"1. Appellant admitted on the trial that he stabbed deceased, claiming that it was done with a spring-back knife in self-defense while deceased had him down and was choking him and trying to open a knife. The state's testimony shows that deceased was stabbed to the heart with a dirk or sharp two-edged instrument while he was unarmed. According to the testimony for the state, appellant's wife was running a public bawdyhouse in the restricted district of the city of Houston, known as the `reservation,' and, when deceased entered the house with some companions, she sought to order them away, using very vile and vulgar language, and struck deceased, when appellant rushed out of a room there and attacked deceased, and in a short time deceased was stabbed fatally, dying in a few minutes. Appellant testified to an assault on his wife and himself; that deceased attempted to cut him with a knife, and he thought his life was in danger. The state's case amply supports the verdict, and the conflict in the testimony was settled by the jury in favor of the state, and that finding was approved by the trial judge. We think it unnecessary to make a detailed statement of the testimony, since in briefing the contentions of appellant we call attention to whatever testimony we think bears on the point involved. From the description of the wound, and the other circumstances of the case, it is almost evident that deceased was stabbed
to death with a dirk. This would sustain the allegations of the indictment as to the means, since in proving means only the substance of the issue need be proven. Chisom v. State, 179 S. W. 103.
"2. Appellant contends that the court erred in charging on murder; but it is unnecessary to determine whether or not the issue of murder was in the case, since appellant was convicted of manslaughter and received the lowest term for that grade of homicide, and any error in charging on murder or any errors in the charge on murder pass out of the case, since in no way did such error, if any, prejudice the other issues in the case. Dougherty v. State, 59 Tex. Cr. R. 464, 128 S. W. 398; Cukierski v. State, 68 Tex. Cr. R. 368, 153 S. W. 315; Condron v. State, 69 Tex. Cr. R. 513, 155 S. W. 253.
"3. Appellant also excepted to the court's charge because it did not state as a matter of law that insults to a female relative would as a matter of law be adequate cause. An inspection of the charge shows that the court did so charge the jury, probably in response to such exception, and, as appellant was convicted of manslaughter with the minimum punishment assessed, any errors, if any, in charging on manslaughter, would pass out of the case, since there is no error pointed out which could have tended to bring about a conviction. Munos v. State, 58 Tex. Cr. R. 147, 124 S. W. 941.
"4. Appellant's third exception to the court's charge complains that the charge `too prominently calls the jury's attention to the fact what the defendant's rights were, and erroneously states the converse thereof, thereby calling the jury's special attention to that feature of the charge which is set out in the last paragraph on self-defense.' Any error of the court in too prominently stating what the rights of appellant were would be in his favor. The charge on self-defense was liberal to appellant, but of this he will not be heard to complain. As to the `converse' of his rights, the court charged the jury: `If, however, you find from the evidence, after viewing the facts from the defendant's standpoint at the time of the homicide, that it did not reasonably appear to defendant that he or his wife was in danger of losing his or her life nor of suffering serious bodily injury at the hands of deceased, then and there at the time he cut the deceased, if you find he did cut him, then if you should so find you will find against his plea of self-defense.'
"This charge is almost identical with the charge in the case of Logan v. State, 46 Tex. Cr. R. 574, 81 S. W. 721, and the charge is not a `limitation' on the theory of self-defense, but is simply submitting the state's theory of self-defense. In section 1942 of Branch's Annotated Penal Code, the proposition is laid down that the charge of the court may submit the state's theory of the claim of self-defense, citing Humphries v. State, 25 Tex. App. 132, 7 S. W. 663; Garner v. State, 34 Tex. Cr. R. 356, 30 S. W. 782; Logan v. State, 46 Tex. Cr. R. 575, 81 S. W. 721; Howard v. State, 53 Tex. Cr. R. 382, 111 S. W. 1038; Arnwine v. State, 54 Tex. Cr. R. 216, 114 S. W. 797; Bordeaux v. State, 58 Tex. Cr. R. 71, 124 S. W. 646; Roberts v. State, 71 Tex. Cr. R. 77, 158 S. W. 1003.
"In Howard v. State, supra, the court uses the following language, which is again referred to and approved in Bordeaux v. State, supra: `Counsel for appellant sometimes overlook the fact that it is just as necessary and as much required of the court to submit to the jury issues raised by the state's evidence, and on which, under the law, a conviction could be had and ought to be had, as it is to submit matters wholly defensive.'
"In the case at bar, appellant claimed that deceased was choking him and was trying to open a knife with his teeth when appellant stabbed him, while in fact no knife of deceased was found, and many witnesses testify that deceased had no knife. The court fully charged on appellant's theory of self-defense and was authorized to submit the state's theory thereof. The right of self-defense is founded on the law of nature, and is not, nor can be, superseded by any law of society. Instinct teaches it to wild beasts, custom to all nations, and reason to enlightened people. All self-defense rests upon necessity: when there is no necessity to kill, it cannot be self-defense. At common law one attacked was compelled to retreat to the wall before being entitled to defend himself, but our statutes do not require one assailed to retreat in order to avoid the necessity of killing his assailant. Our laws were made in the interest of brave and law-abiding citizens, and for the protection and cultivation of true manhood; but the right of self-defense was never intended to be used as a cloak for the assassin or as a shield for one who would use unnecessary violence or excessive force. When the assault or threatened injury to another does not amount to enough to create a reasonable apprehension or fear of death or serious bodily injury, then all means reasonably proper and effective should be first invoked before resorting to a right which, under the most favorable aspect of any case, must be deemed lamentable in its exercise. Our laws demand and require an affirmative presentation of any defensive theory, though it be impliedly included in the presentation of the state's theory, and even though it is impossible to find in favor of the state's theory without finding against the defensive testimony, and there is in reason and on principle no good nor just ground for complaint that the state's theory of a proposition is affirmatively given when in juxtaposition therewith and untrammeled thereby, the defensive theory is also affirmatively submitted.
"5. Appellant contends that the court erred in not charging on the theory that appellant had a right to eject deceased from the house of himself and wife, and that if in so doing he killed him he would not be guilty. The testimony raised no such issue. The court's charge on self-defense covered fully every right appellant had in the premises, and the law knows no reasonable rules or regulations for the protection of a public bawdyhouse situated in the reservation and where prostitution is openly conducted in violation of law. What is said in Pierce v. State, 21 Tex. App. 540, 1 S. W. 463, where the same right was contended as to a gambling room, is applicable here. The court in no way limited appellant's right of self-defense by referring to appellant's being in such a house, and gave him the perfect right of self-defense on every possible phase of the case. There is a manifest difference between the sanctity of a home, and the purlieus of crime as evidenced by a public house of prostitution, where the general public is invited to visit.
"6. Bills of exception Nos. 1 to 6, inclusive, complain of the refusal of the court to give certain requested instructions. It is unnecessary to set them out. Some, if not all, are incorrect as a matter of law, since they authorize an acquittal on a state of facts which would not justify the homicide, and such as suggest any defensive theory are covered by the general charge, and what has already been said is applicable to these requested charges.
"7. The seventh bill of exceptions presents what we think the only serious question on this...
