
    BENNETT v. STATE.
    (No. 7208.)
    (Court of Criminal Appeals of Texas.
    April 18, 1923.
    Rehearing Denied June 27, 1923.)
    1. Homicide <&wkey;171 (2)—Physical conditions of scene of homicide detailed by sheriff properly received.
    Where sheriff reached deceased a few moments after he was shot and found him unconscious, the surrounding physical conditions detailed by the sheriff were properly received as tending to throw light on the transaction and reveal its 'nature.
    2. Criminal law &wkey;>l 169(9)— Error in admitting sheriff’s unauthorized opinion as to defendant’s being behind deceased at time of shooting held harmless.
    Where no other conclusion could be reached from the evidence describing deceased’s wounds and other physical conditions than that deceased was shot from behind, evidence of the sheriff, who reached deceased a few moments after the shooting, that the party who inflicted the wound was bound to have been behind deceased, while error, was harmless.
    3. Homicide <&wkey;l 12(1)—That one seeking another against whom he has grievance is armed not necessarily a provocation.
    One may seek another against whom he has a grievance, and the fact that he arms •himself is not necessarily a provocation placing him in the wrong.
    4. Jury <&wkey;72(I)—Refusing defendant’s motion to summon talesmen from special venire for week held proper.
    In a murder prosecution, when a special venire was exhausted, it was proper to authorize the sheriff to summon' talesmen, and there was no error in refusing defendant’s motion to call the men from the venire for the week.
    5. Jury <&wkey;72(6)— Overruling motion to disqualify sheriff from summoning jury held authorized.
    Where, in a homicide prosecution, eleven jurors had been selected, and the only facts relied on by defendant to disqualify the sheriff from summoning talesmen was an admission by the sheriff that he had given state’s counsel the benefit of his judgment as to men on the venire list, and that he conceived it to be his duty to work for the state, and the talesmen summoned were eligible, overruling the motion was not improper.
    6. Criminal law <&wkey;596 (I) — Denying continuance for absent witness whose testimony was oumulative held not an abuse of discretion^
    In a murder prosecution, where defense made a second application for continuance to secure testimony to the effect that deceased had made threats to kill defendant, and that this had been communicated to him, and there was diligence with reference to but one witness whose testimony was of a similar nature to that stated at trial, denial of continuance was not error.
    On Motion for Rehearing.
    7. Criminal law @=>917(2) — Denial of new trial for absent witness whose testimony was cumulative not an abuse of discretion.
    Where an uncontroverted proposition involved in a case has been supported by abundant testimony, it is not an abuse of discretion to deny a new trial sought in part on the refusal of a continuance to secure absent witness to give testimony substantially cumulative of facts testified to before the jury. v
    8. Criminal Iáw <&wkey;l 169(9) — Nature of doctor’s testimony as to deceased’s position when shot held not such as precluded correction of error in admitting it.
    In a murder prosecution, where the evidence showed that deceased was shot from behind, testimony of a doctor that, from the character of the wound, at the time deceased was shot he was in an easy, normal, or comfortable position, while inadmissible, was not error calling for reversal.
    9. Homicide <&wkey;-I7l(l) — Evidence of finding of shotgun shells on course taken by defendant after killing held admissible.
    Where defendant was alleged to have killed deceased with a 12-gauge shotgun, evidence that early the next morning after the homicide a witness found three 12-gauge shotgun shells at a place where it was shown by other testimony defendant had passed along the preceding night, and after the shooting, was admissible as a circumstance showing defendant to have been in possession of more shells than the one placed in the gun, and had weight in determining his deadly purpose.
    10. Homicide <&wkey;300(7) — Law of provoking difficulty properly submitted.
    In a murder prosecution, where evidence showed that defendant took his shotgun and went to the place where he knew deceased would be, and shot him from behind, there was no error in submitting the law of provoking a difficulty.
    Appeal from District Court, Camp County; R. T. Wilkinson, Judge.
    Roy Bennett was convicted of murder, and he appeals.
    Affirmed.
    B. F. Crosby, of 'Greenville, Florence, Florence & McClelland, of Gilmer, and C. G. Engledow, J. D. Bass, and J. A. Guest, all of Pittsburg, for appellant.
    Beavers & Mansell, of Winnsboro, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for murder; punishment fixed at confinement in the penitentiary for a period of 25 years.

