The appellant was indicted at the November, 1926, term by a grand jury selected by a jury commission appointed by the district judge in August following the adjournment of the spring term of court. The power and authority under the circumstances to appoint jury commissioners at the special term of court is vested by the statutory law of this state. Supplementing the precedents cited in the original opinion, see Ex parte Holland, 91 Tex.Crim. R.; Bennett v. State,95 Tex. Crim. 422.
In Bills of Exception Nos. 9 to 25 inclusive, covering 35 pages of the record, numerous criticisms are addressed to the charge of the court. Some of these are by way of exceptions to the main charge and some are embraced in special charges requested by the appellant. Of these criticisms we have made the most careful examination *Page 504 of which we are capable, but their number and length preclude a discussion in detail. We are constrained to reiterate the remarks made in the original opinion to the effect that apparently many of these attacks upon the charge were met by the court before the charge was read to the jury. Among the criticisms, it is claimed that apparent danger was not submitted; that the jury was not told that the pistol in the hands of the deceased was a deadly weapon; that the court failed to instruct the jury upon the right to defend against more than one assailant; that it was the appellant's right to continue to shoot; that there was an omission in the charge on threats and upon the law of manslaughter. The soundness of many of the propositions is not open to question, but so far as they are sound, apparently they are all embraced in the main charge or in the special charges given to the jury. In paragraph 7 of the court's charge there is embraced the law of self-defense, including the right to defend against real or apparent danger. In paragraphs 8, 9 and 11 the right to defend against either or both of his assailants was embraced. Threats by the deceased were made the subject of the charge in paragraphs 12 and 13, and the law applied to the facts. The appellant's first, second, fourth and sixth special charges were given to the jury, telling them that the pointing of a pistol at a person was an assault; that the pistol was a deadly weapon and if used by the deceased, the law presumed his intent to kill; that if the first shot was fired by the appellant in defending against apparent danger, he was privileged to continue to shoot until, as viewed from his standpoint, the danger ceased. In Special Charge No. 6, there was embraced a complete charge upon the law of manslaughter. That subject was adverted to in a supplemental charge given by the court.
Of the special charges that were refused, some are regarded by the court as presenting unsound legal propositions. The others are in substance the same as the various paragraphs of the court's charge covering the subjects to which the special charges relate.
Matters not here discussed have received specific attention in the original opinion, and the announcements there made, at the time the opinion was rendered and at this time, express the views of the court.
The motion for rehearing is overruled.
Overruled. *Page 505