Appellant, by his able counsel, has filed an exhaustive and vigorous motion for a rehearing in which he contends that this court erred in the original disposition of this case.
We see no need in discussing each of his contentions in detail, but content ourselves with a discussion of the two main legal propositions advanced by him, relative to the court's instruction on provoking a difficulty and on the court's failure to instruct the jury concerning appellant's right to arm himself, seek the deceased and demand of him an explanation of why he struck him (appellant).
Appellant maintains that the issue of provoking a difficulty was not raised by the evidence and an instruction on the law relative thereto was an impairment of his right of self-defense. He contends that we misquoted and misconstrued the testimony by which the issue was sought to be raised.
There is no question but that appellant and the deceased had a difficulty at the filling station a few minutes prior to the time that the fatal shots were fired. The owner of the station, Mr. Allmon, told them that one of them would have to leave; that he did not want any fighting there. Appellant remarked to Murphy that he was going home, get his gun and come back, and that Murphy might as well get his. Appellant then drove away in his car, but returned in about twenty *Page 297 minutes with a shotgun and called for Murphy to come out. Allmon told appellant that Murphy was not there; that he had gone home, but appellant went to the door of the office carrying the shotgun in his hands. Not seeing Murphy, he entered his car and drove to Murphy's home. He stopped in the road in front of the house, got out of his car with the shotgun and took a few steps forward. When Murphy appeared with appellant's radiator cap in his hand, (which one of the boys had found), he remarked to appellant: "Here is your radiator cap — I will give it to you."
From evidence in the record, it might be concluded that appellant made no reply, but raised his gun and fired; that deceased then drew his pistol from a scabbard buckled to his trousers on the back of his person and fired, and then retreated to the back of his home; that appellant followed and fired two more shots, both of which took effect. However, there is evidence in the record from which the jury might have found that the deceased fired first. If so, then in our judgment the court properly charged on provoking the difficulty on the theory that appellant's conduct caused deceased to fire at him. When all that was said and done by appellant when he left the filling station, together with his subsequent acts and conduct at the time of the killing are taken into consideration, no doubt is left in our minds that the issue of provoking a difficulty was raised by the evidence. Consequently an instruction thereon was proper.
Appellant seriously contends that we misconstrued the evidence in this: That we stated that appellant, after he had gotten out of the car, approached the home of Murphy. He says there is no evidence which justifies this statement. Miss Evelyn Murphy testified as follows: "I saw Hunter (appellant) run up in front of the house and stop, get out of the car and move about three feet from there and then move a step or two more. I didn't see Hunter move forward any more." It seems that he wants this Court to construe the language to mean that when he took the steps forward, he was taking them away from the home and not toward it. Such a construction is not justified, because if he were going away from the house and not toward it, there would have been no need for him to have stopped the car in the road and gotten out. He might have continued driving.
We recognize as sound the general legal proposition that a person has a right to arm himself and seek his adversary for the purpose of a peaceful solution as to their differences, and *Page 298 that when such an issue is raised, a defendant is entitled to an instruction relative thereto.
But in the instant case, appellant did not testify as to his purpose of going armed to the home of the deceased. Consequently, we must look to his expressions when he first left the filling station, and also his subsequent acts and conduct up to the time of the fatal difficulty to determine his purpose. There is no evidence in this record raising such an issue and calling for an instruction such as was requested by appellant. Consequently, he was not entitled to it.
Appellant has cited us to a number of authorities which he contends support his contention. We have examined them and they announce correct rules of law, but they are easily distinguishable from the instant case on the facts.
We have again reviewed the entire record in the light of his motion, but see no good reason for receding from the original conclusion reached by us.
The motion for a rehearing is accordingly overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.