Appellant shot and killed the deceased Muh rein. From the testimony of the appellant, it appears that there had been ill will between himself and the deceased of long standing; that the deceased had accused him of various criminal offenses and had frequently used abusive language towards him; that, according to the. information possessed by him, the deceased had on more "than one occasion threatened to kill the appellant. Many witnesses for both the state and appellant testified to their unfriendly relations. Immediately before the homicide, he had a conversation with his wife, and taking a gun with him he went at night to the courthouse, where the deceased stayed, for the purpose of demanding that deceased refrain from further hostile conduct. What occurred is thus described by the appellant:

“I went in at that door into Mulrein’s office. As I entered that door, I spoke to Mulrein; I called his name — I called him ‘Mul’; when I spoke t.o him, that was what I always called him. I always said it just as I spoke to him then. When I entered the room and said ‘Mul,’ he was sitting about like Judge Bevers is there and he looked back towards me. I guess he saw me. I did not hear anything but ‘son of a bitch’ and he kind of dropped his paper from him with his hand and reached back beside the table. I thought he reached under the table. When he reached under the table, I shot him one time.”

In his cross-examination, appellant stated that he knew that Mulrein had been working at the courthouse for quite a while and that he would be found there; that he had sent friends to see Mulrein for the purpose of inducing him to refrain from further abuse and had received reports that, unless he wanted to kill or be killed by Mulrein, he had better stay away from him.

There were prosecutions for felonies pending against the appellant, and he had been informed that Mulrein had declared that he intended to assist in the prosecution.

Appellant had been in town all day, and after dark had a conversation with his wife' in which she told him she had gotten some money from the deceased and would get money from him again unless the appellant would give it to her; that deceased told her'that she ought to get a divorce, as the appellant was not good enough for her. He did not have the least suspicion and did not claim that there was any improper intimacy between the deceased and the wife of the appellant, but that the information received made him angry. He borrowed a shotgun, which he said he first got for thfe purpose of hunting. After he drove to town, he decided to go and see Mulrein. Appellant said further:

“When. I saw him in there by the table I concluded to go and see him. My gun was not loaded then, but I loaded it as I walked to the door. When I got in there, he was sitting by the table reading a newspaper. I got inside the door, but not on the inside of the office. * * * I don’t know just what my position was, whether nearer the center of the door or not. I guess I had my gun down by my side. I don’t know how I was carrying the gun. * * * I guess I was six or eight feet from him. All that I heard him say was ‘son of a bitch,’ and dropped his right hand. I did not see anything on the table. I did not see, any pistol around there. I thought he put his hand under the table by the side. I had the shotgun in my right hand. I think I had the gun in both hands when I shot. He dropped his hand before I raised the gun. When I stepped in the door, he had a newspaper in a position as though he was reading it, and I think he had it with both hands when I appeared there with the shotgun. I did not take aim at him when I fired. I did not shoot at the back of his head; I just shot; I threw up the gun and fired. When he dropped his hand, I thought he was after a gun. X shot Mulrein because I thought he was going to kill me. * * * X did not wait to see whether there were any drawers under the table or not. * * * If he had not dropped his hand, I would not have shot him. * * * I did not appear there pleasantly, * * * but I spoke to him pleasantly. I was not in a good humor. I did not think my appearance there with a gun would cause him to make any demonstration; I just carried that gun for my own protection. I did not know that he would expect trouble if I went there with that double-barrel shotgun. I had been- warned to stay away from Mulrein if I did not want to kill him or be killed. Mulrein was sitting down at the time I shot. I don’t think his feet were on the table. * * * His feet nor legs were not upon the table. I guess he had that paper in his left hand when I shot, but I don’t know. I figured that he had it in his left hand. As quick as I fired, I turned and walked out.
“X am 39 years old and weigh 240 pounds. I am strong and stout. I did not want to kill him. I had no thought of killing him. I just shot when he reached down: I shot at him. I did not shoot at the back of his head. X don’t know whether he was reading that paper when I went in there or not. * * * I just went off and left him there that way without telling anybody.”

