¶1 (dissenting).—This is the second appeal of this ease, the former appeal being reported in 62 Texas Crim. Rep., 485. It is also a companion case to Overcash v. State, 67 Texas Crim. Rep., 148 S. W. Rep., 701.
¶2 I deem it unnecessary to make a statement of the facts except as may be incidentally connected with the legal questions discussed. The court gave the following charge:
¶3 “If on the day of the killing of the deceased, the defendant was in the grain house and feed store of W. J. Overeash, that was run in connection with a wagon yard, and was there carrying a pistol on and about his person, then I charge you that he was violating the laws of Texas, for which he was subject to arrest by the sheriff or any deputy sheriff of Throckmorton County, Texas, upon a warrant; and if the deceased, J. G. Spurlock, being the sheriff, and L. W. Nichols, being the deputy sheriff of said county, were informed by any credible person or such violation of the law, if any, by defendant, it became their duty to arrest defendant for such violation of the law, with a warrant, and if the officers were informed,” etc. The *525 charge also further instructed the jury that these officers were not authorized by law, however, to use any greater force than was necessary to secure the arrest and detention of the defendant, and what force was necessary to secure the arrest and detention of the defend^ant was a question of fact to be determined by the jury from all of the facts and circumstances in evidence in the ease. Several objections were urged to the charge, among others, that it was an assumption of a fact, that is, that portion of the charge which informed the jury that if appellant was carrying a pistol on or about his person at the feed store he would be violating the law, which authorized the deceased sheriff and his deputy to make the arrest, etc. The evidence discloses, as far as I have been able to ascertain from the record, that there had been a difficulty between appellant and Charley Jones a short time before the shooting, which resulted in the homicide of Spurlock; that Jones informed the sheriff’s office of that fact, and made an affidavit against appellant for carrying a pistol. The facts in connection with the difficulty between Jones and appellant as detailed by the witnesses Pigg and Barnes and appellant are about as follows: Jones had gone into the grain house of Overcash where appellant was, a quarrel and difficulty ensued, during which appellant reached up and secured out of the coat pocket of Overcash, which was hanging near by, a pistol. This seems to be uncontradieted. Jones’ evidence would convey the idea that appellant shot between his feet or into the floor about his feet for the purpose of frightening him. About the time that appellant obtained the pistol from the pocket of Overcash’s coat, Overcash came upon the scene and undertook to take the pistol from appellant, and while they were scuffling over it it was accidentally discharged, the ball entering the floor near where Jones was standing. All the witnesses agree that Overcash took the pistol from appellant, broke it and dropped the shells from it and immediately locked it in his (Overcash’s) desk. Jones went away and made the affidavit against appellant for carrying a pistol. The facts stated do not constitute carrying a pistol on and about the person of appellant. When the difficulty between himself and Jones occurred he reached up in the pocket of Overcash’s coat and got the pistol, which Overcash undertook to take away from him, when it was accidentally discharged. This does not constitute carrying a pistol, and the court was in error in so instructing the jury and authorizing them to so find or believe. The court by this charge assumed and charged upon a phase of the case not justified by the facts, and, of course, detrimentally to appellant before the jury. It assumed or authorized the jury to assume a fact which was not a fact and not supported by the evidence.
¶4 There is another phase of this matter that ought to be noticed. The court having given the charge above quoted and criticized, failed to give the converse of the proposition, that is, if appellant did not carry the pistol, then the jury was not authorized so to find. If he did not *526 carry the pistol he was not violating the pistol law, as the court instructed the jury he was doing by carrying it. The charge does not relieve the ease of the assumption of the fact that appellant was carrying a pistol. The charge was on the weight of evidence by putting it to the jury as it did, authorizing them to believe he was carrying the pistol, in the first instance, and in not giving the converse of the proposition after having given the charge given. The jury is not authorized to believe nor the court to charge the jury that they might believe a fact against an accused when the facts and circumstances in evidence do not justify or raise it. It was the assumption of a damaging fact against the accused not in evidence, and placed him in the attitude of being a violator of the law and a wrongdoer. He may have violated the law in shooting at the man’s feet, if he did shoot at his feet or between them, or in front of him, but that charge was not given by the court.
