
    LEE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 10, 1912.
    On Motion for Rehearing, June 19, 1912.)
    1. Criminal Law (§ 193%) — Former Jeopardy — Subsequent Trial por Lesser Op-penses.
    Defendant, indicted for murder in the first degree and convicted of murder in the second degree, after a reversal of that judgment, could not be again tried for murder in the first degree, but could be tried again on tbe indictment for murder in the second degree and lesser offenses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 366, 387, 389, 394; Dec. Dig. § 193%.]
    2. Juey (§ 58) — Drawing Jury — Jury Wheel Law — Constitutionality.
    Jury Wheel Law (Acts 30th Leg. c. 139), which provides that the keys for the jury wheel shall be kept by the sheriff and the district clerk, and that the clerk and the sheriff shall draw from the wheel the names of jurors, and that when a special trial is ordered the clerk shall draw from the wheel the names required, is constitutional.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 266; Dec. Dig. § 58.]
    3. Criminal Law (§ 1171) — Appeaj>—Harmless Error — Conduct oe Trial.
    In a trial for murder, where the district attorney, after having been told that certain pictures were not admissible, offered them in evidence, but the jury were not permitted to see them, his conduct was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    4. Witnesses (§ 363) — Impeachment—Bias or III Feeling.
    The bias, prejudice, or state of feeling of a witness toward a person on trial may be shown.
    [Ed. Note.- — For other cases, see Witnesses, Cent. Dig. §§ 1177, 1178, 1181; Dec. Dig. § 363.]
    5. Criminal Law (§§ 419, 420) — Evidence-Hearsay.
    Where defendant, in a trial for murder, testified that he was knocked down by deceased and lost his watch and had been informed that a certain person had picked it up and brought it to the police station, and the chief of police testified that such person had brought accused’s watch to him and delivered it, evidence as to what the finder said to the chief of police at the time he delivered the watch was hearsay and not admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    6. Criminal Law (§ 1153) — Trial—Reception oe Evidence.
    In a trial for murder, permitting a witness for the state, after defendant had testified, to reiterate in rebuttal a part of his testimony on a material point, was not such gross abuse of the trial court’s discretion as to require a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066; Dec. Dig. § 1153.]
    7. Criminal Law (§ 730) — Appeal—Argument oe Counsel.
    In a trial for murder, the district attorney said that he hoped that his right hand would shiver at his side before he would ever ask a jury to convict a man when the evidence did not show his guilt, never, never, and that he dismissed whenever he had no evidence to convict a ease. Held that, considered with the court’s verbal instruction that the jury could not consider such remark, it was not error.
    [Ed. Note. — For other’ cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    8. Criminal Law (§ 720%) — Trial — Remarks oe District Attorney.
    In a trial fcir murder, after a remark of the district attorney had been withdrawn from the jury, his statement, that never in any case would he submit to the jury a case where the evidence did not justify a conviction, was unobjectionable. ,
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1677; Dec. Dig. § 720%.]
    9. Homicide (§ 340) — Triai^Instructions —Manslaughter.
    In a trial for murder, where the charge on manslaughter was that approved on a former appeal, with the addition that an assault and battery, a blow inflicted by deceased causing pain to defendant, was adequate cause for manslaughter, the additional instruction was without injury where defendant was convicted only of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715, 717, 720; Dec. Dig. § 340.]
    10. Homicide (§ 300) — Trial—Instruction on Sele-Deeense.
    Where defendant in a trial for murder testified that deceased knocked a third person down, and_ on remonstrance by defendant, knocked him down, advanced toward him, threw his hand behind him, and said, “I will just kill you,” and that defendant then fired one shot, got to his feet, and fired two more, thinking that deceased was going to kill him, an instruction that a reasonable apprehension of death or great bodily harm will excuse one in using all necessary force to protect his life or person, and that in such case the party acting under such real or apparent danger was not bound to retreat in order to avoid killing his assailant, and that if deceased, when killed by defendant, had made, or was making, an attack with a weapon calculated to produce death or bodily harm, defendant was not guilty, and that in determining the question the facts and circumstances should be considered as they appeared to defendánt at the time, was proper.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. § 300.]
    On Motion for Rehearing.
    11. Homicide (§ 169) — Admissibility oe Evidence — Quarrel Between Defendant and Third Person.
    Defendant’s quarrel with a third person just previous to his killing of deceased was admissible as showing the condition of his mind and the circumstances that led up to the killing.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. §§ 341-350; Dec. Dig. § 169.]
