The opinion
DAVIDSON, P. J.
(concurring). Reviewing-this case in the light of the state’s motion for rehearing, I am fully persuaded that the original opinion written by Judge MORROW is correct. I do not care to discuss the matters, in regard to the introduction of parts of the diary of appellant’s wife, held to be reversible in the original opinion. *156 The state ought not to be heard to insist upon the right to use those entries expressing her opinion of her husband’s guilt and her wish or desire for his conviction. It certainly cannot be the law that she could give her opinion of his guilt, much less her earnest desire for his conviction, as was shown by such ehtri.es. Those entries criticizing courts and animadverting upon the juriés of Bexar county for what she thought to be their derelictions in the acquittal of parties accused of crime and expressing her anxiety ánd hope for the conviction of her husband and doubt of his conviction on account of those matters were not admissible. These could not be evidence against appellant from any witness, much less from his wife. She could not have testified to these matters had she been placed upon the stand. That this was a grave and serious error will not admit of doubt. She may have believed him guilty and desired his punishment, and may have felt outraged at acquittals of accused persons in Bexar county, but her opinions and feelings could not be shown in evidence. I wish to make these few observations in agreeing to the reversal and in overruling the motion for rehearing.
I wish to make a few observations with reference to the charges of the court and the refusal of special instructions requested by appellant. These charges are sufficiently quoted by Judge MORROW in his original opinion. It will be observed in reading those charges that the court gave first a general abstract definition of self-defense which made no application to the facts. It will be noticed further that, applying the law to the case, he limited the consideration of the jury to an actual attack, and one “which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable' expectation or fear, the defendant killed the deceased, then you should acquit him,” etc. The court further instructed the jury that, if in making such attack the weapon used by deceased and the manner of its use was such as was reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or to inflict serious bodily injury. It will be discovered from this charge'that the jury was limited to an actual attack; second, to the relative strength of the parties; and, third, that if the weapon used by him was such as was reasonably calculated to produce death or serious bodily harm, then the law presumes that he intended to kill. This charge does not present correctly the rule of apparent danger, therefore the charges requested by appellant presenting that matter should have been given. The evidence does not disclose an actual attack on appellant. Self-defense was predicated alone upon apparent danger, and also as viewed in the light of threats. There is no evidence that deceased had a pistol. If he had and exhibited it, we would have presented a different question. Appellant relied upon threats to take his'life and a demonstration as he thought to draw a weapon.
The question of relative strength of the parties did not enter into the case, and there is no possible phase of the evidence which would authorize the court to submit this issue; they were not in physical encounter. The question of the relative strength of the parties may .sometimes become an important matter, but not under the circumstances found in this record. Upon another trial the jury should be instructed upon apparent danger, and the question of relative strength of the parties omitted as well as that clause of the charge which instructed the jury as to the effect of the use of a deadly weapon. Sometimes it may be a close question as to whether or not a charge should be given with reference to the use of a deadly weapon, but under the facts of this case the charge was not justified, and it tended to turn the consideration of the jury upon an issue not raised. Had deceased drawn and attempted to shoot a pistol, the question of real danger would have been raised, and the charge on actual danger called for and justified. But such issue was not in the case.
The court gave a rather restrictive and limited charge on threats which, in the judgment of the writer, should be amplified upon another trial. This charge, it will be noticed, confined appellant’s rights to the belief of .the jury as a predicate for their finding. This was error. It is the belief of the accused which furnishes the criterion. This applies as well to the question of the acts of the deceased. It is the belief of the accused that his life was in danger or his body of serious injury, viewed from his standpoint, which is the basis of our law under such circumstances. The acts and demonstrations, in view of threats by deceased, are viewed from the defendant’s standpoint at the time he acted, and if the defendant believed those' things, he was entitled to act the same as if they were true. What the jury may believe in the light of the testimony showing that deceased had no pistol is not the criterion, nor is their belief in the light of subsequent developments the criterion. It is the belief of the defendant, who is being tried for his life and liberty, under all the circumstances as they presented themselves to his mind at the time he acted, that should govern the jury in determining guilt. The jury may not, but the defendant may, have believed those things, and it is his belief by which the jury should be governed in rendering their verdict.
There is another question to which I call attention. The court charged self-defense from the standpoint of threats. There *157 should be upon another trial a charge given upon self-defense viewed in the light of apparent danger independent of the question of threats. The writer does not care to enter into a discussion of this question. In reference to the charge on threats being submitted from the defendant’s standpoint, the authorities will be found collated in Mr. Branch’s Criminal Law, §§ 447 and 482. That self-defense charge should have been independent of and disconnected from threats, see Branch’s Criminal Law, § 482, for collated authorities. As to the question of charging upon apparent, and not actual, danger, where apparent danger only is in the case, see Branch’s Criminal Law, §§ 443 and 444, for cited cases. For self-defense from defendant’s standpoint, and especially from apparent danger and threats, see Bell v. State, 20 Tex. App. 450, and Spearman v. State, 23 Tex. App. 224, 4 S. W. 586 .
Briefly I have written these as some of the reasons why I concur in the reversal of the judgment, and so write in overruling the motion for rehearing.