Willson, Judge.
In this case there is no dispute as to the proof of the corpus delicti. It was proved, and not denied, that defendant committed the homicide, but it was claimed by defendant upon the trial that in committing the deed he acted in self-defense. This was the vital issue in the case. There was. no witness to the killing, the defendant and deceased being-alone at the time. Soon after the killing the defendant informed persons of it, and stated that he had shot the deceased;that he did not want to shoot him, but was compelled to do so to-save his own life, as the deceased was at the time rushing upon him with a drawn knife, and was in the act of cutting him. This being the defense, the defendant offered witnesses to prove-that the deceased was a man of violent temper and disposition, and known in his neighborhood as being quarrelsome and frequently engaged in fights and broils, and that such was the general character of the deceased. Upon objection made by the prosecution, this proposed evidence was rejected by the court, and this action of the court is presented by a bill of exceptions, and assigned as error.
In Creswell v. The State (ante, page 1), decided by this court at its present term, it was said: “Threats made by deceased, and the dangerous character of the deceased, are only admissible where it is shown that, at the time of the homicide the deceased did some act indicating his purpose then to take the life of the [110]*110defendant, or do him some serious bodily harm, or when the circumstances of the case raise a doubt in regard to the question whether the accused committed the homicide in self-defense.” In that case it was held that there was nothing in the evidence which rendered the testimony offered to prove the violent and dangerous character of the deceased admissible, and the ruling of the trial court in rejecting such evidence was held by this court to be correct. This decision, however, was based upon the sole ground that the facts and circumstances of the case did not show “that at the time of the homicide the deceased was doing any act indicating a purpose to kill or injure the defendant, or tending to show that the homicide was committed in self-defense.”
In the case now before us, the facts proved art- different. Here there is testimony which, if believed, establishes justifiable homicide, or at least reduces the homicide to a lower grade than murder in the first degree. It is not for us, and it was not for the trial judge, to consider the weight of this testimony. That was a matter solely and exclusively within the province of the jury. Being the statement of the defendant, it might be entitled, standing alone, to but little weight, if any whatever. On the other hand, if it were corroborated by other facts and circumstances in evidence, it might be entitled to much weight. Be this as it may, the evidence was before the jury for their consideration, and they alone could pass upon its credibility and probative force. Such being the state of case, the defendant, in support of his plea of self-defense, proposed to prove the violent and dangerous character of the deceased. He offered this as a circumstance in corroboration of his own statement already in evidence, that he had committed the homicide to save himself from a dangerous and deadly attack then being made upon him by the deceased. Was he entitled to place this evidence before the jury?
We ;hink this question is settled in the affirmative by the leading case of Horbach v. The State, 43 Texas, 242, wherein the authorities are elaborately reviewed, and the conclusions to which they lead stated as follows: “It maybe deduced from these authorities that the general character of the deceased for violence may be proved when it would serve to explain the actions of the deceased at the time of the killing; that the actions which it would serve to explain must first be proved before it would be admissible as evidence; that if no such acts were [111]*111proved as it would serve to explain, its rejection, when offered in evidence, would not be error; and that if rejected when a proper predicate has been established for its admission, it is held to be error. This results in what has previously attempted to be developed, that the general character of the deceased for violence should be allowed to be proved, not as a substantive fact, in whole or in part abstractly constituting a defense, but as auxiliary to and explanatory of some fact or facts proved to have occurred at and in connection with the killing, which tend to establish a defense when thereby aided by furnishing reasonable ground for the belief on the part of the slayer that he is then in immediate and imminent danger of the loss of his life from the attack of his assailant. It is observable in most of these cases that it is said that the evidence of character for violence is admissible in a doubtful case. It can hardly be meant by this that it is admissible only in a doubtful case of guilt; for if that is doubtful, there is no need of proof of character or anything else to help out the defense. The explanation, it is submitted, is that the person killing is presumed to have committed murder by the act of killing; and in arraying the facts to establish that he acted in self-defense, if an act of the deceased at the time of the killing is of doubtful import, or is otherwise of a character that it would be explained more favorably for the accused by adding to it the proof of the character of the deceased for violence, then such proof is admissible.”
