MORROW, Presiding Judge.
Appellant was charged with murder and convicted of manslaughter; punishment fixed at confinement in the penitentiary for five years.
He shot and killed Harriet Jenkins. The deceased was a woman of negro blood, but apparently white. She was the paramour of the appellant. The two were riding in an automobile at night-time.
This is appellant’s version of the homicide. She was driving the car and stopped it at about six miles out. Appellant got out to crank
it. She told him that she wanted $200 and used abusive language to him. He had more than that amount of money on his person but declined to give it to her, stating that he needed it to use in connection with his business. He had been unable to crank the car and was standing near it, talking to her. She shot him in the neck. He said: “I grabbed her and took the pistol away from her. I shot once, two or three or four times, I don’t know what, I cannot tell of it exactly, I don’t know, and after a while I fell down, I don’t know how long I stayed there. I might have stayed there for two or three hours, I don’t know what. I could not see where I was going. * * * I was standing with my elbow on the rear fender. She was in front, sitting on the fender; I did not know anything was going to happen. I did not know she was going to shoot me. The shot caused me pain and suffering. I thought it would kill me. I fell on her, I grabbed her, I took the gun; I could not swear what I done. After I was shot I was afraid. ’ ’
It was shown that appellant was found in the road in a dazed condition, badly shot; that through the aid of others, he finally reached a sanitarium and was treated for the wound. The doctor said: “He was shot in the neck. The bullet entered here — that it entered about midline of the body under the chin and went diagonally across the mouth, and passed in behind the eye, and came out on his right forehead, shattering part of the skull. He had an opening in the top of the mouth, and the wound necessitated the taking out of his eye. There was no signs of any powder burns. * * * The effect of the wound was an injury to the front part of the brain. He was bloody. A wound of that kind causes bloodshed, pain and suffering. I took the bullet out of him. It was lodged under the skin, and it cut under the bone. When I operated on him I took the bullet out, and some shattered bone. It was a lead bullet of 38 caliber.”
A number of witnesses testified in substance that it would have been impossible for the wound to have been self-inflicted without leaving powder stains upon the skin, and that there were none found.
The body of the deceased and the car in which she and appellant had been riding were found. The only explanation of the incident is that given by the appellant.
The court, in addition to the charge on murder and manslaughter, instructed upon the law of self-defense. The charge on self-defense was in these words: “A reasonable apprehension of death or great-bodily harm will excuse a party in 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.
If from the evidence you believe the defendant killed the said Harriet Jenkins but further believe that at the time of so doing the deceased had shot him and caused him to have a reasonable expectation or fear of death or serious bodily injury and that anting under such reasonable expectation or fear, the defendant shot and killed the deceased, then you should acquit him.
If you believe from the evidence that the said Harriet Jenkins shot the defendant and that he seized the pistol used by her and shot and killed her then you will acquit the defendant. ’ ’
This charge is complained of because, in effect, it required the jury to believe appellant’s defensive theory as a predicate for acquittal, whereas he was entitled to an acquittal if there existed in the minds of the jury a reasonable doubt as to whether his defensive theory was true. This complaint is met by the State with the proposition that the court, at the close of the charge, having instructed upon the law of reasonable doubt in the language of the statute, no error was committed in failing to give such an instruction in connection with the charge presenting appellant’s affirmative theory of self-defense.
Upon this subject, it seems to the writer that the authorities are not harmonious. Powell’s case (28 Texas Crim. App., 398), apparently supports the State’s theory, while Johnson’s ease (29 Texas Crim. App., 150), apparently supports the position of the appellant. These two cases were written by the same judge, and it may be that in the respective records there were facts differentiating them,-which in the report of the cases are not revealed. Among the cases in line with Johnson’s case, supra, are Bennett v. State, 30 Texas Crim. App., 341; Rutherford v. State, 44 Texas Crim. Rep., 432; Bird v. State, 49 Texas Crim. Rep., 96; Moody v. State, 52 Texas Crim. Rep., 232; Henderson v. State, 51 Texas Crim. Rep., 194; Stewart v. State, 51 Texas Crim. Rep., 232; Harris v. State, 55 Texas Crim. Rep., 479; Maloney v. State, 57 Texas Crim. Rep., 435, 125 S. W. Rep., 36; Castro v. State, 66 Texas Crim. Rep., 282, 146 S. W. Rep., 553; Vernon’s Texas Crim. Statutes, Vol. 2, p. 683; subdivision 18.
