Appellant bases his motion for rehearing upon three grounds; the first being that we were in error in not sustaining complaint of the action of the trial court in denying the application for continuance. This point was discussed at length in our original opinion, and after reviewing the matter again we think the proper conclusion was reached.
Appellant specifically objected to proof of part of the statement of deceased to the effect that he never got appellant's meat; on the ground that it violated the rule excluding a dying declaration which was the statement of a fact not connected with the circumstances of the killing. (Branch's Ann. Texas P. C., Sec. 1865). In our original opinion we dealt with deceased's statement as a dying declaration only. As we understand the record, such statement was also admissible as res gestae. That part of it particularly objected to in no way impinged on the claim of appellant that he acted in self-defense, hence was not subject to the objection urged. (See Gray v. *Page 159 State, 47 Tex.Crim. Rep., 83 S.W. 705; Branch's Ann. Texas P. C., Sec. 83).
The third ground of appellant's motion for rehearing is based on the refusal of a special charge which sought to have the jury told that appellant had a right to arm himself for protection if he apprehended there would be a difficulty upon meeting deceased because he had been accused by appellant of stealing meat from him. There was no error in declining to give the instruction. No limitation was placed on appellant's right of self-defense. Gatlin v. State, 20 S.W.2d 431; Sec. 1950, Branch's Ann. Texas P. C.
The motion for rehearing is overruled.
Overruled.
MORROW, P. J., absent.