
    KINNEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1912.
    On Motion for Rehearing, Feb. 28, 1912.)
    1. Criminal Law (§ 1064) — Appeal—Presentation of Grounds in Lower Court-Motion for New Trial.
    Under the express terms of Code Or. Proc. 1895, art. 723, as amended by Acts 25th Leg. c. 21, the court of Criminal Appeals cannot review instructions not excepted to during the trial, and not complained of in the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2683; Dec. Dig. § 1064.]
    2. Criminal Law (§ 1063) — Appeaia-Pres-ENTATION OF GROUNDS IN LOWER COURT— Motion for New Trial.
    Under Code Cr. Proc. 1895, art. 723, as amended by Acts 25th Leg. c. 21, which prohibits reversal of a conviction for error in the charge,- unless it was excepted to during the trial, or was complained of in the motion for new trial, objections raised by an amended motion for new trial, filed with permission of the trial court, are reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2673, 2676-2684; Dec. Dig. § 1063.]
    3. Criminal Law (§ 951) — New Trial — Motion — Amendment — allowance — Judicial Discretion. .
    Permitting the filing of an amended motion for new trial after expiration of the time for filing the original motion is discretionary with the trial judge.
    [Ed. Note. — For other cases, see Criminal Law, Cent.Dig. §§ 2349-2358; Dec.Dig. § 951.}
    4. Criminal Law (§ 1Q92) — Appeaia-Bill of Exceptions — Refusal—Effect.
    A bill of exceptions in the record, marked “refused” by tbe trial court, cannot be considered on appeal; a bystander’s bill being proper in such case.
    [Ed.- Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    5. Criminal Law (§ 598) — Continuance— Refusal-Lack of Diligence.
    Accused’s second application for a continuance, asked on the ground of absent testimony, was properly refused, where it appeared that he had not been diligent to obtain the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. |§ 1335-1341; Dec. Dig. § 598.]
    6. Criminal Law (§§ 368, 366) — Evidence-Res Gestas — Admissibility-.
    In a murder trial, witnesses were properly permitted to testify that immediately after the shooting a bystander said “You d — -d s- of a b-, what are you doing?” and that a few minutes later decedent asked one of the witnesses to “stop the blood,” and stated that he was bleeding to death, and that accused had told him he was going to kill him, but that he thought accused would wait until decedent got outside and “take a punch at him”; the testimony being admissible as part of the res gestee.
    [Ed. Note. — For other cases, see Criminal Law, 'Cent. Big. §§ 806, 812, 815, 821, 811, 814, 819, 820; Dec. Dig. §§ 368, 366.]
    7. Cbiminal Law (§ 417) — Evidence—Declarations of Third PERSONS — ADMISSIBILITY.
    In a murder trial, the state was properly permitted to show that before the killing accused’s companion attempted to borrow a weapon, stating that he had a friend who wanted to kill another, where the circumstances indicated that accused knew his companion was making the request, and was close enough to hear what he said, though accused testified he did not hear the conversation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]
    8. Witnesses (§ 287) — Examination—Redirect Examination oe Witnesses.
    One accused of murder having shown on cross-examination of a witness a conversation with decedent just before the homicide, the state was properly permitted on redirect to show the entire conversation.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1002; Dee. Dig. § 287.]
    9. Criminal Law (§§ 419, 420) — Evidence —Hearsay.
    In a murder trial, testimony that a third person told witness the day after the killing that he had delivered a pistol to decedent just before the homicide, and testimony as to other statements by the third person, was properly excluded as being hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    10. Criminal Law (§ 412) — Evidence—Declarations by Accused — Admissibility.
    Where' it appeared that accused killed decedent with a shotgun, testimony by him as to what he said to different persons, before any trouble with decedent, about going hunting was inadmissible; he having been permitted to show his preparations to go hunting.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 894-972; Dec. Dig. § 412.]
    11. Homicide (§ 250) — Manslaughter—Evidence — Sueeiciency.
    ■ -Evidence held insufficient to raise an issue of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    12. Homicide (§ 340) — Appeal — Harmless Error — Instructions.
    Any error in instructions on murder in the first degree is harmless, where the jury convicts in the second degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-720; Dec. Dig. § 340.]
    13. Homicide (§ 307) — Instructions.
    It was proper to instruct that if the jury believed, beyond reasonable doubt, that accused was guilty of murder, but had reasonable doubt whether it was upon express or implied malice, he should be given the benefit of the doubt, and be found guilty of no higher offense than murder in the second degree.
    [Eld. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    14. Criminal Law (§ 823) — Instructions— Sele-Deeense.
    Accused cannot complain of a sentence defining self-defense at the close of the charge on murder in the first degree, where an independent instruction on self-defense was correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823 ; Homicide, Cent. Dig. §§ 718, 719.]
    15. Criminal Law (§ 1090) — Review—Bill of Exceptions — Necessity. <
    Refusal to instruct the jury to disregard remarks, charged to have been made by the district attorney, is not reviewable where the trial court refused a bill of exceptions relating to the matter, and no bystanders’ bill was preserved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2818; Dec. Dig. § 1090.]
    16. Criminal Law (§ 823) — Instructions— Submission oe Issues.
    Any error in submitting an issue of provocation of the difficulty in a murder ease was harmless, even if the evidence did not raise the issue, where a full and complete charge on self-defense was given, and it appeared that, after becoming angry at decedent, accused went to different places, where he procured a gun and'ammunition, and returned to where he killed decedent.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823; Homicide, Cent. Dig. §§ 718, 719.)
    On Motion for Rehearing.
    17. Criminal Law (§ 1030) — Appeal—Objections in Lower Court.
    Objection first raised by motion for rehearing on appeal is too late, unless it presents fundamental error.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2619; Dee. Dig. § 1030.]
    18. Criminal Law (§ 1038) — Appeal—Objections in Lowe® Court — Instructions.
    Under Code Cr. Proc. 1895, art. 723, as amended by Acts 25th Leg. c. 21, which prohibits reversal of a conviction for error in a charge, unless it was pointed out at the trial or in the motion for new trial, an objection that an instruction was upon the weight of the evidence comes too late, when first raised in the motion for rehearing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig.. § 1038.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Frank Kinney was convicted of murder, and-he appeals.
    Affirmed.
    Woods, Graham & Harris and Green & Boyd, for appellant. Richard G. Maury, Dist. Atty., John E. Green, Jr., Asst. Dist. Atty., J. M. Gibson, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am-. Dig. Key No. Series & Ren’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with murder, and when tried was convicted of murder iñ the second degree, and his punishment assessed at 20 years confinement in the penitentiary.

