¶1Appellant was charged by the indictment with assault to murder, was convicted of aggravated assault and battery, and his punishment was assessed at a fine of $687.50.
¶2The court charged the jury as follows;
¶3(1) “ A person has the right to protect himself against an unlawful or violent attack, or when he has reasonable grounds to believe, *671or does believe, another is about to attack him, but in exercising this right he should not use greater force or means than is necessary to fully protect himself. If a person is attacked or about to be attacked, or has reasonable grounds to believe that he is in danger of an attack from another with a deadly weapon, he has the right to use a deadly weapon to protect himself, but he would not be justified in using a deadly weapon to defend himself against an attack from another without any weapon, if he can protect himself without resort to a deadly weapon. In other words, he should use such means as are proportionate to the character of attack upon him, and is sufficient to protect himself fully from injury, but not such as would be disproportionate to the attack on him and make him the aggressor, for in that case he could not justify on the grounds of self-defense. How, applying these rules to the case before you*.
¶4(2) “ If you believe that Stringer was about to attack or attacking Jones with a deadly weapon, or that Jones had reasonable grounds from the acts or words of Stringer, or Stringer and others, to believe he was in danger of such an attack, or did believe he was in danger of such an attack, and that to protect himself he shot Stringer, while Stringer was about to make or was making such an attack, you will acquit.”
¶5The evidence is conflicting. There is evidence strongly presenting self-defense, which is the theory of the defense; and, from the testimony of some of the witnesses, there were other persons present apparently acting with Stringer, one being armed with a pistol; that they were acting with Stringer, the party charged to have been assaulted, in an attack upon defendant; that appellant was knocked down by Stringer, and some one with him fired one shot. (See testimony of Ed. Adams.)
¶6How, if those persons were acting with Stringer in an attack upon defendant, or if they or either of them made an attack upon defendant, Stringer being present and acting with them in such manner as to make him a principal to such attack, and if the appearances were such as to cause in the mind of defendant a reasonable belief, and did cause such belief, that Stringer was a party to the attack made upon him, or which was about to be made upon him, by all or either of such parties, the defendant’s right of self-defense would extend to the acts of each and and all of the party because the act of one would be that of all. (Cartwright v. The State, 16 Texas Ct. App., 473.)
¶7Under these principles, was the charge of the court, requiring the jury to believe that Stringer was about to attack appellant with a *672deadly weapon, correct? Most evidently ..not. Suppose, as said evidence tends to show, that some other person who was acting with Stringer in the attack on appellant had shot at, or was in the act of shooting, appellant, or that appellant from the surrounding facts had reasonable grounds to believe, and did believe, that some of the Stringer party was in the act, or had done some act snowing an. immediate intention to attack him with a deadly weapon, would he not have the right to defend himself by a counter attack upon any of the party engaged in such an attack upon him? We think so: (McLaughlin v. The State, 10 Texas Ct. App., 360; Cartwright v. The State, supra.)
¶8We are of the opinion that the charge given above is wrong under the facts of this case, and was unquestionably calculated to injure the defendant.
¶9It is urged by the assistant attorney-general that this is a misdemeanor, and the charge not objected to, and hence the objection comes too late after verdict and judgment. When the charge was given to the jury the case at that time was a felony, and the rules governing the court in reference to instructions to the jury should apply.
¶10Because of error in the charge, the judgment is reversed and the cause remanded.
¶11Reversed and remanded.