Mr. Branch, in annotating the Penal Code, states the rule, as deduced from numerous decisions, in these words: “A charge is error which requires the jury to ‘find’ or ‘believe’ the defensive theory before they can acquit, if reasonable doubt is not also charged in immediate connection with the same paragraph.” Branch’s Ann. Tex. Penal Code, sec. 11, p. 5; Smith v. State, 45 Texas Crim. Rep., 251; Bennett v. State, 30 Texas Crim. App., 341.
Upon this question, this court, through Judge Willson, said: ‘‘We think the paragraph is subject to the exception that it requires the jury to ‘believe from the evidence’ the existence of the conditions which entitled him to acquittal. It' virtually requires the jury to believe from the evidence that he is innocent before finding him not guilty, whereas the correct rule is that the jury must presume his
innocence until his guilt has been established by the evidence beyond a reasonable doubt. If the jury entertained a reasonable doubt upon the whole evidence of the defendant’s guilt, it was their duty to acquit him, although they might not believe from the evidence the existence of the facts and conditions, or any of them, mentioned in said paragraph. It is true that in concluding his charge the learned judge gave the usual instruction as to the presumption of innocence and as to reasonable doubt, and ordinarily such instruction is sufficient, but in this case we do not think it was sufficient to correct and counteract the error in paragraph five.” (Johnson v. State, 29 Texas Crim. App., 150.)
In the instant case, it is the State’s burden to show that the homicide was committed by the appellant and that it was unlawful.
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MORROW, Presiding Judge.
Appellant was charged with murder and convicted of manslaughter; punishment fixed at confinement in the penitentiary for five years.
He shot and killed Harriet Jenkins. The deceased was a woman of negro blood, but apparently white. She was the paramour of the appellant. The two were riding in an automobile at night-time.
This is appellant’s version of the homicide. She was driving the car and stopped it at about six miles out. Appellant got out to crank
it. She told him that she wanted $200 and used abusive language to him. He had more than that amount of money on his person but declined to give it to her, stating that he needed it to use in connection with his business. He had been unable to crank the car and was standing near it, talking to her. She shot him in the neck. He said: “I grabbed her and took the pistol away from her. I shot once, two or three or four times, I don’t know what, I cannot tell of it exactly, I don’t know, and after a while I fell down, I don’t know how long I stayed there. I might have stayed there for two or three hours, I don’t know what. I could not see where I was going. * * * I was standing with my elbow on the rear fender. She was in front, sitting on the fender; I did not know anything was going to happen. I did not know she was going to shoot me. The shot caused me pain and suffering. I thought it would kill me. I fell on her, I grabbed her, I took the gun; I could not swear what I done. After I was shot I was afraid. ’ ’
It was shown that appellant was found in the road in a dazed condition, badly shot; that through the aid of others, he finally reached a sanitarium and was treated for the wound. The doctor said: “He was shot in the neck. The bullet entered here — that it entered about midline of the body under the chin and went diagonally across the mouth, and passed in behind the eye, and came out on his right forehead, shattering part of the skull. He had an opening in the top of the mouth, and the wound necessitated the taking out of his eye. There was no signs of any powder burns. * * * The effect of the wound was an injury to the front part of the brain. He was bloody. A wound of that kind causes bloodshed, pain and suffering. I took the bullet out of him. It was lodged under the skin, and it cut under the bone. When I operated on him I took the bullet out, and some shattered bone. It was a lead bullet of 38 caliber.”
A number of witnesses testified in substance that it would have been impossible for the wound to have been self-inflicted without leaving powder stains upon the skin, and that there were none found.
The body of the deceased and the car in which she and appellant had been riding were found. The only explanation of the incident is that given by the appellant.
The court, in addition to the charge on murder and manslaughter, instructed upon the law of self-defense. The charge on self-defense was in these words: “A reasonable apprehension of death or great-bodily harm will excuse a party in 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.
If from the evidence you believe the defendant killed the said Harriet Jenkins but further believe that at the time of so doing the deceased had shot him and caused him to have a reasonable expectation or fear of death or serious bodily injury and that anting under such reasonable expectation or fear, the defendant shot and killed the deceased, then you should acquit him.
If you believe from the evidence that the said Harriet Jenkins shot the defendant and that he seized the pistol used by her and shot and killed her then you will acquit the defendant. ’ ’
This charge is complained of because, in effect, it required the jury to believe appellant’s defensive theory as a predicate for acquittal, whereas he was entitled to an acquittal if there existed in the minds of the jury a reasonable doubt as to whether his defensive theory was true. This complaint is met by the State with the proposition that the court, at the close of the charge, having instructed upon the law of reasonable doubt in the language of the statute, no error was committed in failing to give such an instruction in connection with the charge presenting appellant’s affirmative theory of self-defense.
