Willson,- ' Judge.
Notwithstanding the voluminous record in this case, there are but two questions of importance presented by it for determination. Those questions are: 1-. Did the trial ■court err in omitting and refusing to instruct the jury upon the law of self defense? 2. Did it err in omitting and refusing to instruct the jury upon the law of «manslaughter. The answers to these questions must be found in the evidence. The charge of the court is always sufficient if it distinctly sets forth the law applicable to the evidence;' and it is only necessary to give such instructions as are applicable to every legitimate deduction to be drawn- from the facts in proof. (Evans v. The State, 13 Texas Ct. App., 225.) The charge must be tested by the evidence. Where the issue of self defense is not fairly raised by the evidence, no charge upon- that issue is required, or should be given. (Smith v. The State, 22 Texas Ct. App., 316; Wallace v. The State, 20 Texas Ct. App., 360.) In the absence of evidence tending to establish, or that creates a doubt, as to whether the homicide be of a lower grade than murder, it is unnecessary and improper for the court to charge upon manslaughter. (Willson’s Texas Cr. Laws, section 1030; also sections 986 to 1070.)
Briefly but substantially stated, the evidence in this case is as -follows: At the time of the homicide the defendant was the ■sheriff of Medina county, in the court house of which county the killing occurred. Deceased was a lawyer, a resident of San Antonio, and was in the court house of Medina county, attending to business in the office of the county clerk.' Defendant and deceased were not on 'friendly terms. They were at enmity with •each other. The cause of this state of feeling between them is not fully disclosed by the evidence, nor was it material that it should have been. Defendant is a large, athletic, physically powerful man, while the deceased was a small man, crippled in one arm. Deceased was sitting before a desk in the clerk’s office, engaged in writing or in the examination of records. [701]*701There was but one other person in the office, an aged man, who testified as a witness in the case. Defendant went into the office, saw the deceased, the side of deceased being towards the door through which defendant entered the office. Upon seeing deceased and the old man, defendant stopped a moment, looked at the old man, then calmly approached the deceased, and without warning began striking deceased on the head with his fist. Deceased turned his head toward defendant and threw up his arm, as if to protect himself from the blows being inflicted upon him by the defendant. Defendant then seized a large mucilage bottle which was about half full of mucilage, and which weighed more than one pound, and with this bottle struck deceased over the head, continuing so to strike until the force of the blows shattered the bottle. Deceased, wounded, bleeding and staggering, fled from the room, defendant following him closely. Deceased passed out of the room door into a hall and thence on to a porch a few feet distant, drew a pistol, wheeled suddenly around and fired back into the hall which he had just passed through. Defendant, at the time of this shot by deceased, was standing at the office door, with his left hand upon the door facing, his right hand hanging down by his side, his head just outside the doorway, and facing in the direction of the deceased, and the remainder of his person inside the office. When deceased fired back into the hall defendant instantly drew his pistol, fired and killed the deceased, the deceased firing a second shot almost simultaneously with the fatal shot fired by the defendant. These are the leading facts of the case.
Do these facts fairly raise the issue of self defense? We think not. Let us apply the law to them. It is an elementary principle of the law that self defense is a defensive, not an offensive act, and must not exceed the bounds of mere defense and prevention. There must be at least an apparent necessity to ward off by force some unlawful and violent attack. It is a right based upon and limited by necessity. (Willson’s Texas Crim. Laws, sec. 969.)
In this case, to our minds, the evidence - shows that no such necessity as the law contemplates as a justification for homicide existed. Defendant was inside the room, protected by impenatrable rock walls from the shots of the deceased. Deceased was not advancing upon him, but was standing upon the porch, firing back into the hall. All that the defendant had to do to fully protect himself from the shots of the deceased was to with[702]*702■draw his head from the door. This done and he was safe. He had every advantage of the deceased. He was cool and collected, armed with a six shooter, securely ensconsed in walls of stone. His adversary was wounded, bleeding and excited, and ■could not advance upon or get a shot at the defendant without -exposing himself to a fair and first shot from the defendant.
It is true that a person when unlawfully attacked is not bound to retreat in order to entitle him to the benefit of the plea of self defense. But that rule can not be made applicable to the facts of this case. It did not require retreat on the part of the defendant to place himself beyond the reach of danger from the deceased. It required only a cessation of hostile pursuit of the deceased. He had not ceased such pursuit. He had not abandoned the attack; he was still following it up, but cautiously and coolly, evidently, as we think the facts show, hoping and expecting that the deceased in his bruised and half crazed condition, would, by some act, furnish a faint excuse for a fatal shot. He did not miscalculate the result. He saw his opportunity, .and with the coolness of a practised slayer he availed himself of it. We fail to perceive from the evidence that any necessity for the homicide existed.
