JACKSON, J.
Appellee alleges that at the time and before the shooting in which pLaintiffs were injured, he was and had been for a number of months in fear of sustaining death or serious bodily injury from Rex Williams, Jack Clark, Philip Bentley, and Altus Nunley, whose enmity he had incurred and who had threatened his life, and by whom he had been beaten on divers and sundry occasions.
The testimony of appellee and his witnesses tends to show that on the day preceding Labor Day, September 2, 1923, Phil Bentley passed defendant's home with a gun, cursed and abused him, and dared him to come off his premises into the road; that the appellee remonstrated with Bentley, yvho was a boy in his teens, went out into the road, and Bentley struck at him with the gun, appellee warding off the blows with his arms; that appellee took the gun from Bentley and was told by the young man, “I may fail this evening, but I will get you”; that-within a few days thereafter, while working on a' public road, the same Phil Bentley called appellee a - - red headed s- of a b-, and a fight occurred in which Bentley, Williams, and Nunley participated against appellee; that one of them struck Rim with a singletree and inflicted injuries on his jaw which rendered him unable to eat anything but soup for three days; that in May, 1925, Nunley passed through appellee’s premises, which were posted “Closed,” and that appellee and Nunley on that occasion engaged in a wordy difficulty; that in September thereafter, while appellee was on his way home from Shamrock, traveling in his car on the public highway, Altus Nunley, Rex Williams, and another young man passed him, stopped their car on a bridge so that he could not pass; they got out and went back, made an assault on him, and gave him a good beating,
telling him that if he reported the matter to the officers he would be pouring sand on his grave, and that they would get him; that a few days before the shooting, Clark and some other 'of the boys passed through ap-pellee’s inclosure and tore down his fence, a wordy altercation arose, and Clark told him, “I’ll get you yet.” The appellee, not voluntarily but when questioned by officers, reported the difficulty occurring on the public road at the bridge, and complaints appear to have been made against these boys. The appellee had requested the officers to protect him after he had been assaulted at the bridge, but no affirmative action appears to have been taken.
It will be noted that a number of the difficulties with these parties had occurred in front of appellee’s home and on his premises. On the night of the unfortunate tragedy in which plaintiffs were shot, some time after 12 o’clock they drove their automobile along the public highway, running south of appellee’s home about 60 feet, but the lights from a car traveling the road did not usually reach the house; but before reaching the house the lights of the car were turned so as to shine upon the porch where appellee’s wife and daughters were sleeping; that they were using loud and vociferous language such as would have been, from appellee’s testimony, calculated to disturb the peace. They passed on by his residence, turned their car around, and before passing the second time again turned the lights of the car on appellee’s residence. They passed and came back, passing appellee’s house the third time, stopped in the road near the house, and while stopped a man crossed appellee’s premises and joined himself to the crowd in the car which was driven on a short distance and turned and came back again, passing the house; that each time they passed the house the car was slowed down; about the time they reached the residence the fourth time, some one from the car said, “Pour it on the son of a bitch,” or, according to some of the testimony, “There he is; pour- it on the son of a bitch.”
The record is uneontroverted that appellee and the plaintiffs were friends and neighbors; that no ill will or enmity existed between them; and that appellee thought that the parties in the car were the ones who had made the threats against his life, and who had assaulted him theretofore. Appellee was unable to recognize any of the persons in the car, and it was not light enough for him to see what they were doing, except that they were moving along in the automobile.
I concur in the disposition of the case made in the majority opinion, but I cannot assent to the proposition that, under all the facts and circumstances in the ease, appel-lee’s plea of self-defense was not available.
I am.cognizant of the rule that threats shall not be regarded as a justification of a homicide unless it be shown that at the time of the killing the deceased, by some act then done, manifested an intention of executing the threats made. The record discloses without controversy that appellee believed that the plaintiffs were the parties who had attacked him on former occasions, and who had threatened his life. He was therefore entitled to all the defenses he could have offered if the plaintiffs had been Rex Williams, Jack Clark, Phil Bentley, and Altus Nunley. Wilson v. State, 70 Tex. Cr. R. 355, 156 S. W. 1185.
The previous threats having been made to appellee, and attacks of violence having theretofore been made upon him, he was entitled to act more promptly and upon less demonstration of hostility than he would otherwise have been. 30 C. J. page 67.
“In estimating the nature and imminence of the danger, in the choice of means to avoid it, or the amount of force or kind of weapon to be used in repelling it, the excitement and confusion which would naturally result from the surrounding circumstances —for which the rioters alone were responsible — should not be overlooked. To require of the defendant, while under a high degree of mental excitement, induced by their wrongful and criminal conduct, and without his fault, the same circumspection, and cool, deliberate judgment, in estimating the danger or the choice of means for repelling it, as we, who are unaffected by the excitement or the danger, may now exercise in contemplating it, would be to ignore the laws of our being, and to require a degree of perfection to which human nature has not yet attained. Of the weight a jury should give to these considerations, no safer standard can be found than their own individual consciousness, and the consideration of what they, with the honest purpose of avoiding the danger, without 'unnecessarily taking life, might, under the circumstances in which the defendant was placed, be likely to do.” Patten v. People, 18 Mich. 314, 100 Am. Dec. 173.