    12. Witnesses (§ 255*) — Examination—Refreshing Memory.
    ■ Where a witness for the state said that he did not remember, the district attorney might refresh his memory by showing him his testimony at a former trial.
    [Ed. Note. — For other cases, see Witnesses, Gent. Dig. §§ 874-890; Dec. Dig. § 255.]
    13. Criminal Law (§ 853*) — Conduct oe Trial — Discussion About Admissible Evidence.
    Where evidence is properly admissible, a discussion in the presence of the jury about admitting it is not error.
    [Ed. Note. — For other cases, see Criminal. Law, Cent. Dig. §§ 1459, 1535, 1591, 1592, 1730, 2010; Dec. Dig. § 853.]
    14. Homicide (§ 269) — Trial—Instructions —Self-Defense.
    Where the statute makes a certain thing adequate cause for manslaughter or defines the existence of certain conditions to be adequate cause, and the facts show the existence of such conditions at the time of the question, the issue of adequate cause must be submitted to the jury.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 563; Dec. Dig. § 269.]
    15.. Homicide (§ 309) — Manslaughter—Evidence— Instructions.
    Where accused testified that, just before the shooting, deceased, on accused’s verbal remonstrance for some act, knocked accused down, advanced on him, threw his hand behind him, and said that he would kill him, and accused as he was getting up fired one shot and two more after he had gotten to his feet, that the blow hurt when struck and for a couple of days afterwards and knocked the breath out of defendant and dazed him, an instruction that an assault and battery, a blow inflicted by deceased upon defendant causing pain or any condition creating sudden passion, was adequate cause for manslaughter, and that if defendant, in a sudden passion arising from an adequate cause, as the same has been herein-before explained, and not in defense of himself, killed deceased, he was guilty of manslaughter, was a proper application of the law to the facts.
    [Ed. Note. — Por other cases, see Homicide, Gent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    16. Homicide (§ 300) — Self-Defense—Instructions — Attack bx Deceased.
    In a trial for murder, where accused testified that deceased had knocked him down, advanced toward him, threw his hand behind him, and said he would kill him, an instruction on self-defense, that if deceased had attacked or was about to attack accused, was not objectionable because not predicated upon a demonstration from which it reasonably appeared to defendant that his life was in danger.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. § 300.]
    17. Criminal Law (§ 778) — Trial — Instructions — Burden of Proof.
    Such charge on self-defense, in addition to the charge on presumption of innocence and reasonable doubt, immediately followed by a charge that in all criminal cases the burden of proof is on the state, was not objectionable as shifting the burden on defendant.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1960, 1967; Dec. Dig. § 778.]
    18. Homicide (§ 300) — Trial—Instructions -Self-Defense — Burden of Proof.
    Nor was such charge objectionable on the ground that it might have caused the jury to infer that they should judge of the transaction from what the after developments disclosed to be the real facts.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    19. Homicide (§ 300) — Instructions — Threats.
    In a trial for murder, where the whole is-_ sue of self-defense was contested, and defend-’ ant, the only witness thereto, testified that deceased had knocked him down, advanced on him, and put his hand to his hip pocket and said he would kill him, an instruction on threats was properly given.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    20. I-Iomioide (§ 300) — Evidence—Relative Age and Strength of Parties.
    Where defendant, in a trial for murder, testified that he had known deceased a number of years, that deceased had been drinking and was quarrelsome and was in very bad humor after a quarrel at a dance, that he saw him pull his pistol out and strike tbe counter at two different times before the shooting and also knock a third person down, that he then knocked accused down and threatened to kill him, an instruction on self-defense, allowing the jury to proceed on the relative strength and size of the parties and the defendant’s knowledge of the character of deceased, was not objectionable.
    [Ed. Note. — Por other cases, see ■ Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    21. Criminal Law (§ 1180) — Appeal—Subsequent Appeal — Law of the Case.
    Where the trial court follows a decision on a former appeal on the second trial of that identical case, the same question will not be reviewed again unless it was shown that some injury resulted to defendant by following such decision.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 3002-3004; Dee. Dig. § 1180.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Henry Lee was convicted of manslaughter, and he appeals.
    Affirmed.
    B. T. Branch and S. B. Ehrenwerth, both of Houston, for appellant. Richard G. Mau-ry, Dist. Atty., of Houston, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   HARPER, J.