But, again, to one who brings on an affray or who prepares himself for an encounter in which he intends to wreak his malice, the plea of self defense is not available, though his own life be imperiled in the affray. If a person by his own wrongful act brings about the necessity of taking the life of another, to prevent being himself killed, he can not say that such killing was .in his necessary self defense. A person can not avail himself of ■a necessity which he has knowingly and willfully brought upon himself. (Willson’s Texas Crim. Laws, sec. 981.) If a person voluntarily engage in a combat, knowing that it will or may result in death, or some serious bodily injury which may. produce the death of his adversary or himself, he can not claim that he is acting in self defense. (Willson’s Texas Crim. Laws, sec. 982.)
Apply these rules to the facts. Defendant brought on the affray, and evidently with the intention to wreak his malice upon the deceased. If any necessity arose for him to kill the deceased -to protect himself from injury, that necessity was produced by his ■own willful and malicious act. It is argued by his counsel that if he made the assault upon the deceased in the first instance with no intent to kill or to inflict serious bodily harm upon him, but with the intention merely to inflict upon him an ordinary battery, [703]*703he would not be wholly deprived of the right of self defense, but that, under the doctrine of imperfect or abridged self defense» he would not be guilty of a higher grade of homicide than manslaughter.
Without pausing to discuss the doctrine of imperfect self defense, we will dispose of the matter by saying that in our judgment it is not applicable to the evidence in this case.
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Willson,- ' Judge.
Notwithstanding the voluminous record in this case, there are but two questions of importance presented by it for determination. Those questions are: 1-. Did the trial ■court err in omitting and refusing to instruct the jury upon the law of self defense? 2. Did it err in omitting and refusing to instruct the jury upon the law of «manslaughter. The answers to these questions must be found in the evidence. The charge of the court is always sufficient if it distinctly sets forth the law applicable to the evidence;' and it is only necessary to give such instructions as are applicable to every legitimate deduction to be drawn- from the facts in proof. (Evans v. The State, 13 Texas Ct. App., 225.) The charge must be tested by the evidence. Where the issue of self defense is not fairly raised by the evidence, no charge upon- that issue is required, or should be given. (Smith v. The State, 22 Texas Ct. App., 316; Wallace v. The State, 20 Texas Ct. App., 360.) In the absence of evidence tending to establish, or that creates a doubt, as to whether the homicide be of a lower grade than murder, it is unnecessary and improper for the court to charge upon manslaughter. (Willson’s Texas Cr. Laws, section 1030; also sections 986 to 1070.)
Briefly but substantially stated, the evidence in this case is as -follows: At the time of the homicide the defendant was the ■sheriff of Medina county, in the court house of which county the killing occurred. Deceased was a lawyer, a resident of San Antonio, and was in the court house of Medina county, attending to business in the office of the county clerk.' Defendant and deceased were not on 'friendly terms. They were at enmity with •each other. The cause of this state of feeling between them is not fully disclosed by the evidence, nor was it material that it should have been. Defendant is a large, athletic, physically powerful man, while the deceased was a small man, crippled in one arm. Deceased was sitting before a desk in the clerk’s office, engaged in writing or in the examination of records. [701]*701There was but one other person in the office, an aged man, who testified as a witness in the case. Defendant went into the office, saw the deceased, the side of deceased being towards the door through which defendant entered the office. Upon seeing deceased and the old man, defendant stopped a moment, looked at the old man, then calmly approached the deceased, and without warning began striking deceased on the head with his fist. Deceased turned his head toward defendant and threw up his arm, as if to protect himself from the blows being inflicted upon him by the defendant. Defendant then seized a large mucilage bottle which was about half full of mucilage, and which weighed more than one pound, and with this bottle struck deceased over the head, continuing so to strike until the force of the blows shattered the bottle. Deceased, wounded, bleeding and staggering, fled from the room, defendant following him closely. Deceased passed out of the room door into a hall and thence on to a porch a few feet distant, drew a pistol, wheeled suddenly around and fired back into the hall which he had just passed through. Defendant, at the time of this shot by deceased, was standing at the office door, with his left hand upon the door facing, his right hand hanging down by his side, his head just outside the doorway, and facing in the direction of the deceased, and the remainder of his person inside the office. When deceased fired back into the hall defendant instantly drew his pistol, fired and killed the deceased, the deceased firing a second shot almost simultaneously with the fatal shot fired by the defendant. These are the leading facts of the case.
Do these facts fairly raise the issue of self defense? We think not. Let us apply the law to them. It is an elementary principle of the law that self defense is a defensive, not an offensive act, and must not exceed the bounds of mere defense and prevention. There must be at least an apparent necessity to ward off by force some unlawful and violent attack. It is a right based upon and limited by necessity. (Willson’s Texas Crim. Laws, sec. 969.)
