Winkler, J.
There was evidence introduced by the defendant to the effect that the deceased, shortly before the killing, had been in search of the defendant; that he had threatened to take the life of the defendant, and that these threats of the deceased to take the life of the defendant were made but a short time before the killing, and had been communicated to the defendant prior to the killing. Under this state of the testimony it became necessary that the court should charge the jury as to the law applicable to a case where the defendant seeks to avail himself of this character of defence. Our statute law on this subject is as follows : ‘ ‘ Where a defendant accused of murder seeks to justify himself on the ground of threats against his own [594]*594life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offence unless it be shown that, at the time of the homicide, the person killed, by some act then done, manifested an intention to execute the threat so made. In every instance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased. Such evidence shall extend only to an inquiry as to whether the deceased was a man of violent or dangerous character, or a man of kind and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made/' Rev. Penal Code, art. 608 ; Orig. Penal Code, art. 612.
The most important" question in the present case is as to the correctness and sufficiency of the charge of the court on the defence of killing on account of threats against the life of the defendant. On this branch of the subject the charge of the court was as follows : “8. Threats by one person to take the life of another are no justification of a homicide committed by the person threatened on the person who made the threats, unless the person who made the threats was, at the time of the killing, doing some act manifesting an intention to put such threats into execution. 9. If you believe from the evidence that Austin Sims did kill James Mellon as alleged, but that said Mellon had previously threatened to take the life of defendant, and was at the time of the killing doing any act manifesting an intention to put such threat into execution, you will find the defendant not gull ty. ” It is urged on the part of the defendant that the charge given by the court was too restrictive in its character ; that it confined the jury to the acts of the deceased at the time of the homicide, and did not allow the defendant to act from appearances as presented to the defendant. For the purpose of correcting the supposed defect in the charge of the court, counsel requested the court to give the jury the following additional instruction : “ That if the de[595]*595fendant, at the time of the killing of Mellon, had reasonable grounds to believe, and did believe, that he (Mellon) was about to execute his threats against the defendant, if he made serious threats to take his life, then the defendant had the right under the law to act upon such belief, so far as necessary for his safety, whether the facts evidencing such design actually existed or not; and such belief may have been based either upon the words or acts of Mellon.” The question as to the .sufficiency of the charge of the court must be tested by the article of the Penal Code set out at length herein.
Our Supreme Court, in Johnson v. The State, 27 Texas, 757, said that “ the circumstances under which a party who takes the life of another may rely upon threats as an element in his defence is clearly shown by art. 612 of the Penal Code. If, at the time of the homicide, there is an)r act from which the accused may reasonably infer an intention to carry them into effect, he is justified in resorting to such means as may be then in his power to defend and protect himself against their execution. If death ensues, it is justifiable homicide. But in no case, under the provisions of the Code, or out of it, if we were permitted to look elsewhere to ascertain the law upon the subject, can it be held that mere threats, or threats unaccompanied by some demonstration from which the accused may reasonably infer the intention of their execution by the deceased, either justify such homicide or reduce it from murder to manslaughter.” The case of Johnson was decided in 1865, Mr. Justice Moore, now chief justice, delivering the opinion of the court. In 1875, some ten years after Johnson’s case was decided, our Supreme Court had its attention again called to the sam.e subject, in the case of Irwin v. The State, 43 Texas, 236. In that case Roberts, C. J., delivered the opinion of the court, and quoted from the opinion in Johnson’s case to the same extent as above set out herein, and added an unqualified approval of what was said [596]*596in Johnson’s case, in the following emphatic language : “This is a clear statement of the established law, however else, or with different phraseology, it may be stated in other opinions of courts or in elementary treatises on criminal law.”