Appellant was indicted for murder, tried and convicted of the offense of manslaughter, and his punishment assessed at five years’ confinement in the penitentiary.

This is the second appeal in this case; the opinion of this court on the former appeal being reported in 54 Tex. Cr. R. 382, 113 S. W. 301.

1. Appellant in this case insists that the indictment charging him with murder in the first degree, and on the former trial having been convicted of murder in the second degree, which judgment was by this court reversed, he could not be again tried under that indictment. It is true appellant could not be again tried for murder in the first degree; but having been convicted on the former trial of murder in the second degree, and the verdict on his application having been set aside, he could again be tried on the indictment for murder in the second degree, and lesser offenses.

2. Appellant, by motion to quash the jury panel, and in his motion for new trial, again insists that the “jury wheel law” as passed by the Legislature in 1907 (Acts 30th Leg. c. 139) is unconstitutional. The law since the trial of this case by act of the Legislature has been amended so as to meet all the objections made by appellant in his brief, and, inasmuch as this question cannot again arise, we do not discuss nor pass thereon. In the former opinion of this court in this case the law was upheld, and it relating solely to a question of practice in the selection of a jury, and appellant does not state nor insist that other than a fair and impartial jury was obtained, in deference to the opinion of the court on the former appeal, we think it proper to follow that decision. If appellant showed or attempted to show he had been deprived of any right, or the jury, selected in the mode and manner it was, was biased or prejudiced against him, or that a different result might have been obtained had the jury been selected in another manner, we would investigate the question. Appellant has filed an able brief on the question of the constitutionality of the provisions of that law; but inasmuch as the trial court, in the selection of the jury, followed the decision of this court on the former appeal, we will not review the question in this case.

3. The facts are sufficiently stated in the opinion on the former appeal in this case, and we do not deem it necessary to restate them, except in so far as it may be necessary to discuss the questions raised in the motion for new trial.

It appears that the district attorney, by questions propounded to the witness Frank Casey, sought to elicit that appellant, just a few moments prior to this difficulty, had a difficulty with Mr. Haney. The court sustained the objection of appellant, and the matter, as recited in the bill, presents no error.

4. It also appears that the state’s attorney, after having been told certain pictures were not admissible in evidence, offered them in evidence; the objection of appellant being sustained. As the jury was not permitted to see the pictures, no harm could have resulted to appellant.

5. While defendant was on the witness stand testifying, on cross-examination, he was asked if he knew the state’s witnesses Casey and Harmon, and if they were on friendly terms with him, to which defendant answered they were. The bias, prejudice, or state of feelings of a witness towards a person on trial is always permitted to be shown. Pope v. State, 143 S. W. 611, and cases cited.

6. Appellant testified that he was knocked down by deceased, and lost his watch, and he had been informed that Briggs Chumley had picked it up and brought it to the police station. Chief of Police Ray testified that Chumley had brought appellant’s watch to him and delivered it. Appellant then sought to prove what Chumley said to Ray at the time he delivered the watch. This would be hearsay and not admissible.

7. It is also complained that Henry Harmon, who had been, used as a witness by the state in making its ease, after defendant had testified, in rebuttal was permitted to reiterate a portion of his testimony on a material point. This is hardly proper practice; but it is a matter within the discretion of the trial court, and only in a case of a gross abuse of this discretion would we be authorized to reverse a case on that account.