In this case, to our minds, the evidence - shows that no such necessity as the law contemplates as a justification for homicide existed. Defendant was inside the room, protected by impenatrable rock walls from the shots of the deceased. Deceased was not advancing upon him, but was standing upon the porch, firing back into the hall. All that the defendant had to do to fully protect himself from the shots of the deceased was to with[702]*702■draw his head from the door. This done and he was safe. He had every advantage of the deceased. He was cool and collected, armed with a six shooter, securely ensconsed in walls of stone. His adversary was wounded, bleeding and excited, and ■could not advance upon or get a shot at the defendant without -exposing himself to a fair and first shot from the defendant.
It is true that a person when unlawfully attacked is not bound to retreat in order to entitle him to the benefit of the plea of self defense. But that rule can not be made applicable to the facts of this case. It did not require retreat on the part of the defendant to place himself beyond the reach of danger from the deceased. It required only a cessation of hostile pursuit of the deceased. He had not ceased such pursuit. He had not abandoned the attack; he was still following it up, but cautiously and coolly, evidently, as we think the facts show, hoping and expecting that the deceased in his bruised and half crazed condition, would, by some act, furnish a faint excuse for a fatal shot. He did not miscalculate the result. He saw his opportunity, .and with the coolness of a practised slayer he availed himself of it. We fail to perceive from the evidence that any necessity for the homicide existed.
But, again, to one who brings on an affray or who prepares himself for an encounter in which he intends to wreak his malice, the plea of self defense is not available, though his own life be imperiled in the affray. If a person by his own wrongful act brings about the necessity of taking the life of another, to prevent being himself killed, he can not say that such killing was .in his necessary self defense. A person can not avail himself of ■a necessity which he has knowingly and willfully brought upon himself. (Willson’s Texas Crim. Laws, sec. 981.) If a person voluntarily engage in a combat, knowing that it will or may result in death, or some serious bodily injury which may. produce the death of his adversary or himself, he can not claim that he is acting in self defense. (Willson’s Texas Crim. Laws, sec. 982.)
Apply these rules to the facts. Defendant brought on the affray, and evidently with the intention to wreak his malice upon the deceased. If any necessity arose for him to kill the deceased -to protect himself from injury, that necessity was produced by his ■own willful and malicious act. It is argued by his counsel that if he made the assault upon the deceased in the first instance with no intent to kill or to inflict serious bodily harm upon him, but with the intention merely to inflict upon him an ordinary battery, [703]*703he would not be wholly deprived of the right of self defense, but that, under the doctrine of imperfect or abridged self defense» he would not be guilty of a higher grade of homicide than manslaughter.
Without pausing to discuss the doctrine of imperfect self defense, we will dispose of the matter by saying that in our judgment it is not applicable to the evidence in this case. As we view the evidence, the defendant deliberately, and with a formed design to kill the deceased or to inflict upon him serious injury, which would probably result in death, made a violent, dangerous and brutal assault upon him. Even a battery with the fist of a man of his great physical weight and strength, inflicted upon an emaciated, feeble and crippled man, such as the deceased was proven to be, would be capable of inflicting serious bodily injury which might probably cause the death of the assaulted party. But, not content to use the greatly superior physical power which nature had endowed him with, he resorted to the use of a dangerous, if not a deadly, weapon, and with it inflicted blow after blow upon his helpless and unresisting victim. He used this weapon until it was shattered into fragments by the force of his ponderous blows. What intent was actuating him throughout this brutal assault? Was it merely to inflict an ordinary battery? It would be doing violence to the truth and to reason to so conclude. It is manifest to our minds from the evidence that the assault was made by him in the first instance with a deadly intent, with a heart regardless of social duty and fatally bent on mischief; with the purpose and formed design that such assault should result in the death of the man he hated. There is no room, it seems to us, for the impartial mind to reach any other conclusion from the evidence as to the intent of the defendant. We can not construe the facts so as to make them fairly raise the issue of even imperfect self defense. We are clearly of the opinion, therefore, that the court did not err, but acted properly in omitting and refusing to charge the jury upon the law of self defense.
This view of the matter disposes also of the question as to manslaughter. It is only upon the theory of imperfect self defense that manslaughter, in this case, could be predicated, and as imperfect self defense does not arise upon the facts, neither does the issue of manslaughter.
We have given to this case, and to each question presented by the record, thorough consideration. We have had the benefit of [704]*704able and exhaustive arguments and briefs from counsel for the State and the defendant. We have arrived at our conclusions not hastily, but deliberately and thoughtfully, and our undivided and mature judgment is that the conviction is in no respect erroneous, and should be affirmed; and it is so adjudged.
Opinion delivered January 28, 1888.
Affirmed. .