.It is settled, under our law, that a reasonable apprehension of death or serious bodily injury would justify appellee in using the necessary force to defend himself, and it is not required that the- danger be actual, provided he acts upon a reasonable apprehension of danger, viewed from his standpoint alone, at the time he acts. If appellee was required to wait until an effort was made to take his life or inflict serious injury upon his person, before he acted, he could stand upon that fact without the antecedent threats, and such threats would be of no value or benefit to him for his right of self-defense would be complete without them. Miles v. State, 18 Tex. App. 156.
“It is not practicable to fix on what the act manifesting the intention of the deceased to execute his threats shall be; but it must be some act reasonably calculated £o induce the belief in the mind of the defend
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JACKSON, J.
Appellee alleges that at the time and before the shooting in which pLaintiffs were injured, he was and had been for a number of months in fear of sustaining death or serious bodily injury from Rex Williams, Jack Clark, Philip Bentley, and Altus Nunley, whose enmity he had incurred and who had threatened his life, and by whom he had been beaten on divers and sundry occasions.
The testimony of appellee and his witnesses tends to show that on the day preceding Labor Day, September 2, 1923, Phil Bentley passed defendant's home with a gun, cursed and abused him, and dared him to come off his premises into the road; that the appellee remonstrated with Bentley, yvho was a boy in his teens, went out into the road, and Bentley struck at him with the gun, appellee warding off the blows with his arms; that appellee took the gun from Bentley and was told by the young man, “I may fail this evening, but I will get you”; that-within a few days thereafter, while working on a' public road, the same Phil Bentley called appellee a - - red headed s- of a b-, and a fight occurred in which Bentley, Williams, and Nunley participated against appellee; that one of them struck Rim with a singletree and inflicted injuries on his jaw which rendered him unable to eat anything but soup for three days; that in May, 1925, Nunley passed through appellee’s premises, which were posted “Closed,” and that appellee and Nunley on that occasion engaged in a wordy difficulty; that in September thereafter, while appellee was on his way home from Shamrock, traveling in his car on the public highway, Altus Nunley, Rex Williams, and another young man passed him, stopped their car on a bridge so that he could not pass; they got out and went back, made an assault on him, and gave him a good beating,
telling him that if he reported the matter to the officers he would be pouring sand on his grave, and that they would get him; that a few days before the shooting, Clark and some other 'of the boys passed through ap-pellee’s inclosure and tore down his fence, a wordy altercation arose, and Clark told him, “I’ll get you yet.” The appellee, not voluntarily but when questioned by officers, reported the difficulty occurring on the public road at the bridge, and complaints appear to have been made against these boys. The appellee had requested the officers to protect him after he had been assaulted at the bridge, but no affirmative action appears to have been taken.
It will be noted that a number of the difficulties with these parties had occurred in front of appellee’s home and on his premises. On the night of the unfortunate tragedy in which plaintiffs were shot, some time after 12 o’clock they drove their automobile along the public highway, running south of appellee’s home about 60 feet, but the lights from a car traveling the road did not usually reach the house; but before reaching the house the lights of the car were turned so as to shine upon the porch where appellee’s wife and daughters were sleeping; that they were using loud and vociferous language such as would have been, from appellee’s testimony, calculated to disturb the peace. They passed on by his residence, turned their car around, and before passing the second time again turned the lights of the car on appellee’s residence. They passed and came back, passing appellee’s house the third time, stopped in the road near the house, and while stopped a man crossed appellee’s premises and joined himself to the crowd in the car which was driven on a short distance and turned and came back again, passing the house; that each time they passed the house the car was slowed down; about the time they reached the residence the fourth time, some one from the car said, “Pour it on the son of a bitch,” or, according to some of the testimony, “There he is; pour- it on the son of a bitch.”
The record is uneontroverted that appellee and the plaintiffs were friends and neighbors; that no ill will or enmity existed between them; and that appellee thought that the parties in the car were the ones who had made the threats against his life, and who had assaulted him theretofore. Appellee was unable to recognize any of the persons in the car, and it was not light enough for him to see what they were doing, except that they were moving along in the automobile.
I concur in the disposition of the case made in the majority opinion, but I cannot assent to the proposition that, under all the facts and circumstances in the ease, appel-lee’s plea of self-defense was not available.
I am.cognizant of the rule that threats shall not be regarded as a justification of a homicide unless it be shown that at the time of the killing the deceased, by some act then done, manifested an intention of executing the threats made. The record discloses without controversy that appellee believed that the plaintiffs were the parties who had attacked him on former occasions, and who had threatened his life. He was therefore entitled to all the defenses he could have offered if the plaintiffs had been Rex Williams, Jack Clark, Phil Bentley, and Altus Nunley. Wilson v. State, 70 Tex. Cr. R. 355, 156 S. W. 1185.