8. Appellant reserved a bill of exceptions to the following remarks of the district attorney:" “In the closing argument of the district attorney he argued to the jury as follows: ‘Gentlemen of the jury, after having done my duty, and after I impress upon you the facts in each case, in order that I may aid you, I hope that my right hand may shiver at my side before I will ever ask a jury to convict a man when the evidence does not show he is guilty. Never! Never! Gentlemen! Gentlemen! I dismiss then whenever I have not evidence to convict in a ease.’ To which argument the defendant objected because it was improper for counsel to express his personal opinion and throw into the scales of justice arguments like that as his belief, to which the state’s counsel then stated, T stated that unless I believed from the evidence in a particular case, * * *’ to which defendant stated that was his objection, and thereupon, at the request of the district attorney, the court verbally instructed the jury not to consider his remarks and the state’s counsel then turned and stated to the jury: T will repeat the statement as I thought I had made it; that never in any case will I submit to the jury a ease where the evidence does not justify a conviction, never in any case will I submit it to the jury, unless the evidence justifies it. * * * This presents no error, as the court instructed the jury not to consider the first remarks made, and the latter remarks are unobjectionable.

9. In several paragraphs of the motion for a new trial appellant criticises the charge of the court on manslaughter. The charge is a virtual copy of the charge given by the court and quoted in the former appeal of this case, with the addition there suggested s the court in this charge instructing the jury: “The following are deemed adequate causes: An assault and battery; that is, a blow or lick inflicted by deceased causing pain to defendant.” The charge as given was approved with that exception, and we do not deem it necessary to discuss this matter further. The jury only found appellant guilty of manslaughter on this trial, and certainly appellant suffered' no injury in that respect.

10. On the question of self-defense the court instructed the jury: “A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If from the evidence you believe the defendant killed the said James S. Simpson, but further believe that at the time of so doing the deceased had made or was making an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, coupled with the threats of deceased at the time (if any), caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on defendant, and if the weapon used by him and the manner of its use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant. In determining whether the defendant acted in what reasonably appeared to him to be his necessary self-defense, it is the duty of the jury to look at the transaction from what you believe from the evidence was the standpoint of the defendant at the time, and consider the same in the light of the facts and circumstances, as you believe they appeared to the defendant at the time, and not from any other standpoint; but it is for the jury to determine from the evidence what were the appearances to the defendant, and what the standpoint of the defendant was, and in what light he did in fact view the facts and circumstances at the time.”

The only witness testifying who raised the issue of self-defense was defendant, and he testified: “Mr. Simpson (the deceased) knocked Ghumley down, and I stepped up to him and said, ‘Jim, don’t do that,’ and he hauled away and knocked me down. After hitting me and knocking me down, he advanced on me and throwed his hand behind him and said, T will just kill you, you son of a bitch,’ and as I was getting up I fired one shot and jumped to my feet and fired two more shots. I thought he was going to shoot —was going to kill me.”

The charge above fully presented the issue of self-defense as made by this testimony, and, as the state’s testimony would show that the killing took place entirely under different conditions, the judgment is affirmed.

On Motion for Rehearing.

This case was affirmed at a former day of this term, and appellant has filed a motion for rehearing. We do not like to write at length on a case of this character; but owing to the earnest insistence of appellant’s counsel, in whom we have the greatest confidence as to his legal ability, we will again treat each ground in the motion, and more at length.

In the first bill it is shown that, while the witness Frank Casey was testifying, the state propounded the following questions, and the following proceedings had; “State whether or not there was a difficulty between Mr. Lee and Mr. Haney? The Court: I don’t see how that is material at this stage of the game. State: The condition is, to show the condition of the defendant’s mind and all the circumstances that led up to the tragedy. Mr. Casey has testified in this case three times before, once at an examining trial, and twice, on two occasions, and has on each time recited some incidents that connected him on down the line, and he is certainly now for some reason or the other forgetting about it, for some cause, in view of that situation, I— Court: The proposition is, you want to show a difficulty between the defendant and some other person in the absence of deceased. State: They were all there together at the time. Court: As far as the testimony is now, this witness says he don’t know. I don’t know only from what the witness says. I don’t think at this time it is material. State: Mr. Casey has forgotten all about it since three days ago, about a week ago. Court: That is a matter the court cannot regulate.”