The sheriff reached the deceased a few moments after he was shot, and found him living, but unconscious. The witness described what he saw. There was a large wound about four inches long and two or three inches wide. It entered under the right ear and extended down under the chin and removed a little of the chin bone on the right side. The wound was made with shots from a shotgun. There was a pool of blood near the table in the room, and a stream of blood on the floor between the table and the place where the deceased was leaning against a partition wall about 30 feet distant. There was also blood where the deceased was found. There was one shot. found in the left leg of the deceased apparently ranging downward. In the partition wall, about 12 feet south of the chair, there were six or seven shots. The chair was sitting in a line between these shots and the door. The shots extended down to the baseboard; some of them about 2 feet above it. Fragments of paper were found in the wall, as well as small pieces of paper between the chair and the wall. A newspaper With a number of shot holes through it and blood upon it was also found about 6 feet from the back of the chair. The physical conditions detailed by the sheriff were properly received. They tended to throw light upon the transaction and to reveal its nature. Cyc. of Law & Proc. vol. 21, p. 938; Rocha v. State, 43 Tex. Cr. R. 169, 63 S. W. 1018; Thompson v. State, 33 Tex. Cr. R. 217, 26 S. W. 198.

The witness testified:

/“That from the location of the chair in which-the deceased was sitting at the- time he was-shot and from the location of the shot in a partition wall in which there was found blood, flesh, and pieces of paper, that the party who inflicted the wound was bound to have been behind the deceased and near the east side of the door that was directly fyehind the deceased! at the time of the shooting.”

This was an unauthorized opinion, and the objection which was urged against it should have been sustained. The relative position of the parties to the homicide was not a matter to be settled by the opinions-of the witnesses. Williams v. State, 30 Tex. App. 429, 17 S. W. 1071; Blain v. State, 33 Tex. Cr. R. 246, 26 S. W. 63; Pearson v. State, 56 Tex. Cr. R. 612, 120 S. W. 1004; Brown v. State, 55 Ark. 599, 18 S. W. 1052; Branch’s Ann. Tex. P. C. § 131.

Considering the testimony of Mr. Brice, the sheriff, it remains only to be considered whether, in the light of the facts before the-jury, the error in admitting the testimony was harmful. If the improper evidence tended to solve no controverted issue against the appellant, or if it was but cumulative of other like testimony received without objection, its receipt would not authorize a reversal of the judgment. Coyle v. State,. 31 Tex. Cr. R. 607, 21 S. W. 765; McCormick v. State, 52 Tex. Cr. R. 496, 108 S. W. 669; Steagald v. State, 24 Tex. App. 214, 5 S. W. 853; Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169.

The only eyewitness was the appellant, and an analysis of his testimony fails to impress ns with the view that there is any material conflict between the appellant’s evidence and that embraced in the objectionable opinion testimony of the sheriff. The opinion was that the deceased was shot from behind. No other conclusion could be reached from the undisputed testimony describing the wounds and other physical conditions. Appellant’s testimony, if we properly comprehend it, does not conflict with this theory, but supports it.

The deceased was an unmarried man. He did some plumbing work outside, but was employed as janitor at the courthouse and tmade his headquarters there. At the time he was shot, he was sitting in a chair with a newspaper in his hand, under a light and at a table in the treasurer’s office, where he generally stayed. This office was in the southwest corner of the courthouse. Appellant entered at the west door of the courthouse and was traveling east. Mulrein was south of him to his right. Appellant entered the door on his right going into the treasurer’s office. There was a table about 6 feet long and extending north and south, about 3 or 4 feet from this door. The north end of the table was abeut 3 or 4 feet from the door and opposite this entrance. A light was swinging over the table, and there was a chair sitting under the light on the east side of the table and near it. One sitting in the chair would have had the light over and to the right of him. The back of the chair was slightly angling towards the door. It is obvious from this recital of the physical facts and appellant’s admission that when the shot was fired he was standing in the door or near it and that the deceased was sitting in a chair by the table, and leaves no question but that the shot was fired from the rear of the deceased. The sheriff’s testimony detailing the location and the character of the wound, the blood upon the floor, and the range of the shots are but confirmatory of the appellant’s testimony that when the shot was fired the deceased was sitting in a chair with a newspaper in his hand and that appellant was standing in the door which was in the rear of the deceased.

Dr. Winn reached the deceased 5 or 10 minutes after he was shot. While he was still, breathing, he was probably unconscious. The witness testified that he saw blood on the table and on the floor near the table, and a stream of blood on the floor from the chair to a place at which the deceased was found; that he observed imprints of shots which had entered the south partition wall, and a newspaper with blood upon it and holes shot through it.