There are a number of bills of exceptions in the record, some of which we cannot consider; the court rejecting them, stating as a reason for refusing them; “The bill is disapproved, for the reason that the supposed error mentioned therein has never been ealled to the attention of the court, either at the time of the trial or in the motion for a new trial, or in defendant’s amended motion for a new trial, and tlie question therein has never been raised in any way until this bill was presented for approval on the 22d day of May.” This was long after the motion for a new trial had been overruled, and long after the adjournment of court for the term. Article 723 of the Code of Criminal Procedure, as amended by Acts 25th Leg. e. 21, provides that the judgment shall not be reversed, unless the error in the charge was excepted to at the time of the trial, or be complained of in the motion for a new trial. No exception to the charge of the court was reserved at the time of the trial, and, the matter not being complained of in the motion for new trial, we are prohibited by law from considering this matter. This ruling applies to bills Nos. 14,15, and 19. However, those bills in which the court states the questions raised were not presented until presented in the amended motion for a new trial, although not excepted to at the time of the trial, bring the matter properly before us for review. The statute gives appellant the right to assign errors to the charge of the court in the motion for a new trial; and, while the questions raised were not contained in the original motion filed, yet the question of filing an amended motion after two days had elapsed was one of discretion, to be exercised by the trial judge, and, having granted permission to appellant to file an amended motion, all questions properly presented in this amended motion must be considered by this court. The reason that the statute requires that the supposed errors be excepted to and stated at the time, or in the motion for a new trial, is that the trial judge may have an opportunity to pass on all these questions; and if he is convinced that an error has been committed he can, by granting a new trial, avoid the expense and delay of an appeal. If all the matters are called to the attention of the trial judge pri- or to the time of overruling the motion for a new trial by proper bills of exception, or by grounds stated in the motion for a new trial, he is given an opportunity to pass on all questions thus raised, and it is made the duty of this court to pass on all questions thus presented; but, as hereinbefore stated, those issues which are presented for the first time in this court, and to which no exception was reserved at the time of trial, nor presented in the motion for new trial, the trial court had no opportunity to pass thereon, and the statute prohibits us from considering them on appeal.