The previous threats having been made to appellee, and attacks of violence having theretofore been made upon him, he was entitled to act more promptly and upon less demonstration of hostility than he would otherwise have been. 30 C. J. page 67.
“In estimating the nature and imminence of the danger, in the choice of means to avoid it, or the amount of force or kind of weapon to be used in repelling it, the excitement and confusion which would naturally result from the surrounding circumstances —for which the rioters alone were responsible — should not be overlooked. To require of the defendant, while under a high degree of mental excitement, induced by their wrongful and criminal conduct, and without his fault, the same circumspection, and cool, deliberate judgment, in estimating the danger or the choice of means for repelling it, as we, who are unaffected by the excitement or the danger, may now exercise in contemplating it, would be to ignore the laws of our being, and to require a degree of perfection to which human nature has not yet attained. Of the weight a jury should give to these considerations, no safer standard can be found than their own individual consciousness, and the consideration of what they, with the honest purpose of avoiding the danger, without 'unnecessarily taking life, might, under the circumstances in which the defendant was placed, be likely to do.” Patten v. People, 18 Mich. 314, 100 Am. Dec. 173.
.It is settled, under our law, that a reasonable apprehension of death or serious bodily injury would justify appellee in using the necessary force to defend himself, and it is not required that the- danger be actual, provided he acts upon a reasonable apprehension of danger, viewed from his standpoint alone, at the time he acts. If appellee was required to wait until an effort was made to take his life or inflict serious injury upon his person, before he acted, he could stand upon that fact without the antecedent threats, and such threats would be of no value or benefit to him for his right of self-defense would be complete without them. Miles v. State, 18 Tex. App. 156.
“It is not practicable to fix on what the act manifesting the intention of the deceased to execute his threats shall be; but it must be some act reasonably calculated £o induce the belief in the mind of the defend
ant, viewing the case from his standpoint, that the threatened attack has then commenced to he then executed.” Glover v. State (Tex. Cr. App.) 107 S. W. 854.
“As before stated, deceased had threatened the life of appellant, and of these threats appellant knew. Just before the homicide, deceased had acted in a manner calculated to produce serious apprehension that these ¡threats would be put into execution. At the time the fatal shot was fired, the conduct of deceased was susceptible of two constructions — the one innocent, the other threatening, Now under this state of the case, what instructions should be given the jury? Abstract propositions? No; they will not suffice; though correct. There is but one issue presented, viz., had the appellant reasonable grounds for fearing death or serious bodily harm? To decide this issue correctly the relations of the parties to each other, their feelings towards "each other, and the nature of those feelings, should be known to the jury. And not only should this be known, but the charge of the court should be so framed as that the jury might correctly -comprehend the purposes for which the facts .are admitted in evidence. They can be so presented as not to be upon the weight of evidence.
“Keeping in mind the issue, to what facts could the jury look in determining the issue? ■Clearly to all the facts; to those transpiring at the time, as well as those occurring before. If deceased had threatened appellant’s life, this alone would not justify the homicide. To justify under threats it must be shown that, at the time of the homicide, the person slain, by some act then done, proposed to execute the threats. The threat being to kill, he must have manifested an intention to execute that threat. Now, if the act done manifests an intention to kill when viewed alone, disconnected from the threat, then the threat would avail nothing. The right of self-defense would remain with the accused, independent of the threats. But suppose the acts of the deceased, standing alone, were harmless in their import, but of a serious and •deadly character when viewed in the light of the threats (which was a phase of this case), in such case the threats become of the first importance.” Wheelis v. State, 23 Tex. App. 238, 5 S. W. 225.
Considering that the record tends to disclose that appellee believed that the plaintiffs were the parties with whom previous trouble had been had, the violent attacks made upon him by such parties and the antecedent threats to take his life, together with the fact that the plaintiffs were very boisterous, that the lights of the car were turned upon the house, that the third time the car passed the house some one that appellee believed to belong to the automobile party crossed his premises and joined himself •.to the parties in the ear, that each time the car passed the house it was slowed down, and that just preceding the shots by which the plaintiffs were injured some one from the car stated, “Pour it on the son of a bitch,” or “There he is, pour it on the son of a bitch,” that appellee was unable to see whether this language was 'followed by some additional act manifesting an intention to execute the previous threats, it is iby opinion that under the law of threats and apparent danger, under appropriate instructions, the appellee is entitled to have a jury determine whether or not he acted from apparent danger, viewed from his standpoint. Collins v. State, 97 Tex. Cr. R. 31, 259 S. W. 941; Bayer v. State, 93 Tex. Cr. R. 310, 257 S. W. 242; Atkins v. State (Tex. Cr. App.) 280 S. W. 792.
Had the party in the automobile been composed of Williams, Clark, Bentley, and Altus Nunley, and conducted themselves as plaintiffs did on that occasion, would it be questioned that from the standpoint of appellee the danger was apparent, and the facts raised an issue of self-defense to be submitted to the jury?
The original dissenting opinion written by me is withdrawn, and this is substituted therefor.
HALL, C. J., concurs.