The deceased was a spare man and weighed about 160 pounds and was much older than the appellant. The back edge of the wound was immediately under the ear on the right side and tore that side of the neck, breaking the jawbone between the neck and the chin. The other end of the wound was a little left of the center of the neck. The wound was an inch or inch and a half up and down, and about three inches long and about three-fourths of an inch deep. It was a fatal wound. It did not necessarily immediately produce unconsciousness. The loss of blood killed the deceased. The entrance of the wound was clearly distinguishable from the exit by the smoothness at the point of entry and the ragged fragments at the point of exit. The witness used this expression:

“From the character of that wound, I say that the fire came from behind Mulrein.”

One of the bills of exceptions is addressed to additional testimony of Dr. Winn, namely, that at the time deceased was shot he “was in an easy, normal, or comfortable position;” also this:

“On the character of the wound. If his head had been this way (indicating down and to the right), he evidently would have taken more of his jaw away, and the neck would have at least been partially obliterated. If the head had been this way (indicating to the left and up), the shot would have not gone so far under the chin. If his head had been back or up, it would not have hit his jaw bone.”

This testimony that deceased was in an easy, normal or comfortable position was not admissible. See Williams v. State, 30 Tex. App. 429, 17 S. W. 1071; Powdrill v. State, 62 Tex. Cr. R. 442, 138 S. W. 114; Branch’s Ann. Tex. P. C. § 131. However, the court withdrew all the last-quoted testimony and instructed the jury not to consider it. The rule touching the withdrawal of improper evidence is stated in Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836, and Deckerd v. State, 88 Tex. Cr. R. 132, 225 S. W. 166. Applying it to the instant case, the view is entertained that, considered in the light of the other facts, the nature of the testimony was not such as precluded the correction of the error in admitting it.

On the facts, the case of Coyle v. State, 31 Tex. Cr. R. 607, 21 S. W. 765, is much like the instant ease. Coyle shot and killed one Page. A doctor testified for the state and said that—

“He was of the opinion, from the appearance of the wound and the clothing, that at the time the shot was fired the right arm of the deceased was hanging at his side, slightly to the rear of a perpendicular line.”

Judge Davidson, in writing the opinion affirming the case, states' the facts in substance thus: In the evening preceding the homicide, hot words passed between Page and the appellant. Page replied to the appellant in insulting epithets. They were separated by friends. Appellant was told by a mutual friend of his and of the deceased that the design was to hill him, and the deceased was prepared to do so if he came to town. Later a mutual friend endeavored to conciliate the parties and told the appellant that the deceased would apologize and sign the note from which the difficulty originated. Coyle’s testimony, quoted in the opinion, reads thus:

“After supper I took up my gun, and on the way to town loaded it, putting two cartridges in it.- I went with my gun to the drug store. It was closed; no lights in it. I saw a light from the back door of the saloon, and started there. I went there. I had no idea who was in there. I did not expect to meet Page. I supposed he had gone home. I stepped into the door with both feet. Heard some one say, ‘Look out, Ben.’ I had my gun under my arm. Without changing position, I said, ‘Ben Page, you called me a son of a bitch; I want you to apologize for it.’ His reply was by a shot from his pistol. The ball struck me in the shoulder, making a slight wound. I then fired without raising my gun to my shoulder. I had my gun cocked before I reached the saloon.”

We quote the conclusion of the court thus:

“This evidence refutes the idea of self-defense, and constitutes the killing murder, at least of the second degree. He provoked the difficulty, which he knew, or should have known, would end in the ’ death of himself or of the deceased. He knew deceased to be a dangerous man, and always went armed. He approached and entered the house with his loaded gun cocked, and ready for immediate use, evidently with the purpose of using it if his demands were not complied with. It was in a shooting position before he reached the door. Under this state of the case, it is wholly immaterial what was the position of the deceased’s arm at the time defendant fired. He made it necessary for Page to defend himself against a ready-cocked and presented gun. The opinion of the witness, under such circumstances, could not have injured him. Steagald v. State, 24 Tex. Ct. App. 207. The state’s evidence shows, by all the witnesses, that defendant entered-the house with his gun cocked and presented, and said to deceased, ‘Ben Page, you called me a “son of a bitch”’; demanded no apology, but fired at once before deceased drew his pistol, but as he was in the act of drawing it from his waistband, which act threw his right arm back of a perpendicular line, as was testified by one of the witnesses.”