Bills Nos. 21 and 22 are marked “refused” by the court, and should not be contained in the record. If the court refuses same, we must presume the matter did not occur, or no exception was reserved. The statute provides for bystanders’ bills if the court refuses a bill; and if the bill is refused, and no bystanders’ bill presented, no question is presented that we can review.

The court did not err in overruling.the application for a continuance. It appears that the witness Reed Tevis appeared and was not used by defendant. Diligence as to the other witnesses is not shown; this being the second application for a continuance. The contest filed to this application sets forth facts which show a total lack of diligence, and we must presume that the court properly exercised his discretion, especially as no process is attached to the application.

It appears from the state’s evidence that defendant and one Kerr had a row, and that deceased at that time cursed and used abusive language to defendant, and called him a coward about jumping on as small a man as Kerr. Defendant and Mr. Kuhlman were at the American Bar shortly after this, and defendant filled his pocket with cartridges. He did not get a gun there, as he says that Fisher had “soaked” the gun left there by Townsend; it being a sawed-off shotgun. Defendant and Kuhlman went from the American Bar to the Gombert Bar, when this conversation took place, according to Mr. Kahn. He says: “I was in Gombert’s Saloon on the night of the killing of Walter O’Brien. I saw the defendant, Frank Kinney, there. I also saw John Kuhlman there. I had a conversation with John Kuhlman first, and than afterwards both talked to me. * * * Len McFarlane, Alph Baker, and myself were just about to take a drink when John Kuhlman came in. He said, ‘Kahn, 1 want to see you a minute.’ I said, ‘We are taking a drink now, and if you want to see me, come on here, and when I am through I will talk to you.’ So he came up there, and I said, ‘What is it, John?’ And he said, ‘Have you got a shotgun?’ I said: ‘No; I have not. What do you want with a shotgun?’ He said, T have got a friend that wants to kill a damn son of a bitch,’ or words to that effect; and I said, ‘Well, if I did have one, you couldn’t get it for any such purpose as that.’ And I said, ‘Who is your friend?’ And he in a loud tone of voice, said, ‘Oh, Frank, come here,’ and about that time I saw Frank coming in from the outside through the screen door, and he came on up to where we were talking, and I said: ‘What’s the matter, Frank? Are you in trouble?’ And he said: ‘Yes, sir; Walter O’Brien jumped on me and abused me, and I be damned if I am going to stand for it.’ And I talked to them a few minutes, and finally agreed that Frank Kinney was going to whip Fisher, and John Kuhlman was going to whip Otto Meyer. They took a drink there and left, and that is all I know of it.” The witness Len McFarlane testified in substance to the same facts.

It appears from the state’s testimony that when defendant and Kuhlman left the Gom-bert Saloon they went to a telephone and called Wm. McBride, who testified that on the night of the homicide defendant called him over the telephone after 9 o’clock at night, and told him he wanted to borrow his (witness’) gun, as he was going hunting. He agreed to loan it to him, when defendant asked him to bring it to Charley Alios’ place of business. Witness says he took the gun to the place suggested, and there met defendant and John Kuhlman. He says he asked defendant where he was going to get shells, when defendant said he had a pocketful of them, and showed him some, when defendant and Kuhlman went off together. It is shown they took a street car and went near the place where deceased was working, and got off the car. From this time, the record does not disclose where Kuhlman went; but a witness, Mr. Hubbard, says he was going toward the saloon where deceased was at work, when defendant passed him with a gun in his hands, and before he got in the saloon he heard a gun fire. Witness Kerr says he was in the saloon with deceased and one Fisher, who is now dead, and he saw defendant throw the door open with one foot and raise the gun, when witness dropped to his hands; that the gun was first pointing towards him (witness), but defendant turned the gun towards deceased and fired; that deceased hollered “Hold” — was all he said— and fell behind the bar; that Fisher said, “You son of a bitch, what are you doing?” and as the gun fired he and Fisher both ran out of the house. Witness Pete says he was at work upstairs in the building when he heard the shot, and went downstairs at once, and went in the saloon. Deceased, who was lying behind the bar, flat on his back, re marked to him: “Pete, for Christ’s sake, stop the blood; I am bleeding to death” — ■ and he got a towel and wrapped his arm, when deceased said “defendant Kinney had told him he was going to kill him; but he thought defendant would wait until he got outside and take a punch at him.” Witness further testified that deceased had no weapons, and he saw none close to him. The doctor testifies this wound, which entered his right side and pierced his lungs, was the cause of death.