It will be seen that the district attorney stated he expected to prove that defendant was present and recited incidents that connected him on down the line with this difficulty; that the witness had so testified on former occasions; that this was offered to show the condition of defendant’s mind, and circumstances that led up to the tragedy in which deceased lost his life. If the district attorney could have made this proof, he should have been permitted to do so, and the court erred in excluding it. If the witness stated he did not remember, the district attorney should have been permitted to refresh his memory, by showing him the testimony at the former trial, for no man can read the testimony of the witness without being convinced that on this trial he is antagonistic to the state. And as the testimony was properly admissible, a discussion about admitting it in the presence of the jury would not be error; but, if error was committed, it was error against the state and not defendant. In Branch’s Criminal Law, the rule is thus laid down: “AVhen extraneous crime, or other transaction, is res gestse, or tends to show intent when intent is an issue, or tends to connect the defendant with the offense for which he is on trial, it is admissible” — citing Gilbraith v. State, 41 Tex. 567; Long v. State, 11 Tex. App. 387; Davison v. State, 12 Tex. App. 215; McCall v. State, 14 Tex. App. 362; Holmes v. State, 20 Tex. App. 518; Harwell v. State, 22 Tex. App. 252, 2 S. W. 606; Kelley v. State, 31 Tex. Cr. R. 211, 20 S. W. 365; Hamilton v. State, 24 S. W. 32; Sisk v. State, 42 S. W. 986; Fielder v. State, 40 Tex. Cr. R. 184, 49 S. W. 376; Stanfield v. State, 43 Tex. Cr. R. 10, 62 S. W. 917; Glover v. State, 76 S. W. 465; Lynne v. State, 53 Tex. Cr. R. 377, 111 S. W. 729; Penrice v. State, 105 S. W. 797; Bonners v. State, 35 S. W. 650; House v. State, 16 Tex. App. 32.

• One who reads the record in this ease learns that appellant and deceased came in the saloon together a short time before the killing. Both were policemen of the city of Houston. The witness says: “There were two other young men came in with them when they came in the saloon. I remember Haney; he was with them when they came in, and they all had a drink together.” It was a difficulty between appellant and Haney that occurred just a few minutes prior to the killing of Simpson by appellant that the state desired to prove, and the district attorney says he desired to do so to prove circumstances that led up to the killing. If the circumstanceá (from the state’s standpoint) of the difficulty between Haney and appellant led up to the killing of Simpson, it was admissible as res gestae of the transaction, as tending to show the motive of appellant, his state of mind, etc. The scene just prior to and just subsequent to a homicide may be depicted by witnesses that the jury may get a clear view of the transaction, and thus be enabled to more intelligently pass on the evidence, when such testimony sheds light on the transaction, or tends to ■show intent or motive.

Appellant insists that we erred in holding that there was no error in the charge on manslaughter, and refers us to the case of Smith v. State, 148 S. W. 699, decided on .Tune 5th by this court. In that case we held that, “wherever the statute makes a certain thing adequate cause, or certain conditions existed that is defined to be adequate cause, and the facts show the existence of it at the time of the difficulty, this must be submitted to the jury.” This is a correct proposition of law, and if in this case this was not done, it would be error; but we could hardly see how it would be prejudicial error, as the defendant was only found guilty of manslaughter. However, in this case this was done.

In this case, what was relied on to .reduce the offense to manslaughter? Defendant testified: “Just before the shooting, Mr. Simpson (the deceased) knocked this fellow Ohumley down, and I stepped up to him, and I said, ‘Jim, don’t do that,’ and he hauled away and knocked me down. After hitting me and knocking me down, he advanced to me, and throwed his hand behind him and said, T will just kill you, you son of a bitch,’ and as I was getting up I fired one shot and jumped to my feet and fired two more shots. The blow that he struck me struck me right in the lower part of the breastbone and hurt me for a couple of days afterwards. When he struck me he hurt me. At the time he struck me it just knocked the breath out of me and dazed me.” Upon that state of facts the court charged the jury, in charging the law of manslaughter: “The following are deemed adequate causes: An assault and battery-; that is, a blow or lick inflicted by the deceased upon defendant causing pain to defendant. And any condition or circum-. stance which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection, whether accompanied by bodily pain or not, is deemed adequate cause. And where.there are several causes to arouse passion, although no one of them alone might constitute adequate cause, it is for you to determine whether or not all such causes combined might be sufficient to do so. * * * Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant with a deadly weapon in a sudden passion arising from an adequate cause, as the samie has been herein-before explained, and not in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, with intent to kill, did, in the county of Harris and state of Texas, on the 4th day of March, 1908, as alleged, shoot and thereby kill said James S. Simpson as charged in the indictment, you will find the defendant guilty of manslaughter and assess his punishment at confinement in- the penitentiary for not less than two nor more than five years.”