It is true that, one may seek another against whom he has a grievance, and the fact that he arms himself is not necessarily a provocation placing him in the wrong. Shannon v. State, 35 Tex. Cr. Rep. 6, 28 S. W. 687, 60 Am. St. Rep. 17; Branch’s Crim. Law, § 442. In the instant case, however, the long-standing enmity between the parties and the circumstances under which the appellant presented himself, and the time and place selected by him for the interview, were such as to bring him practically upon a parallel with the facts before the court in the case of Coyle v. State, supra, in which this court held that the facts were such as repelled the idea of self-defense. In the instant case the court submitted the issue of self-defense to the i jury. Obviously, if the deceased made any demonstration, it was responsive to the conduct of the appellant. At the time that appellant appeared, the deceased was sitting alone in his office and quietly reading a newspaper. This the appellant knew. If, in fact, acting upon the manner, the conduct, the words, and the circumstances under which the appellant appeared, the deceased made a demonstration,, the jury was permitted, in an appropriate charge of the court, to determine whether the appellant’s conduct was reasonably calculated to provoke the demonstration, and whether it was provoked in order to furnish a pretext for killing the deceased. In deciding the issue, the jury was not restricted to the words of the appellant, but the antecedent relations of the appellant and deceased and the circumstances immediately attending the tragedy were to be taken into account. Tate v. State, 35 Tex. Cr. R. 231, 33 S. W. 121; Hollman v. State, 87 Tex. Cr. R. 576, 223 S. W. 206. The presence of the issue of self-defense is not so clear as to render incurable the evidence of Dr. Winn improperly received. The .testimony of the sheriff complained of but revealed the obvious fact, which was undisputed, that the deceased was shot from behind, and this-was proved, moreover, by other testimony admitted without objection. If the issue of self-defense was in the case, it was qualified by the issue of provoking the difficulty. There was no error in submitting the law of provoking the difficulty.

When the special venire was exhausted, it was proper for the court to authorize the sheriff to summon talesmen and he did not err in refusing appellant’s motion to call the men from the venire for the week. Code of Crim. Proc. art. 667; Weathersby v. State, 29. Tex. App. 278, 15 S. W. 823; Mays v. State, 50 Tex. Cr. R. 165, 96 S. W. 329; Williams v. State, 60 Tex. Cr. R. 453, 132 S. W. 345. Eleven jurors had been selected when the special venire list was exhausted. Two peremptory challenges remained for the appellant.

Appellant filed a motion to disqualify the sheriff from summoning talesmen. In support of the motion, the sheriff was called as a witness and disclaimed any prejudice or interest in the case, and stated that he had no recollection of haying made any remark to the effect that he would have summoned jurors favorable to the state; that, if any such remark had been made,, it was jocular and not serious; and that he acted with entire impartially in summoning the men who appeared as talesmen. Appellant challenged the array so far as the talesmen summoned affected it, and upon this the sheriff also testified. No other evidence was adduced. We are not prepared to say that the trial court was not warranted, upon the evidence produced, in overruling the motion. There was but one juror to select. The talesmen summoned, so far as .the record reveals, were eligible in every respect. But seven were summoned, of which two were stricken by the state. The only facts relied upon by the appellant are the admission by the sheriff that he had given state’s counsel the benefit of his judgment as to the men on the venire list, and that he stated that he conceived it to be his duty to work for the state.

A second or subsequent application for a continuance was made to secure the testimony to the effect that the deceased had made threats to kill the appellant, and that this had been communicated to him. There was, diligence'with reference to but one of the witnesses, and he would have testified, according to the averments of the motion, that the deceased had said that he “was going to send the appellant to the penitentiary or to hell.” While not this remark, others of a similar nature, and many of them, were proved upon the trial, both from the witnesses of the appellant and of the state. The bitter feeling between the appellant and the deceased, the fact that the deceased was threatening to interpose and aid in the prosecutions which yere then pending against the appellant, the fact that he said that he would be glad if the appellant was hung, that he used bitter and abusive language towards the appellant on many occasions was undisputed ; and, in view of this condition and the other facts in the record, we think the trial court did not abuse its discretion in concluding that the testimony of the absent witness on another trial would not produce a different result.

Other questions raised have been considered. They relate in part to evidence which is cumulative on an uncontroverted issue, and in part to self-serving declarations of the appellant.

No error has been presented or perceived which, in the opinion of this court, demands a reversal of the judgment. It is therefore affirmed.

On Motion for Behearing.

LATTIMORE, J.