By proper bills, defendant objected to the witnesses Kahn and McFarlane testifying to what Kuhlman said, objected to the witness Kerr being permitted to state what Fisher said at the time of the shooting, and objected to witness Pete being permitted to state what deceased said to him when he entered .the saloon. The statements of Fisher and Pete were admissible as res gestee. They are virtually part and’ parcel of the transaction. The remark of Fisher was made as the shot was fired, as was the remark of deceased, and is a part of the event; was addressed to the defendant. He must have heard it and made no reply. Witness Pete shows he was the first person to deceased, and only a few minutes had transpired from the shooting until the statement was made. For authorities, see section 1236, White’s Penal Code, section 10S5, White’s Code of Criminal Procedure, and section 339, Branch’s Criminal Law.

In regard to the conversation testified to by Kahn and McFarlane, defendant denies hearing it; but the facts and circumstances introduced by the state, that he had gone to the American Bar in search of a gun, and filled his pocket .with cartridges, that Kuhl-man and defendant started to Gombert’s Saloon together, Kuhlman saying he could get a gun from Kahn, that, when Kahn asked him who it was wanted the gun, Kuhlman said, “Oh, Frank, come here,” when defendant came in the door and told witness that deceased had jumped on him and abused him, and he be damned if he was going to stand it! That when they left there they got a gun from McBride, and defendant went straight to the place of deceased and shot him. These facts would indicate that defendant knew Kuhlman was going to ask Kahn for the gun, and was close enough to hear what Kuhlman said, because he took up the conversation, and said deceased had cursed and abused him, and he was not going to stand it.

In regard to this testimony, the court instructed the jury: “If you believe from the evidence, beyond a reasonable doubt, that the defendant and John Kuhlman agreed between themselves, or conspired together, to kill Walter O’Brien, and that in pursuance thereof defendant killed him, then I charge you that any act or declaration of John Kuhlman in furtherance of said common purpose done or said by him in the absence of the defendant, and which may have been introduced in evidence in this case, is legal evidence in this ease against defendant, and may be considered by you in finding your verdict; but, if the evidence fails to satisfy you, beyond a reasonable doubt, that such agreement or conspiracy existed, then such acts or declarations of John Kuhlman, done or said in the absence of the defendant, are not legal evidence in this case against the defendant, and you will give them no consideration whatever, but will wholly disregard them in finding your verdict in this case.”

The evidence would authorize this charge. Deceased said defendant and Kuhlman were together when he had the words with defendant about the witness Kerr; they were together at the American Bar when defendant filled his pocket with cartridges; they left there together and went to Gombert’s Saloon, where Kuhlman said he wanted a gun for a friend who wanted to kill a son of a bitch, and was in such close proximity that Kuhlman called him to appear, and by his conversation indicated he was the friend for whom Kuhlman wanted the gun; they leave there together and go to Alios’ and get the gun from McBride; they return together to a point near where deceased is shot, when defendant steps in the saloon and kills O’Brien. Under this charge the jury was instructed to ignore the remarks of Kuhl-man, even though the jury might have believed, under the evidence, he heard them, unless they believed they were acting" together. This was as favorable as could have been desired.

Neither was there error in permitting the witness Kerr to detail the entire conversation had with deceased just before the homicide on redirect examination. The defendant, on cross-examination, had developed that a conversation was had, and elicited such portions as he desired. The state was then entitled to let the jury hear all that was said that involved this defendant, that they might intelligently pass on the matter.