Such was the interpretation and application given to the article under consideration, by the Supreme Court, and repeated at long intervening intervals, prior to the organization of this court, and in which we acquiesce. In fact, we are not aware that it has ever been questioned. In placing the article of the Code and the charge of the court in juxtaposition, it is found that the charge instructs the jury, negatively, that threats by one person to take the life of another are no justification of a homicide committed by the person threatened on the person who made the threats, unless the person who made the threats was at the time of the killing doing some act manifesting intention to put such threats into execution. To our minds, this portion of the charge would be free from objection if it had been preceded by an affirmative charge, stating in effect that if, at the time of the homicide, there was any act then done by the deceased from which the defendant might reasonably have inferred an intention to carry out or put into effect the threats, he would be justified in resorting to such means as were then in his power to protect himself against the execution of the threats, and if death ensued it would be justifiable homicide. The omission of the court to give an appropriate affirmative instruction as to what the law permits a defendant to do under the given state of the case as developed by the proofs, to which the jury were required to apply the law, was an error to the defendant’s prejudice. And we are of opinion that this defect was not cured by the subsequent portion of the charge. Johnson v. The State, 43 Texas, 612. In the case under consideration there is no question that the deceased came to his death by the hand of the defendant. It is not our province to intimate that the jury [597]*597would have come to a different conclusion under a different charge. We may be permitted, however, to say that the defendant was, at the time of and immediately preceding the killing, surrounded by very peculiar circumstances, and the only defence he had was to justify the killing on the grounds of previous threats against his own life made by the deceased; and hence any feature of the charge which was calculated to deprive him of the full measure of 'that defence was necessarily prejudicial to his rights before the jury.
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Winkler, J.
There was evidence introduced by the defendant to the effect that the deceased, shortly before the killing, had been in search of the defendant; that he had threatened to take the life of the defendant, and that these threats of the deceased to take the life of the defendant were made but a short time before the killing, and had been communicated to the defendant prior to the killing. Under this state of the testimony it became necessary that the court should charge the jury as to the law applicable to a case where the defendant seeks to avail himself of this character of defence. Our statute law on this subject is as follows : ‘ ‘ Where a defendant accused of murder seeks to justify himself on the ground of threats against his own [594]*594life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offence unless it be shown that, at the time of the homicide, the person killed, by some act then done, manifested an intention to execute the threat so made. In every instance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased. Such evidence shall extend only to an inquiry as to whether the deceased was a man of violent or dangerous character, or a man of kind and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made/' Rev. Penal Code, art. 608 ; Orig. Penal Code, art. 612.
The most important" question in the present case is as to the correctness and sufficiency of the charge of the court on the defence of killing on account of threats against the life of the defendant. On this branch of the subject the charge of the court was as follows : “8. Threats by one person to take the life of another are no justification of a homicide committed by the person threatened on the person who made the threats, unless the person who made the threats was, at the time of the killing, doing some act manifesting an intention to put such threats into execution. 9. If you believe from the evidence that Austin Sims did kill James Mellon as alleged, but that said Mellon had previously threatened to take the life of defendant, and was at the time of the killing doing any act manifesting an intention to put such threat into execution, you will find the defendant not gull ty. ” It is urged on the part of the defendant that the charge given by the court was too restrictive in its character ; that it confined the jury to the acts of the deceased at the time of the homicide, and did not allow the defendant to act from appearances as presented to the defendant. For the purpose of correcting the supposed defect in the charge of the court, counsel requested the court to give the jury the following additional instruction : “ That if the de[595]*595fendant, at the time of the killing of Mellon, had reasonable grounds to believe, and did believe, that he (Mellon) was about to execute his threats against the defendant, if he made serious threats to take his life, then the defendant had the right under the law to act upon such belief, so far as necessary for his safety, whether the facts evidencing such design actually existed or not; and such belief may have been based either upon the words or acts of Mellon.” The question as to the .sufficiency of the charge of the court must be tested by the article of the Penal Code set out at length herein.
Our Supreme Court, in Johnson v. The State, 27 Texas, 757, said that “ the circumstances under which a party who takes the life of another may rely upon threats as an element in his defence is clearly shown by art. 612 of the Penal Code. If, at the time of the homicide, there is an)r act from which the accused may reasonably infer an intention to carry them into effect, he is justified in resorting to such means as may be then in his power to defend and protect himself against their execution. If death ensues, it is justifiable homicide. But in no case, under the provisions of the Code, or out of it, if we were permitted to look elsewhere to ascertain the law upon the subject, can it be held that mere threats, or threats unaccompanied by some demonstration from which the accused may reasonably infer the intention of their execution by the deceased, either justify such homicide or reduce it from murder to manslaughter.” The case of Johnson was decided in 1865, Mr. Justice Moore, now chief justice, delivering the opinion of the court. In 1875, some ten years after Johnson’s case was decided, our Supreme Court had its attention again called to the sam.e subject, in the case of Irwin v. The State, 43 Texas, 236. In that case Roberts, C. J., delivered the opinion of the court, and quoted from the opinion in Johnson’s case to the same extent as above set out herein, and added an unqualified approval of what was said [596]*596in Johnson’s case, in the following emphatic language : “This is a clear statement of the established law, however else, or with different phraseology, it may be stated in other opinions of courts or in elementary treatises on criminal law.”