These conclusions announced in the Horbach case are abundantly sustained by American authorities. Mr. Wharton, in his excellent work on Criminal Evidence, treats this subject exhaustively, reviewing both the English and American decisions, and concludes as follows: “ Taking the authorities as a whole, therefore, we may hold that it is admissible for the defendant, having first established that he was assailed by the deceased, and in apparent danger, to prove that the deceased was a person of ferocity, brutality, vindictiveness, and of excessive strength; such evidence being offered for the purpose of showing either, 1, that the defendant was acting in terror, and hence incapable of that specific malice necessary to constitute murder of the first degree; or 2, that he was in such apparent extremity as to make out a case of self-defense; or 3, that the deceased’s purpose in encountering the defendant Was deadly.” (Whart. Crim. Ev., secs. 69-84.)
And Mr. Bishop says: “Where the defendant, to excuse or [112]*112mitigate his acts, claims that they were in self-defense or passion, the particulars of the transaction being thus material, and the law judging him by the facts and necessities as they appeared to him, whatever they truly were, he may give in evidence anything known to him of the character, prior conduct, threats, or other utterances of the person with whom he was contending,, which, not as showing that the man was bad, but that in the special instance and circumstances he was dangerous, might reasonably have place among the considerations guiding his actions.” (2 Bish. Or. Proc., sec. 610.)
It is needless- to multiply authorities upon .this question.
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Willson, Judge.
In this case there is no dispute as to the proof of the corpus delicti. It was proved, and not denied, that defendant committed the homicide, but it was claimed by defendant upon the trial that in committing the deed he acted in self-defense. This was the vital issue in the case. There was. no witness to the killing, the defendant and deceased being-alone at the time. Soon after the killing the defendant informed persons of it, and stated that he had shot the deceased;that he did not want to shoot him, but was compelled to do so to-save his own life, as the deceased was at the time rushing upon him with a drawn knife, and was in the act of cutting him. This being the defense, the defendant offered witnesses to prove-that the deceased was a man of violent temper and disposition, and known in his neighborhood as being quarrelsome and frequently engaged in fights and broils, and that such was the general character of the deceased. Upon objection made by the prosecution, this proposed evidence was rejected by the court, and this action of the court is presented by a bill of exceptions, and assigned as error.
In Creswell v. The State (ante, page 1), decided by this court at its present term, it was said: “Threats made by deceased, and the dangerous character of the deceased, are only admissible where it is shown that, at the time of the homicide the deceased did some act indicating his purpose then to take the life of the [110]*110defendant, or do him some serious bodily harm, or when the circumstances of the case raise a doubt in regard to the question whether the accused committed the homicide in self-defense.” In that case it was held that there was nothing in the evidence which rendered the testimony offered to prove the violent and dangerous character of the deceased admissible, and the ruling of the trial court in rejecting such evidence was held by this court to be correct. This decision, however, was based upon the sole ground that the facts and circumstances of the case did not show “that at the time of the homicide the deceased was doing any act indicating a purpose to kill or injure the defendant, or tending to show that the homicide was committed in self-defense.”
In the case now before us, the facts proved art- different. Here there is testimony which, if believed, establishes justifiable homicide, or at least reduces the homicide to a lower grade than murder in the first degree. It is not for us, and it was not for the trial judge, to consider the weight of this testimony. That was a matter solely and exclusively within the province of the jury. Being the statement of the defendant, it might be entitled, standing alone, to but little weight, if any whatever. On the other hand, if it were corroborated by other facts and circumstances in evidence, it might be entitled to much weight. Be this as it may, the evidence was before the jury for their consideration, and they alone could pass upon its credibility and probative force. Such being the state of case, the defendant, in support of his plea of self-defense, proposed to prove the violent and dangerous character of the deceased. He offered this as a circumstance in corroboration of his own statement already in evidence, that he had committed the homicide to save himself from a dangerous and deadly attack then being made upon him by the deceased. Was he entitled to place this evidence before the jury?