It appears that on the evening of the killing Fisher had borrowed a pistol from J. W. Oliver, and defendant offered to prove by Oliver that Fisher had told him the day subsequent to the killing that he (Fisher) had delivered the pistol to deceased just a short time before the homicide. He also desired to prove by the witness other statements of Fisher, and that he (witness), in obedience to the statement of Fisher, had gone to look for the pistol. The witness testified he had never seen the pistol since he loaned it to Fisher, and did not know what had become of it. The statements of Fisher would be hearsay, pure and simple, and the court did not err in excluding this testimony.

Defendant in a bill states he desired to testify that he had told a number of people (naming them) that he was going hunting prior to any trouble, either with Kerr or deceased, on that day. The court, in approving the bill, says: “This bill is approved with the explanation that the question asked by defendant was: Go ahead and tell the jury what you said about going hunting and who you talked to, giving their names and the different parties around town that you talked to about going hunting that day. The court sustained the objection to this question; but the court did not exclude any testimony showing preparation to go .hunting.” What he might have said to the different parties would not have been admissible, and, as qualified by the court, the bill presents no error.

There was no error in the court failing to submit a charge on manslaughter. As hereinbefore stated, it was shown on behalf of the state that defendant became angry at the remarks of deceased, and went to one saloon in search of a gun, and filled his pocket with cartridges. He then went to another saloon, where Kuhlman tried to borrow a gun for a friend to kill a man, and defendant said it was deceased he was angry with. Failing to get a gun at this place, Kuhlman and defendant got a gun from McBride, when defendant returns to the saloon, and kills deceased. This would raise no issue but murder. Defendant testified he was going hunting, and Fisher was going with him; that he was hunting Fisher, and, seeing him in the saloon, he went in and asked Fisher if he was ready to go, and when he asked that question deceased made an insulting remark, and, as he thought, reached for a pistol, when he shot him; that heshot deceased to save his own life. This presented self-defense. There is nothing in the record showing sudden rage, resentment, or terror, accompanied by adequate cause to reduce the offense to manslaughter.

The paragraph complaining of the charge on express malice and other parts of the charge, presenting murder in the first degree, present no error. The jury found the defendant guilty of murder in the second degree only, and it is the rule of this court that error in the charge on' murder in the first degree, if error there be, would be immaterial error.

Neither was there error in the court instructing the jury that, if they believed, beyond a reasonable doubt, that defendant was guilty of murder, yet, if they had a reasonable doubt whether it was upon express or implied malice, they would give the defendant the benefit of such doubt, and find him guilty of no higher grade of offense than murder in the second degree.

The criticism of one sentence of the court’s charge upon self-defense is not a fair criticism of the charge. This sentence complained of appears wherein the court is defining self-defense at the close of the charge on murder in the first degree, and does not appear in the charge on self-defense proper, and when the court applied the law of self-defense to this case the sentence complained of does not appear; but such charge is a full and fair presentation of the issue as made by the evidence.

The defendant excepted to the failure of the court to give a special instruction, instructing the jury to ignore certain remarks alleged to have been made by the district attorney. This charge relates to matters in the bill which the court refused, and, as the court refused the bill of exceptions, the presumption must be indulged that the district attorney did not use the remarks, or the court would have approved the bill. If the language was used, and the court refused the bill, the defendant should have proven up his bill, as provided by the statute.

The appellant complains that the court in his charge submitted the issue of provoking the difficulty, and it is very questionable if this issue is raised by the evidence. If there is no evidence raising this issue, it is hardly conceivable that this charge could have resulted in injury to defendant. The court very fairly submitted the issue of self-defense, and as fully as defendant’s evidence called for, and the evidence raising the issue of provoking the difficulty, this issue was properly presented by the charge. State’s counsel earnestly insists that defendant, by his conduct in going to defendant’s place of business, when he had testified that deceased had cursed him, and he had told Kahn he would be damned if he was going to stand it, and then going and getting a gun, in the light of deceased’s statement that appellant had told him (deceased) that he was going to kill, fairly raises this issue. In the case of Godwin v. State, 39 Tex. Cr. R. 408, 46 S. W. 226, this court held that, although the court committed error in giving a charge on provoking the difficulty, the evidence not raising that issue, yet, under the evidence in that case, it was not such error as would he ground for reversal of the case. And in this case we have grave doubt that the issue of provoking the difficulty is in the case; but we are firmly of the opinion that, even though it should be held that no such issue is in the case, under the evidence in this case, such charge as given by the court was not calculated to and did not impair the rights of defendant, and, under the provisions of our Code of Criminal Procedure, it would not be ground for reversal of the case.

