The defendant, Martin Cheek, was indicted by the grand jury of Robertson County, on April 25, 1870, for the murder of one Horace Eaton, in that county, on March 20, 1870. There was but one count in the indictment. He was tried on June 14, 1877, and convicted of murder in the second degree. A new trial was granted him, and at the next term of court, and on the ninth day of the court, he was again put on trial, and was convicted of murder in the second degree, and his punishment assessed at five years in the penitentiary. He made a motion for new trial, which was overruled by the court; to which ruling he excepted, and gave notice of appeal to this court.
The first error assigned is ‘ ‘ that the court erred in allowing the defendant to be put on trial without an arraignment, as provided by law, as of record is manifest (Trans., p. 5), whereby the defendant was denied the benefit of a special venire to select his jury from, and was limited in his challenges to ten, instead of twenty.” On the first trial the defendant was regularly arraigned, and pleaded not guilty. On the second trial he pleaded not guilty.
The Code of Criminal Procedure provides that there shall be no arraignment of a defendant, except upon an indictment for a capital offense. Pasc. Dig., art. 2933.
In capital cases the defendant shall be entitled to twenty peremptory challenges, and the State to ten, and where there are more defendants than one on trial, each defendant shall be entitled to twelve peremptory challenges, and the State to six, for each defendant. Ibid., art. 3037.
In prosecutions for felonies not capital, the defendant shall be entitled to ten peremptory challenges, and the State to five; and where more defendants than one are tried together, each defendant shall be entitled to six peremptory *448challenges, and the State to three, for each defendant. Ibid., art. 3038.
Our Criminal Code provides that “if the jury find any person guilty of murder, they shall also find, by their verdict, whether it is murder of the first or second degree.” Both on principle and the authority of adjudged cases, it is held that where one is indicted for murder, and is tried and convicted of murder in the second degree, and a new trial is granted, he cannot be legally tried upon the charge of murder in the first degree. Jones & Jones v. The State, 13 Texas, 168; Lopez v. The State, 2 Texas Ct. App. 204; The State v. Ross, 29 Mo. 32; Clem v. The State, 42 Ind. 420; Bremon v. The People, 15 Ill. 571; Hart v. The State, 25 Miss. 378; 4 Cal. 376; Bishop’s Cr. Law, sec. 850; also, 1 Bishop’s Cr. Proc., sec. 837.
Upon an examination of this question, the reader will find that the authorities are not uniform. We believe that the legal effect of the verdict of the jury in the first trial was to acquit the defendant of murder of the first degree; that this was no longer a capital felony charged against him, and that, in any subsequent trial, he was only entitled to ten peremptory challenges.
The fifth assignment of error is that “ the court erred in the fifth paragraph of the charge, wherein the jury were charged that the killing of a man is also justifiable in law when it occurs in the protection of the person against any unlawful and violent attack, of such a nature and character as to produce in the mind of the person killing a reasonable apprehension or fear of death, or great bodily injury that will likely produce death.” The counsel for the State insists that the whole charge of the court should be taken and construed together, and that it is, substantially, the law as laid down by the Code. ' The same fault is manifest in the ninth section of the charge of the court.
The seventh paragraph of the charge (although the word *449defendant” is used in. one place instead of “ deceased,” and this, perhaps, is the fault of the clerk in copying) may be said to correctly state the law. But it is succeeded in the ninth paragraph by the following instruction: “ If, from all the evidence in this case, the jury shall believe that at the time of the difficulty, and before the defendant drew his pistol, deceased did some act, at the time of the killing, from which defendant might reasonably infer that his life was in danger, or that he was in danger of great bodily injury that would likely produce death,” etc.
The charge of the court, taken as a whole, gave undue prominence to the idea that, before the defendant could justify the killing, it must appear that defendant killed Eaton to save his own life; when he would have been justified in killing Eaton if he had just ground to fear that he would suffer great bodily injury at the hands of Eaton, under the restrictions as laid down in article 2228, Paschal’s Digest. A reasonable apprehension of great bodily harm, or that life is in danger, will excuse a party for using all the necessary force to protect his person or his life; and it is not necessary that there should be actual danger, provided he acted on a reasonable apprehension of danger. Munden v. The State, 37 Texas, 353; Horbach v. The State, 43 Texas, 242; Plasters v. The State, 1 Texas Ct. App. 673; Lester v. The State, 3 Texas Ct. App. 17.
For this error in the charge of the court the judgment is reversed and the cause remanded.
Reversed and remanded.