W. L. Patillo v. The State, 22 Tex. Ct. App. 586

White, Presiding Judge. Appellant’s conviction in the lower court was for murder in the second degree, with punishment assessed at ten years in the penitentiary. It is made to appear by the evidence that, some two or three weeks prior to the homicide, appellant and deceased, Dan Bibles, had a difficulty in a billiard saloon, in which the deceased attempted to strike defendant with a billiard cue, but was prevented.

After defendant left, the deceased said: “If ever I have another fuss with Will Patillo, I’ll cut his G—d d—d heart out and kick it around like a foot ball.” Then, as if talking to himself, he said: “I’ll cut his G—d d—d heart out.” Defendant was told of this threat the next day by the witness Ferguson. It was in evidence that the deceased was peaceable when sober, but quarrelsome, violent and dangerous when drinking. The homicide occurred at about nine thirty-five o’clock in the evening.

About six o’clock that evening, the parties, deceased and defendant, were seen on the depot platform, quarreling and cursing each other ; deceased was drinking. There was no eye witness to the shooting, but defendant’s statement as to how it occurred, made to the witness Cox within between five and fifteen minutes after it had taken place, was as follows: I was on the depot platform immediately after the train came in. Dan Bibles passed me, looked in my face and then turned back and passed me again. I waited until I thought Dan had time to get home. Then I started, and after passing .

Ferguson’s saloon, I was on the side walk and a little past the saloon—a few yards—Dan Bibles called to me to hold on, Dan came up, cursing me, and asked me why I did not drink with him this evening, and I told him I would not drink with any man that would talk about a girl, like he had. Then Dan advanced on me and threw his hand behind him. I told him to stop, and he kept advancing, and I shot him.” Deceased was wounded four times, two of them—one of which was in the back—being mortal.

After the shooting, and when deceased had reached his father’s house and was undressed, his clothing was searched for weapons, and nothing was found in them except a pocket knife in his pants pocket, and it was unopened, Numerous exceptions were taken to the charge of the court to the jury, and whilst that portion relative to murder of the first degree is seriously objectionable in some respects, we do not deem it necessary to discuss it, since defendant was acquitted of that degree of murder. As to murder of the second degree, we see nothing very seriously or radically defective in said charge.

We propose mainly to notice the instructions upon self defense.

As given in the general charge the law upon this branch of the case is thus stated, viz: “ When a person is attacked by another person it is not necessary that he should retreat in order to avoid the necessity of defending himself from the assault of his assailant, but he may stand his ground and repel such assault; and if there is danger, or apparent danger, of losing his life, or of suffering serious bodily harm, at the hands of his assailant, he may, in such case, take the life of his assailant, for the purpose of protecting himself from such danger or apparent danger.” This charge was specially excepted to because it failed to instruct the jury that they were to consider the apparent danger as it appeared to defendant.

The objection is well taken. Without explanation the jury would naturally consider appearances of danger as they appeared to them from the evidence, and not as they appeared to the defendant at the time he acted in the premises. The jury could see from the evidence before them that deceased, though he threw his hand behind him, did, in fact, have no pistol, and might conclude from that fact that there was no apparent danger.

But the question was not how it appeared to them in view of the evidence, but how did the matter appear to defendant? “ It is a rule not only statutory but of almost universal acceptation that a party may act upon reasonable appearances of danger, and that whether the danger is apparent or not is always to be determined from defendant’s standpoint.” (Brumley v. The State, 21 Texas Ct. App., 223, and authorities there collated; Bell v. The State, 20 Texas Ct. App., 445; Horbach v. The State, 43 Texas, 242.) Opinion delivered December 15, 1886.

Defendant’s counsel attempted to correct this defect in the charge by a requested instruction which the court refused, and which was as follows, viz: “If the jury believe from all the facts before them, that deceased, Daniel Bibles, made an assault upon defendant, W. L.

Patillo, and that the assault was made in such manner as to reasonably cause defendant to apprehend that his life was in danger, or that he was in danger of serious bodily injury, from the assault, then defendant would be permitted by the law to defend himself by any means in his power, and if he commenced to shoot as a means of defense, he would be justified in continuing to shoot until he had reason to believe that he was of danger.” We are of opinion the court did not err in refusing the second special requested instruction, with regard to threats.

As therein announced, the legal proposition would be correct if the threats were uncommunicated, as was held in the celebrated case of Stokes for the killing of Fisk. (53 New York, 164; Whart. on Horn., 3 ed., sec. 694; Horrigan & Thompson Self Defense, 927.) But this is not the rule with regard to communicated threats. In such case the presumption is as great, to say the least of it, that the threatened party would commence the attack as that it would be commenced by the party making the threats. We are of opinion the charge of the court, as given, presented correctly the law of threats as laid down in

Article 608, Penal Code, and as applicable to the facts of the case. But, for the error of the charge as above pointed out, and for error in refusing defendant’s special instruction, supra, the judgment is reversed and the cause remanded. Beversed and remanded. [Judge Hurt has doubts about the distinction made between the rule as to communicated and uncommunicated threats.]