How a more direct application of the law to the facts could be given we fail to see. The defendant testified to a blow causing pain. The statute says a blow causing pain shall be deemed adequate cause. The court tells the jury that a blow or lick inflicted by the deceased upon defendant causing pain to defendant would be adequate cause. Then tells the jury: “Now, if you believe from the evidence beyond a reasonable doubt that the defendant with a deadly weapon in a sudden passion, arising from an adequate cause, as the same has been herein-before explained, etc., you will find the defendant guilty of manslaughter.” This is, strictly within the rule of law as announced in the Smith Case, and in accordance with all the decisions of this court. See Branch’s. Criminal Law, § 512, and eases there cited,

Appellant insists that the court erred in his charge on self-defense wherein he charged the jury “that if deceased had attacked or was about to attack him,” etc., claiming that the court should have charged that if deceased made a “demonstration from which it reasonably appeared to defendant that his life was in danger,” etc., he should be acquitted. The cases cited by appellant correctly state the law as applicable to the facts in those eases, but in this case appellant testifies deceased “hauled away and knocked him down, advanced toward him,- and throwed his hand behind him, and said T will just kill you, you son of a bitch.’ ” If this was not an “attack” instead of a “demonstration,” we do not know the meaning of the word. If one knocks another down, it seems to us he has made an attack, and when the court charged the jury that, if deceased “had made an attack or was making an attack on him which, coupled with the threats of deceased at the time, caused him to have a reasonable apprehension of death or serious bodily injury to acquit,” it seems to us the court aptly applied the law to the evidence, and the criticism is hypercritical. Mr. Branch, in his work on Criminal Law, says it is not error to restrict the right of self-defense to an actual attack, if the only theory of self-defense presented by the evidence is an actual attack, and the danger, if danger there was, was patent and real to defendant, citing Renfro v. State, 42 Tex. Cr. R. 394, 56 S. W. 1013, wherein it was held: “On a trial for murder, where there was no testimony presenting other character of danger than an immediate intention on the part of deceased to do defendant bodily harm, and the court fully charged the law of self-defense as applicable to the facts, there was no error to refuse a special instruction on apparent danger.” For other authorities, see Branch’s Criminal Law, § 446. In this ease the court charged the jury if deceased had made an attack or was about to make an attack, and there was no evidence raising any other theory. Simmons v. State, 55 Tex. Cr. R. 448, 117 S. W. 141, and cases cited.

The charge does not group any facts and require the jury to believe all of them, but applies the law to the facts as testified to by defendant. Defendant had testified that deceased knocked him down and said, “I will kill you, you son of a bitch.” The court tells the jury that if deceased had made an attack or was about to make an attack, coupled with the threats of deceased at the time, etc., this was a direct application of the law of defendant, whose testimony alone raised the issue of self-defense.

The next criticism is that the charge on self-defense shifts the burden of proof and places it on defendant. He cites us to the eases of Stuart v. State, 57 Tex. Cr. R. 593, 124 S. W. 656, and Castro v. State, 146 S. W. 554. We do not think the charge in this case is subject to the criticism for, in addition to the charge on presumption of innocence and reasonable doubt, the court, immediately following and virtually as a part of the law of self-defense, instructed the jury, “In all criminal cases the burden of proof is on the state.” In the Castro and Stuart Cases this part of the charge seems not to have been given, and the Stuart Case holds, even with this omitted, that in the absence of a requested charge no reversible error would be presented. As does the Simmons Case, 55 Tex. Cr. R. 448, 117 S. W. 141. In speaking of a charge of this character, Judge Willson, in the case of Powell v. State, 2S Tex. App. 398, 13 S. W. 601, said: “With respect to the charge on threats and self-defense, the objection is urged that it requires the jury to TteUeve that the facts existed which constituted self-defense before they could acquit defendant, whereas the law is that, if they entertained a reasonable doubt of the existence of such facts, they should acquit him. In this ease the court charged the rule of reasonable doubt generally, making it applicable to the whole case, and under repeated decisions of this court this was sufficient.” Where the court, in connection with the charge on self-defense, instructs the jury specifically that in all criminal cases the burden of proof is on the state, it is inconceivable that the jury should have been misled, and the burden of proof is not shifted. Had the court so instructed the jury in the Stuart and Castro Cases, as well as giving the charge on reasonable doubt on the whole ease, it would not and could not have been said that the burden of proof was shifted. See, also, McCullough v. State, 23 Tex. App. 636, 5 S. W. 175; Edens v. State, 41 Tex. Cr. R. 524, 55 S. W. 815, and cases cited in Overcash v. State, 148 S. W. 701, decided at this term of court.