¶5 The court charged the jury as follows: “If you believe from the evidence that the deceased, J. Gr. Spurlock, and L. W. Nichols, went to the Overcash wagon yard and feed store to arrest the defendant, A. 0. Condron, upon the charge of unlawfully carrying a pistol, and that they were armed with pistols and appeared thus' armed before and near the door of said grain store, and that the appearance of the officers thus armed, or their attempt to use such weapons, if they did so attempt to use them, or anything then done by. said officers, or either of them at the time, either alone, or when taken into consideration with all the other facts and circumstances in evidence in this case, was such as would commonly produce such a degree of anger, rage, sudden resentment or terror, in a person o.f ordinary temper, under like circumstances with the defendant, as to render the mind incapable of cool reflection; or if you believe from the evidence that the said officers, in attempting to arrest the defendant, were using greater force than was necessary under the circumstances to secure the arrest and detention of the defendant; or that they had time and opportunity to inform him by what authority they were about to arrest him, and having such time and opportunity failed to inform him, and that their manner of attempting such arrest was such as would commonly produce such a degree of anger, rage, sudden resentment or terror, in a person of ordinary temper, under like circumstances with the defendant, as to render the mind incapable of cool reflection, and while under the influence of such sudden passion he participated as a principal offender, if he was such offender, in killing J. Gr. Spurlock at the time and place charged in the indictment, then you will find the defendant guilty of manslaughter and assess his punishment accordingly at confinement in the penitentiary for not less than two nor more than five years.”
¶6 Various objections were urged to this charge. I deem it unnecessary to recapitulate them. Before mentioning the criticisms of the above charge, which is No. 18 in the general charge, I desire to notice *527 another phase of the court’s charge, subdivision 13, which is as follows: “But if the deceased and L. W. Nichols attempted to arrest the defendant, with a warrant in wanton manner, and in doing so used greater force than was necessary in the attempted arrest of the defendant, the use of such greater force than was necessary, if any, was illegal, and the defendant had the lawful right to resist it, and if necessary or apparently necessary in his self-defense, to kill the party or parties engaged in such unlawful attempt to use such unnecessary force, if any was used by them.”
¶7 These charges are incompatible and in conflict. In one of the charges the jury is instructed that if the parties undertook to arrest in a wanton and unjustifiable manner, using greater force than was necessary, the defendant had the right to resist, and would be justified in killing. In the other charge the jury is instructed that if the sheriff undertook to arrest and used greater force than was necessary, and without giving the party notice of his purpose to arrest, etc., and used greater force than was necessary, he, the defendant, nevertheless, would be guilty of manslaughter. So it is observable that under one charge defendant would be justified in resisting, even to killing. Under the other he would not be justified, but would be guilty of manslaughter. These charges are confusing, and to say the least of it, contradictory. Wherever charges on the same subject are thus contradictory, objections to them are well taken and the error is reversible. As I understand this record, the greater force that was used by the officers was shooting at Overcash and appellant, during which they shot appellant and wounded him. The law with reference to the use of greater force does not belong under such state of facts. If the officers in approaching the two defendants began firing upon them, the question of greater force is not an issue in the case, and this limitation upon the right of self-defense was unjustifiable, and yet the jury is instructed that under this condition in one charge they could convict of manslaughter, and under the other they could acquit on the theory of justification.
¶8 Section 28 of the charge reads thus: “The burden rests on the State to establish the guilt of the defendant beyond a reasonable doubt; and if after considering all of the evidence before you, you have a reasonable doubt of his guilt, you will acquit him; but if the evidence satisfies your mind beyond a reasonable doubt of the guilt of the defendant as charged in the indictment, then you will convict him and ascertain from the evidence under the charge of the court, the grade or degree of the offense of which he is guilty and assess his punishment therefor accordingly.” This charge is held to be error in Comegys v. State, 62 Texas Crim. Rep., 235. The Comegys’ case lays down the correct and well settled rule. Appellant had the right to have reasonable doubt and presumption of innocence presented to the jury untrammeled by such qualification. That the State’s side of the case may and should be appropriately submitted *528 to the jury is the law of the land, but it is equally the law that the defendant shall have his side of the law, that is, such phases of the law as guarantee his legal rights, given untrammeled by qualifications that cut him off from the benefit of such law.
¶9 There is another contention urged by appellant, to-wit: That in section 20 of the charge the court shifts the burden, or rather places it on defendant to show the deceased was attacking him or about to do so at the time of the killing. This was given as- a basis for a further charge of the court to the effect that if the officers were armed at the time of the diculty, the law would presume they intended to kill or inflict serious bodily injury. This charge as given was error in my judgment. That the officers were armed was undisputed, for they began shooting and continued shooting until Spurlock was killed and defendant was shot down. The legal presumption that the officers intended to kill by the use of the means used by them should not have been curtailed as it was by the court in his charge. I deem it unnecessary to go further with this matter.
¶10 Believing as I do, under the unbroken line of authorities and the settled law in Texas, that appellant has not been tried according to law, and has been deprived of those rights guaranteed under statutory enactments in this State, I enter the above why I cannot agree with this affirmance. I therefore must respectfully enter my dissent.