That deceased was intensely hostile toward appellant appears in the record without dispute, and that he had made threats to do him all sorts of harm, extending from sending him to hell or to the penitentiary down to getting even with him, also appears without dispute. These threats were both communicated and uncommunieat-ed. We think our former opinion correct in holding it not error to refuse a third application for continuance to procure witnesses to testify to threats and abusive language. It seems well settled that, where a proposition involved in a case has been supported by abundant testimony and is in no wise controverted, it is not an abuse of the discretion confided in the trial judge to deny a new trial sought in part upon the refusal of a continuance to secure absent witnesses to give testimony substantially cumulative of the facts testified to before the jury. All of our decisions are to the effect that, unless it appears reasonably sure that the absent testimony would have brought about a different result, it is not error to refuse the new trial.

From all the testimony in this case— that of sheriff Brice, that of Dr. Winn, and of appellant himself — it would appear reasonably certain that the shot fired by appellant was from the rear, or nearly so, of deceased. Much of the testimony on this point is set out in the original opinion in discussing appellant’s bill of exceptions No. 6, which presents complaint that sheriff Brice was allowed to testify, in substance, that, from the location of the chair in which deceased was sitting, and of the flesh, paper, and shot holes in the wall beyond deceased, the person shooting was bound to have been behind deceased and near the west side of the door. The position of the chair with its back towards the door was in testimony. The.fact of the shot holes in the walls south of said chair, in which shot holes were bits of flesh and paper, and the fact that the door was north from said chair, were all in testimony, and not controverted. The sheriff had testified without seeming objection that a line drawn from the shot holes, etc., in the wall past the chair would go near the west side of the door, in which appellant admitted himself to be standing at the time he fired the fatal shot. On original presentation we held this statement of the sheriff to be an opinion, and that it should not have been admitted; but we could not bring ourselves to believe that it was a hurtful opinion, inasmuch as it seemed to coincide so entirely with the other facts. We find nothing in appellant’s testimony which in any way suggests that when he shot deceased he was not behind him; hut, on the contrary, we observe that he testified, when he stepped up to the door of the room in which deceased was sitting reading and spoke to him, that deceased “looked back at him” ; nor does the testimony of appellant that when deceased saw him he dropped his hand toward the table by which he was sitting, justify the conclusion that this in any way placed deceased in a strained, abnormal, or uncomfortable position. Appellant said that deceased was sitting in said chair when he fired, and that after he fired and until he walked away from the door deceased remained sitting in the chair. The mere fact of dropping his hand toward a table or under the table did not apparently, according to the testimony of appellant himself, change the position of the body of deceased. These facts being, true, we think it correctly held in the original opinion that the testimony of Dr. Winn as to the fact that, from the character of the wound that went through the neck, jaw, and chin of deceased, he was in a normal, easy, and comfortable position , when shot, should not reverse the case. We are required by the statute to familiarize, ourselves with the statement of facts in every case, and are justified in trying to ascertain the possible injury of matters complained of in a bill of exceptions, in resorting to what appears- otherwise in the record. Dr. Winn had given a demonstration to the jury by moving his head from one side to the other and holding it up and backwards, etc., of what could not have been the position of the head of deceased at the time of the shooting. The jury could see these matters of demonstration to an extent which cannot be fully set out in the statement of facts. The doctor was a physician of experience and would appear to have been trying to reproduce as nearly as he could to the jury the impression that was made upon his mind by an examination .of the wounds in the head and neck of deceased. While we did say in the original opinion that this statement was such an opinion as should not have been allowed, still said testimony was not far removed from the rule laid down by many authorities in this state that, when one is attempting to reproduce an effect produced on his mind by a situation which cannot be reproduced or made palpable in the concrete, he may give his opinion. See Branch’s Annotated P. O. § 131, for collation of authorities. The language used by the doctor in expressing the impression produced on his mind by what he saw, may be complained of as going too far'; but, as stated by us already, it would not seem to be contradictory to any testimony given on behalf of the accused. It would appear that one versed in anatomy might easily tell from an examination of a wound which had penetrated muscles of the body that said muscles were strained or relaxed; that they were bent or pulled to one side or the other, or like testimony. It would not appear to us to be an error for which a case should be reversed, that the language selected by the witness in which to express his opinion might be such as would justify complaint, unless it also appeared that the language used or the statement made was susceptible of harmful effect. Judge Hurt in Steagald v. State, 24 Tex. App. 213, 55 S. W. 854, passed upon a much less admissible opinion and announced a rule seemingly applicable as follows:

“Upon the trial the state propounded this question to Dr. Ferris: ‘What in your opinion, from the examination you made of the body, as to how the injuries you saw, to wit, the arm broken, the neck broken and the skull crushed, was done?’ This question was objected to by appellant, because ‘it called for the opinion of the witness as an individual, and not as an expert; was mere speculation on the part of the witness, and was matter about which the jury were as competent to judge as the witness.’ The objection being overruled, the witness answered: T am of opinion that the only way it could have been done, or the only way I can imagine, is that the party put the infant on its face, and placed his boot heel on the back of the head, and caught hold of the right arm and pulled it, and stamped on the back of the head, crushing the skull and breaking the neck and arm.’ ‘Witness Ferris also stated that this opinion was not as an expert, but as ap, individual, and the injuries might have been inflicted in many other ways.’
“The objection should have been sustained upon the grounds urged. Incompetent, however, as it clearly was, did the opinion of the witness, as to the manner in which the injuries were inflicted, operate to the injury of appellant’s rights? Do the facts stated in the opinion of the witness tend to establish the corpus delicti. That is to say, that the child met its death, after being born alive, at the hands of some person by violence? They certainly do; but was not this completely and conclusively established by competent evidence, independent of Dr. Ferris’s opinion. * * *
“Now, we believe that if it be possible to establish any fact conclusively, the fact of the corpus delicti, that is, that the child was born alive and came to its death by violence, this fact is so established in this case. And, conceding that the opinion of Dr. Ferris tended to prove the corpus delicti, since there could not be a rational doubt as to this, the opinion could not have injured appellant’s rights.”

There appears no error in the admission of testimony of the fact that early the next morning after the homicide a witness found three new 12-gauge shotgun shells near a telephone post in front of a store where it is shown by other testimony appellant had passed along the preceding night, and after the shooting. Appellant used a 12-gauge shotgun in killing deceased. Ha claimed that, when he drove his car up near the courthouse just before the shooting, he got one shell out of his hunting coat pocket in the car and loaded the gun before going to the courthouse where deceased was. The shooting occurred about 9 or 10 o’clock at night. The shells were found about 7 o’clock the next morning. The finding of the new shells of the size used by appellant, and at a place where he had passed along on the night of the homicide, might be taken as a circumstance showing him to have been in possession of more shells than the one placed in his gun, and thus may have weight in determining his deadly purpose in going to the courthouse.

Nor have we been ahle to conclude, in the face of all the testimony, that the court erred ih submitting the law of provoking a difficulty. Whether appellant was an avowed enemy of deceased or not, he knew, according to his own testimony, that deceased entertained bitter enmity toward' him. According to the defensive testimony, the wife of appellant told him a few moments before the hilling that deceased had let her have money, and thereupon appellant left and went at once to where deceased was, taking a shotgun with him, which he loaded after getting out of his car near the courthouse. Appellant admits that he was mad. He saw deceased sitting inside his own office reading. He admits that he took his gun, loaded it, walked into the courthouse, went to the door of the office of deceased, said “Mul” and almost immediately shot deceased, who was sitting in the chair, and who never got up or attempted to get up from the chair, or made any move to advance upon appellant; the only things'attributed to deceased by appellant himself being that he said, “You son of a bitch,” and dropped his hand toward or under a common table about three feet high near which deceased was sitting. Appellant saw no weapon on the table, under the table, in or near the hands of deceased; in fact it was shown there was no weapon about the table, though this fact was not known to appellant. The paper which deceased was reading was not even dropped, but was shot full of holes. The left leg of deceased was penetrated by one shot, which ranged downward, a. most significant fact in view of the testimony of witnesses who had been to the office of deceased shortly before the shooting and said that he was sitting in the chair reading with one or both feet up against the table. Appellant said he went to the courthouse to get deceased to desist from his abuse of him. This may have been true; but his choice of a time to go, his going alone, armed, mad, were very unfortunate. His conduct immediately after the shooting in fleeing from the courthouse, as told by Sheriff Brice, his act in putting the recently discharged gun in his father’s room, his return to the immediate vicinity of the homicide, his remarks and conduct while there — all doubtless had weight with the jury in determining their solution of the case against him.

Believing a correct conclusion was reached by us in our original opinion, the motion for rehearing will be overruled. 
      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <gz^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     