Such was the interpretation and application given to the article under consideration, by the Supreme Court, and repeated at long intervening intervals, prior to the organization of this court, and in which we acquiesce. In fact, we are not aware that it has ever been questioned. In placing the article of the Code and the charge of the court in juxtaposition, it is found that the charge instructs the jury, negatively, that threats by one person to take the life of another are no justification of a homicide committed by the person threatened on the person who made the threats, unless the person who made the threats was at the time of the killing doing some act manifesting intention to put such threats into execution. To our minds, this portion of the charge would be free from objection if it had been preceded by an affirmative charge, stating in effect that if, at the time of the homicide, there was any act then done by the deceased from which the defendant might reasonably have inferred an intention to carry out or put into effect the threats, he would be justified in resorting to such means as were then in his power to protect himself against the execution of the threats, and if death ensued it would be justifiable homicide. The omission of the court to give an appropriate affirmative instruction as to what the law permits a defendant to do under the given state of the case as developed by the proofs, to which the jury were required to apply the law, was an error to the defendant’s prejudice. And we are of opinion that this defect was not cured by the subsequent portion of the charge. Johnson v. The State, 43 Texas, 612. In the case under consideration there is no question that the deceased came to his death by the hand of the defendant. It is not our province to intimate that the jury [597]*597would have come to a different conclusion under a different charge. We may be permitted, however, to say that the defendant was, at the time of and immediately preceding the killing, surrounded by very peculiar circumstances, and the only defence he had was to justify the killing on the grounds of previous threats against his own life made by the deceased; and hence any feature of the charge which was calculated to deprive him of the full measure of 'that defence was necessarily prejudicial to his rights before the jury. The jury were not even informed that they were permitted, as in Johnson’s case, above referred to, “ to take into consideration all the facts and circumstances surrounding the parties at the time of the killing which were given in evidence.” The special instruction asked by the defendant, whether strictly applicable or not, was sufficient, in our opinion, to call to the attention of the court what we deem, under the peculiar circumstances surrounding the case as developed by the statement of facts, an important omission in the charge.
The instruction having been requested at the ¡Droper time, the judge was not required to give it as asked ; but it was his duty to either give or refuse them, with or without modification, agreeably to art. 679 of the Code of Criminal Procedure. In other words, it would have been proper for the court to have given, in appropriate language, a suitable instruction curing the defect in the main charge, his attention having been specially called to the subject. But, whether the requested instruction pointed clearly to the omission in the main charge or not, it was incumbent on the judge to charge the jury and “ distinctly set forth the law applicable to the case.” Code Cr. Proc., art. 677.
Mr. Bishop (vol. 1, sect. 978, 3d ed.) says : “ The charge should simply develop the rules of law governing the particular facts—all the facts, not a part only—which the evidence tends to establish; and it is to be interpreted and judged of, not in an abstract way, but with reference to those [598]*598facts. Hence the same language may be correct or erroneous, according to the facts of which it is spoken” (citing cases from a number of States, our own among them). What is meant with us is, substantially, that the charge shall instruct the jury as to the law arising from the evidence, and as to every legitimate deduction which the jury may draw from the facts proved on the trial. Johnson v. The State, 27 Texas, 758, and previous cases cited in the opinion. In Smith v. The State, 7 Texas Ct. App. 414, it was said: “The rule of law is well settled that it is the duty of the judge to instruct the jury as to the law applicable to every legitimate view they might take of the testimony adduced on the trial.” This is precisely what we understand to be required of the judge in criminal trials tinder the Texas Code, as will be seen by reference to a number of cases.
Other matters are assigned as error, and are discussed by counsel, which we deem it unnecessary to consider here, as they may not arise on another trial. Matters relating to the charge will of necessity depend upon the testimony as developed hereafter, in the further progress of the case. We are of opinion there was error material to the rights of the defendant as herein indicated, and on account of this error the judgment must be reversed and the cause re- • manded.
Reversed and remanded.