Upon this subject, it seems to the writer that the authorities are not harmonious. Powell’s case (28 Texas Crim. App., 398), apparently supports the State’s theory, while Johnson’s ease (29 Texas Crim. App., 150), apparently supports the position of the appellant. These two cases were written by the same judge, and it may be that in the respective records there were facts differentiating them,-which in the report of the cases are not revealed. Among the cases in line with Johnson’s case, supra, are Bennett v. State, 30 Texas Crim. App., 341; Rutherford v. State, 44 Texas Crim. Rep., 432; Bird v. State, 49 Texas Crim. Rep., 96; Moody v. State, 52 Texas Crim. Rep., 232; Henderson v. State, 51 Texas Crim. Rep., 194; Stewart v. State, 51 Texas Crim. Rep., 232; Harris v. State, 55 Texas Crim. Rep., 479; Maloney v. State, 57 Texas Crim. Rep., 435, 125 S. W. Rep., 36; Castro v. State, 66 Texas Crim. Rep., 282, 146 S. W. Rep., 553; Vernon’s Texas Crim. Statutes, Vol. 2, p. 683; subdivision 18.
Mr. Branch, in annotating the Penal Code, states the rule, as deduced from numerous decisions, in these words: “A charge is error which requires the jury to ‘find’ or ‘believe’ the defensive theory before they can acquit, if reasonable doubt is not also charged in immediate connection with the same paragraph.” Branch’s Ann. Tex. Penal Code, sec. 11, p. 5; Smith v. State, 45 Texas Crim. Rep., 251; Bennett v. State, 30 Texas Crim. App., 341.
Upon this question, this court, through Judge Willson, said: ‘‘We think the paragraph is subject to the exception that it requires the jury to ‘believe from the evidence’ the existence of the conditions which entitled him to acquittal. It' virtually requires the jury to believe from the evidence that he is innocent before finding him not guilty, whereas the correct rule is that the jury must presume his
innocence until his guilt has been established by the evidence beyond a reasonable doubt. If the jury entertained a reasonable doubt upon the whole evidence of the defendant’s guilt, it was their duty to acquit him, although they might not believe from the evidence the existence of the facts and conditions, or any of them, mentioned in said paragraph. It is true that in concluding his charge the learned judge gave the usual instruction as to the presumption of innocence and as to reasonable doubt, and ordinarily such instruction is sufficient, but in this case we do not think it was sufficient to correct and counteract the error in paragraph five.” (Johnson v. State, 29 Texas Crim. App., 150.)
In the instant case, it is the State’s burden to show that the homicide was committed by the appellant and that it was unlawful. If the jury had a reasonable doubt as to either, it was their duty to acquit, and this without reference to whether they credited the appellant’s defensive theory or not. The statute on the presumption of innocence and reasonable doubt operates without reference as to whether appellant presents any defensive theory. The statute says: “The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence; and, in case of reasonable doubt as to his guilt, he is entitled to be acquitted. (Code of Crim. Proc., Art. 785.) See also Knight v. State, 64 Texas Crim. Rep., 541; Vernon’s Texas Crim. Statutes, Vol. 2, p. 678, subdivision 11 and cases listed.
The law requiring a charge on the presumption of innocence and reasonable doubt is generally satisfied when the doctrine is applied by a charge referring to the whole case, that is, referring to the general issue of guilty or not guilty. Vernon’s Texas Crim. Statutes, Vol. 2, p. 684, subdivision 19 and cases cited. It has been held that it is not required that it shall be charged in every case with regard to each affirmative independent offense. (McCall v. State, 14 Texas Crim. App., 353; Edwards v. State, 58 Texas Crim. Rep., 342). It is believed, however, that where, as in the instant case, the defensive theóry is an affirmative one, that is, where the connection of the accused with the homicide is conceded and justified by affirmative testimony given by the accused, when the matter is properly presented in the trial court, there should be embodied in the charge submitting his defense the information to the jury that if they believe the affirmative defensive facts or have a reasonable doubt of their truth, an acquittal should result. This, we understand to be the rule applied in Johnson’s case, supra, and followed in many others to which we have adverted. Moreover, we believe it to be a correct and sound rule, when considered in connection with our statutes upon the law of homicide and the statute concerning the presumption of innocence, and we are of the opinion that the failure of the trial judge, in response to ap
pellant’s objection to the charge, to correct it in accord with these views, was error which requires a reversal of the judgment.
The judgment is therefore reversed and the cause remanded.
Reversed and remanded.