Judgment affirmed.

On Motion for Rehearing.

This case was affirmed on a former day of this term, and appellant has filed a motion for rehearing, presenting but two grounds, ably arguing them both. In the second ground, he presents a question not raised by the motion for new trial filed in the lower court, and to which no assignment was made in any bill of exceptions. In fact, it was not presented in the brief of counsel filed in this court on the original hearing, but is urged for the first time in his motion for rehearing filed herein. This is too late to point out errors in the charge of the court, unless it presents fundamental error. That a certain portion of a paragraph of a charge of the court might properly be construed to be upon the weight to be given the testimony, if it were considered at all by the jury, does not present fundamental error, and for us to review a charge in this respect it must have been excepted to at the time of the trial on that ground, or the error must have been called attention to in the motion for new trial. Article 723 of the Code of Criminal Procedure provides that this court shall not reverse a case on account of an error in the charge, unless it is pointed out by an exception at the time of the trial, or in the motion for a new trial. Appellant having done neither, we cannot review the matter set up in the second ground of the motion for rehearing, and will not pass thereon.

' In the first ground of the motion for rehearing, appellant earnestly insists that the evidence did not authorize a charge on provoking the difficulty, and the court erred in so charging in the following paragraph: “I further charge you that if you believe from the evidence, beyond a reasonable doubt, that the defendant sought the meeting with deceased for the purpose of slaying deceased, and, having found him, did some act, or used some language, or did both, with intent to produce the occasion and bring on the difficulty, and that the same, under the circumstances, was or were reasonably calculated to provoke a difficulty, and on such account the deceased attacked him, and he then killed deceased in pursuance of his original design, then the defendant cannot justify on the ground of self-defense, but such killing would be murder of one of the degrees; but if defendant had no such purpose in seeking the fatal meeting, or, having it, did not act reasonably calculated to provoke the difficulty, and was attacked by the deceased, then his right of self-defense would not be forfeited, and he could stand his ground- and defend himself by the use of such means of defense as the facts and circumstances indicated to be necessary to protect himself 'from danger, or what reasonably appeared to him at the time to be danger.”