The charge is not subject to the criticism that it may have caused the jury to infer that they should judge of the cransaetion from what the after developments disclosed to be the real facts. The charge is unlike that cited in the Simmons Case, 55 Tex. Cr. R. 449, 117 S. W. 141, in that it adds , to that charge “and consider the same in the light of the facts and circumstances as they appeared to the defendant at the time, and not from any other standpoint, and it was for the jury to determine what were the appearances to defendant, and in what light he did in fact view the facts and circumstances at the time.” This latter clause shows that the facts must be viewed from the standpoint at the very time of the homicide as it appeared to defendant at the time of the homicide, and from no other standpoint. No man could draw any other conclusion.

The criticism that the court erred in charging on “threats,” in that it was a disputed fact, is rather hypercritical. The whole issue of self-defense was a contested issue, and the only witness that testifies to facts raising the issue of self-defense, in the same breath that he tells of defendant knocking him down and advancing on him, also tells of the threat. If a jury believed one, they believed all, for the same man that testifies to one testifies to the other as a part of the same transaction, and there could be no question if one was true the other was not also true. The way the court charged in regard to the threat was favorable to defendant, in that the witness said he knocked him down, advanced on him, put his hand to his hip pocket, and said, “I will just kill you, you God damn son of a bitch.” No one else saw the deceased knock the defendant down, although there were several in the room, and no one heard this remark; but, when the witnesses all testify that deceased had no pistol at this time, it can be seen that, presenting the issue as he did, the court was presenting the matter in the most favorable light for defendant.

The only other criticism is that the court erred in instructing the jury, in the charge of self-defense, that they might consider the relative strength and size of the parties and the defendant’s knowledge of the character and disposition of the deceased, in viewing the matter from defendant’s standpoint. In some eases this charge has been held to be error, and in others that it was proper to be given depending on the facts in each case. In this case certainly it could not be harmful to defendant. He testified he had known deceased for a number of years; that they had been out at a dance all the night before; that deceased was drinking and quarrelsome; had been in trouble at the dance, and had had a fuss there, and was in a very bad humor; that he saw him pull his pistol out and strike the counter at two different times shortly before the shooting; that he saw him knock Chumley down, and then had knocked him down and came towards him threatening to kill him. Taking this evidence into consideration in telling the jury that they might take into consideration the character and disposition of the deceased and the relative strength of the parties in passing on defendant’s right of self-defense, it certainly presents no ground for complaint on defendant’s part.

The only other contention of appellant is that we should have taken up the question of the constitutionality of the jury wheel law and passed on it again. In this case, on the'former appeal, this court upheld the constitutionality of the law, and the trial court did right in following that decision in again trying this ease. Appellant apparently misunderstood or misconstrued what we said on this question. We were not passing on the question of whether or not a jury selected in any manner other than that provided by law would be a legal jury. Nothing was further from our thought. What we intended to say was that, when the trial court followed the decision of this court in a given case on the second trial of that identical case, we would not review the same question again in that case and overrule the former decision, unless it was shown that some injury resulted to the defendant by the court in following the decision of this court. Were the rule otherwise, trial courts would in a great measure be at sea, and would feel inclined and be authorized to give but little weight to the decisions of the court. However, if it appeared that the decision was wrong, and a substantial injury had been done a citizen of this state by such decision, it would be our duty and pleasure to remedy that wrong. However, we might add, if we are to follow the decision of the Supreme Court of this state in the case of Beyman v. Black, 47 Tex. 558, the decision of the former appeals on this question would be sustained.

As appellant’s attorney has so ably and earnestly presented the several questions, we have given them more than usual consideration, and have rewritten on nearly all of them; but, there being no error that could or should cause a reversal of the case, the motion for rehearing is overruled.

DAVIDSON, P. J., not sitting.  