We ;hink this question is settled in the affirmative by the leading case of Horbach v. The State, 43 Texas, 242, wherein the authorities are elaborately reviewed, and the conclusions to which they lead stated as follows: “It maybe deduced from these authorities that the general character of the deceased for violence may be proved when it would serve to explain the actions of the deceased at the time of the killing; that the actions which it would serve to explain must first be proved before it would be admissible as evidence; that if no such acts were [111]*111proved as it would serve to explain, its rejection, when offered in evidence, would not be error; and that if rejected when a proper predicate has been established for its admission, it is held to be error. This results in what has previously attempted to be developed, that the general character of the deceased for violence should be allowed to be proved, not as a substantive fact, in whole or in part abstractly constituting a defense, but as auxiliary to and explanatory of some fact or facts proved to have occurred at and in connection with the killing, which tend to establish a defense when thereby aided by furnishing reasonable ground for the belief on the part of the slayer that he is then in immediate and imminent danger of the loss of his life from the attack of his assailant. It is observable in most of these cases that it is said that the evidence of character for violence is admissible in a doubtful case. It can hardly be meant by this that it is admissible only in a doubtful case of guilt; for if that is doubtful, there is no need of proof of character or anything else to help out the defense. The explanation, it is submitted, is that the person killing is presumed to have committed murder by the act of killing; and in arraying the facts to establish that he acted in self-defense, if an act of the deceased at the time of the killing is of doubtful import, or is otherwise of a character that it would be explained more favorably for the accused by adding to it the proof of the character of the deceased for violence, then such proof is admissible.”
These conclusions announced in the Horbach case are abundantly sustained by American authorities. Mr. Wharton, in his excellent work on Criminal Evidence, treats this subject exhaustively, reviewing both the English and American decisions, and concludes as follows: “ Taking the authorities as a whole, therefore, we may hold that it is admissible for the defendant, having first established that he was assailed by the deceased, and in apparent danger, to prove that the deceased was a person of ferocity, brutality, vindictiveness, and of excessive strength; such evidence being offered for the purpose of showing either, 1, that the defendant was acting in terror, and hence incapable of that specific malice necessary to constitute murder of the first degree; or 2, that he was in such apparent extremity as to make out a case of self-defense; or 3, that the deceased’s purpose in encountering the defendant Was deadly.” (Whart. Crim. Ev., secs. 69-84.)
And Mr. Bishop says: “Where the defendant, to excuse or [112]*112mitigate his acts, claims that they were in self-defense or passion, the particulars of the transaction being thus material, and the law judging him by the facts and necessities as they appeared to him, whatever they truly were, he may give in evidence anything known to him of the character, prior conduct, threats, or other utterances of the person with whom he was contending,, which, not as showing that the man was bad, but that in the special instance and circumstances he was dangerous, might reasonably have place among the considerations guiding his actions.” (2 Bish. Or. Proc., sec. 610.)
It is needless- to multiply authorities upon .this question. We consider it conclusively settled that, in a trial for homicide, where there is evidence tending to show that in committing the homicide the defendant acted in self-defense, or under the reasonable apprehension that his life was in danger, or that he was in danger of serious bodily harm, by reason of some act of deceased then done indicating an intention to kill or do serious bodily harm, or that he acted under the influence of passion without deliberation, he is entitled to prove, in explanation, extenuation or justification of his acts, the general character of the deceased as being that of a violent and dangerous man, or his general character in any other respect which would tend to determine the grade of the homicide by showing the intent actuating the defendant in its commission.
Under the facts in this case, we are clearly of the opinion that the defendant was entitled to prove that the general character of the deceased was that of a violent and dangerous man, and that the court erred in rejecting the offered evidence. Whether or not such evidence, if it had been admitted, would have probably changed the result of the trial, is not for this or any other court to determine. It was a matter to be considered alone by the jury, and it was'the defendant’s right that it should go to. the jury for their consideration in connection with the other evidence, it being both pertinent and material.
Several objections are made by defendant’s counsel to the charge of the court. As the judgment of conviction must be reversed because of the error hereinbefore noticed, it is not necessary that we should consider the alleged errors in the charge of the court. Therefore,' without either approving or disapproving the portions of the charge excepted to, we will only say that in connection with, and as a portion of the charge upon the law of self-defense, we think, in view of the evidence in this [113]*113case, the court should have charged that a person who is unlawfully, and violently attackéd by another, under circumstances which would, in law, make the homicide of the assailant justifiable, is not bound to retreat in order to avoid the necessity of killing his assailant. (Penal Code, Arts. 571, 572 and 573.)
Another question is presented by the record, in relation to the action of the court in refusing to receive the first verdict returned by the jury, because it was not responsive to the charge of the court, and in receiving the corrected verdict. As this question is not likely to recur in another trial of the cause, it is unnecessary that we should now determine it. It will be the time to investigate and decide it, when it becomes necessary to the disposition of a case.
Because of the error of the court in rejecting the proposed testimony to prove the general character of deceased, and because of the further error in the charge of the court which we have specified, the judgment is reversed and the cause is remanded.
Reversed and remanded.
Opinion delivered April 28, 1883.