While nothing is presented for our consideration in appellant's motion for rehearing in addition to the matters discussed in the original opinion, it is strenuously insisted that an injustice has been done and that the "conviction should be set aside though there be evidence supporting the verdict." For this *Page 495 position, reliance is had on Burkhalter v. State, 247 S.W. 544 and 18 Tex. Jur. page 430.
We concede the paramount rule of evidence to be that a conviction cannot be sustained where the evidence leaves reasonable doubt as to the guilt of the accused. Perkins v. State, 32 Tex. 109; Hardeman v. State, 12 Tex. App. 350[12 Tex. Crim. 350]. However, we have concluded, after a careful study of the facts of the case before us, that the announcement of so fundamental a principal does not aid appellant in a disposition of the instant case by this court. Questions of fact arising in the mind of the trial court, when properly before him, will be disposed of by him on motions for new trial, and his conclusions thereon are as binding upon this court as are the findings of the jury.
A large number of witnesses whose testimony on the subject stands uncontradicted pictured the deceased as a highly over-bearing man, diligent in the performance of his duty, but lacking in judgment. Apparently all of his fellow officers testified and concluded that he was a man who had no business carrying a gun. He was nervous, excitable, and was smarting under his defeat for reelection as constable. He had made threats against people as a class and had particularly singled out appellant on many occasions as one he was going to kill or going to "get" before his term of office expired. His conduct toward appellant in the presence of others on several occasions was insulting and was calculated to provoke a difficulty. In this he was persistent. Such threats as he made were many times conveyed to appellant. Had the deceased made an attack on appellant in a manner indicating an intent to carry out one of his many threats, appellant would have been warranted in using such force as would have appeared to him to be reasonably necessary in defending himself against death or serious bodily injury. The conduct of the officer, as detailed by many witnesses, and the manner of his approach in attempting the arrest which resulted in his death were such as to direct our most serious attention to the contention presented that appellant had a perfect right of self defense, contrary to the jury's finding.
We disclaim any intention to say in the original opinion that an officer has a right to approach a party whom he wishes to arrest and beat him into submission with his gun, blackjack, or other devise. The rule seems to be that when aggression of the officer in making the arrest exceeds what is reasonably necessary to effect the arrest the right of self defense inures to the party assaulted. Stanfield v. State, 38 S.W.2d 94, Vernon's *Page 496 P. C. Art. 1212, Subdivision 8, and C. C. P. Art. 241, with annotations.
The many witnesses testified that the deceased approached appellant in rather a positive and probably excited manner and either had a pistol in his hand or secured it immediately. However, he replaced his pistol in its scabbard and secured what appeared to be a blackjack or billet and also his handcuffs. Appellant declined to be arrested and the officer was attempting to place the handcuffs on appellant at the time the first of the fatal shots was fired. There is no evidence in the case that he struck appellant with the pistol or with the billet. There is no positive evidence that he even tried to do so. Appellant, himself, does not claim that the deceased struck him or that it was the fear he was going to injure him at that particular time which was the immediate cause of the shooting. He was afraid to be arrested by the deceased because of the things that had transpired in the past and his fear of being improperly handled after the arrest. He was afraid to be carried to jail by him, alone, and does not say that he shot the officer to prevent an injury about to be inflicted upon him. He feared what the officer would do after the arrest and not what he was doing, or about to do, at that time.
We think this evidence did raise an issue of self defense which was properly submitted to the jury, but it certainly does not fulfill the requirements of the law to make it perfect self defense. The officer had a warrant which gave him the right to arrest appellant and appellant was not in the position of one who had a right to resist an illegal arrest. His only right was to defend himself against the conduct of appellant, which he feared, and it was for the jury to say whether or not he was so justified in doing this. They made their findings, and this court has no power to disturb it.
Appellant's motion for rehearing is overruled.