Appellant admits that the court gave a full, fair, and complete charge on self-defense, and to which he assigned no error; but he says that the evidence did not raise the issue of provoking the difficulty, as presented in the above charge, and that in giving this charge it was an unwarranted limitation on his right of self-defense; appellant, in his brief, saying: “In the opinion in this case, the court uses this language: ‘The court very fairly submitted the issue of self-defense.’ From this we understand that the court is of the opinion that self-defense was raised. There is no intimation in the opinion that such issue was not fully presented by the evidence. We further notice, after discussing the Godwin Case, the court uses the following language: ‘And in this case we have grave doubt that the issue of provoking the difficulty is in the case; but we are firmly of the opinion that, even though it should be held that no such issue is in the case, under the evidence in this case, such charge as given by the court was not calculated to and did not impair the rights of defendant, and, under the provisions of our Code of Criminal Procedure, it would not be ground for reversal of the case.’ Will it be written down as an opinion of this honorable court, whose judgment is final, whose opinions fix the rule for our guidance in the trial of criminal cases, that where the issue of self-defense is presented, and that of provoking a difficulty is not, that the submission of such issue is harmless?” No; counsel in this case, or in any other case, cannot take it as the opinion of this court that where the issue of self-defense is presented, and that of provoking the difficulty is not, that the submission of such issue is harmless. We decide every ease upon the evidence of that case, and in some cases, as in this one, it will be held to be harmless, while in other cases it would be material and reversible error. The cases presented by appellant present that view, and present it admirably, and if counsel would read the evidence in those cases he would see wherein they vary materially from the case he is here presenting, and why the decisions he quotes are not applicable to this case, nor authority for holding that such a charge in this case would present reversible error. This court has always held that the law must be submitted as applicable to the facts in the case on trial, and has held that where it was contended that a defendant, under the evidence, has forfeited or abridged his right of self-defense, that consideration must be addressed to the nature and quality of the wrongful acts by which it is claimed the right of self-defense is abridged, and the adjudicated cases in this state hold among the slayer’s acts which abridge his right of self-defense are the following: First, devices, by language or otherwise, to provoke the deceased to make an assault which will furnish a pretext. Second, provocation of the deceased into a quarrel, causing the fatal affray, when the intent is discernible from all the evidence. Third, preconcert with deceased to fight him with deadly weapons, or mutual combat. Fourth, commencing an attack, assault, or battery upon the deceased. And, fifth, going with a deadly weapon where the deceased is, after an altercation, and by some act then done showing an intention to ■engage in a deadly combat, even though the ■deceased may be guilty of such overt act. See Cartwright v. State, 14 Tex. App. 486; Cunningham v. State, 17 Tex. App. 89; Jones v. State, 17 Tex. App. 602; Allen v. State, 24 Tex. App. 216, 6 S. W. 187; Ball v. State, 29 Tex. App. 107, 14 S. W. 1012; Milrainey v. State, 33 Tex. Cr. R. 577, 28 S. W. 537; Thumm v. State, 24 Tex. App. 667, 7 S. W. 236; Meuly v. State, 26 Tex. App. 274, 9 S. W. 563, 8 Am. St. Rep. 477; Bonnard v. State, 25 Tex. App. 173, 7 S. W. 862, 8 Am. St. Rep. 431; Johnson v. State, 26 Tex. App. 631, 10 S. W. 235; Levy v. State, 28 Tex. App. 203, 12 S. W. 596, 19 Am. St. Rep. 826; Carter v. State, 30 Tex. Cr. R. 551, 17 S. W. 1102, 28 Am. St. Rep. 944; Polk v. State, 30 Tex. Cr. R. 657, 18 S. W. 466; Sullivan v. State, 31 Tex. Cr. R. 486, 20 S. W. 927, 37 Am. St. Rep. 826; Jackson v. State, 32 Tex. Cr. R. 192, 22 S. W. 831; Powell v. State, 32 Tex. Cr. R. 230, 22 S. W. 637; Mathis v. State, 34 Tex. Cr. R. 39, 28 S. W. 817; Burris v. State, 34 Tex. Cr. R. 387, 30 S. W. 785; Plew v. State, 35 S. W. 366. Other eases might be cited laying down these rules.

The defendant himself testified that he and Fisher and Meyer went into 'the saloon where deceased was at work, and that deceased had cursed him as being a G-d d-d dirty cowardly s-n of a b-h about the way defendant had treated Duke Kerr, and that deceased had told him; “I am going to get you. I am fixed all the time.” That he left this saloon and went to the American Bar, where he filled his pockets with cartridges. That he learned the gun Mr. Townsend had left at the American Bar — a “sawed-off shotgun” — had been “soaked” by Fisher, when Kuhlman said, “I think I can get a gun from Mr. Kahn,” when he went to Gombert’s Saloon, where the conversation took place copied in the original opinion, wherein the remark was made that they wanted the gun’ to kill “a d-d s-n of a b-h,” etc.; the full text being copied in the original opinion. When they failed to get a gun from Kahn, William McBride was phoned, and his gun was secured, when appellant went direct to the place where deceased was employed, and the killing took place, being an assassination according to the state’s testimony; the defendant in his testimony presenting a theory which called for a charge on self-defense. Under this state of the record, wherein it is shown that defendant became angry at the remarks of deceased, goes off and fills his pockets with shotgun shells, secures a shotgun, and returns to the place of the difficulty, after the remark has been made that the gun is wanted to- kill a s-n of a b-h, the deceased being shown to be the man who is talked about, such a charge as herein given would not present reversible error, where a full and complete charge on self-defense is given.

Motion for rehearing is overruled.  