and apply that law to the facts in. the case, and a failure to do so was error. The court charged imperfectly on threats, and then charged imperfectly the abstract proposition of law laid down in article 675 and subdivisions 1 and 2 thereof, but went no further. The above is a copy of appellant’s contention, and under which appellant insists that appellant in his own behalf testified that he met deceased in the road; that deceased was on his wagon and he, appellant, was walking, driving his horses, which were loose, and met the deceased in the road. That his horses went on meeting deceased in the road, and they walked right up close to deceased’s horses, when the deceased spoke to appellant and said, “Get out of the road, you son-of-a-bitch, or I will fill you full.” At the time that he, deceased, said this, that he, deceased, threw his hand down to his side, holding his lines in his left hand, whereupon appellant fired two shots, which killed the deceased. Appellant further testified that he had not seen Anderson’s pistol at the time, but knew he carried a pistol, and^ had seen his pistol on several occasions, and that he thought he was reaching to get his pistol when he, appellant, shot. The court properly charged the statute defining manslaughter, and then followed said statutes with the following charge: “A reasonable apprehension or fear of death or great bodily harm will excuse a party using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is, in no event, bound to retreat in order to avoid the necessity of killing his assailant.
“In justifying homicide in the defense of one’s person the killing must take place under the following circumstances, to wit:
“(1) It must reasonably appear from the acts of the person deceased, that the purpose and- intention of such person was to commit murder or to inflict serious bodily injury.
“(2) The killing must.take place while the person killed was in the act of committing murder or inflicting serious bodily injury.
“The attack or threatened attack upon the person of an individual, in order to justify homicide, must be such as to produce a reasonable expectation, or a fear of death or some serious bodily injury, but in deciding each of the above issues, you must view the matter'from the standpoint of the defendant as it reasonably appeared to him at the time, and the defendant would be as fully justified in acting upon a
reasonable appearance of danger, as he would, were the danger in fact real.”
Then follows the following charge: “If you believe from the evidence in this case that prior to the homicide the said A. H. Anderson had made threats to take the life of the defendant, N. S. Lundy, such threats of themselves, if any, would afford no justification for killing the said Anderson, unless you believe from the evidence that at the time of the killing the said Anderson did or was in the act of doing some act or was making some demonstration manifesting an intention then and there to execute or to carry out such threats, if any, and to kill the defendant or to do him some serious bodily injury, .or which was reasonably calculated in view of all the evidence and circumstances of the case, considered from the defendant’s standpoint, and that alone, to produce and did produce in the mind of the defendant the belief that the deceased was about to execute such threats, and created in the mind of the defendant a reasonable expectation or fear of death or some serious bodily injury, and that in that event the defendant would have the right to act upon such reasonable appearance of danger, if any, notwithstanding such danger might not have been real, and the killing under such circumstances would be justifiable, and if you so find you will acquit the defendant and say by your verdict ‘not guilty.’”
This is all of the charge of the court on the doctrine of threats and self-defense. Taken as a whole, while not technically correct, the omission in same is not of sufficient importance to require a reversal of this case. Appellant’s insistence that the court did not apply the law to the facts, we think, is error. He further insists that portion of the charge above quoted, which reads as follows: “It must reasonably appear from the acts of the person deceased that the purpose and intention of such person was to commit murder, or to inflict serious bodily injury,” is erroneous, because the subdivision of the statute, in reference to the matter, reads as follows: “It must reasonably appear by acts or by words, coupled with the acts of the person killed, that it was the purpose and intent of such person to commit the crime of murder.” Appellant does not quote the charge accurately. The charge says that “if the jury believe from the evidence that at the time of the killing the said Anderson did or was in the act of doing some act or was making some demonstration manifesting an intention then and there to execute or to carry out such threats, if any, and to kill the defendant or to do him some serious bodily injury, or which was reasonably calculated in view of all the evidence and circumstances of the case, considered from the defendant’s standpoint, and that alone, to produce and did produce in the mind of the defendant, the belief that the deceased was about to execute such threats,” etc. In other words, the charge is much fuller than appellant insists. We do not controvert the authorities that appellant cites. Appellant had the right to defend-as much against words as he has
against acts. We take it that the court has given him the benefit of both phases of apparent danger.
2.
Appellant further complains the court erred in permitting W. S. Swan, Mrs. Tanner, wife of deceased, deceased’s wife having married after the killing, and other witnesses to testify that a clump of chaparral bushes grew on the north side of the road near the scene of the killing, as shown on the map offered in evidence; that said bushes were thickly grown, with an opening on the south side of the bushes, fronting the road sufficiently large to conceal a man. The State offered this testimony to show an opportunity and ability on the part of appellant to lie in wait to kill deceased, which seems to have been one of the theories of the State. The mere fact that no one was at the scene of the killing but appellant and deceased, would not preclude the portrayal, before the jury, of the physical surroundings that might be silent witnesses pro or con throwing light upon the transaction.
3. Appellant further objects to the proof of the weight, height, age and eyesight of appellant and deceased. We do not think that this evidence would be admissible in most homicide cases. The question of size and weight, where the homicide occurred with a pistol, very seldom throws any light on the transaction, but we are not able to tell from this record that it did not throw some weight and some shades and shadows upon the testimony of the parties. The proof in the case was that appellant was a very large man, young and robust, and deceased was a man about 65 years old, a small man, and blind in one eye. The parties meeting in the road under such circumstances, the jury had a right to know something about their relative physical conditions at the time. It is true appellant could defend against a man with a pistol who was one-eyed as well as he could against a young man with two eyes. The evidence here, we take, is germane to indicate the animus, purpose and motive of appellant, or if not, it would not be of sufficient moment to justify us in reversing the case.
We have reviewed all of appellant’s assignment of error, and must say that the evidence amply warrants the verdict, and we do not believe there was any error calculated to injure the rights of appellant committed by the court in the trial of this case.
Affirmed.
ON REHEARING.
April 19, 1910.