On a former day of the term the judgment herein was affirmed. Appellant in his motion for rehearing attacks the following expression in the original opinion: "Deceased and his wife were not living together. The testimony indicates that it is probable that the defendant may have been a contributing cause of *Page 626 their separation." The motion contends that this statement is not supported by the record. The writer was responsible for the expression in the original opinion, and in the light of the criticism has reviewed the testimony to ascertain if an injustice has been done appellant by reason of the statement
The State's case, through the witness Williams, is to the effect, that he and his wife and the wife of deceased, Agnes Davis, were walking along the street together and met appellant, who stopped Agnes Davis and stated to her he wanted to see her a moment. Witness says he and his wife walked on down the street and met deceased; that he and his wife stopped and turned around and watched deceased go down the street. "Immediately after that I heard someone say something, but could not tell what it was that was said and who said it, and then I heard some blows passed, and then I started back down there, and left my wife standing on the sidewalk. When I got to where they were they were not fighting, but just as I got there they went together again, and I heard Agnes Davis holler for someone to come there, that there was a fight." Just as they were pushed apart by Richard Wilson brother of defendant, appellant reached for something in his pocket and rushed up to deceased "and made two swipes with his right hand on the left side of Henry Davis, the dead man. He just ran at Henry Davis and struck him, and then the defendant and Richard Wilson, his brother, ran." This witness further says: "Yes, before that time Kid Wilson had told me that he liked Mrs. Agnes Davis, the wife of the deceased, and liked her company because she was so jolly and pleasant." This witness further testified he had not heard of any previous trouble between deceased and defendant. These witnesses seemed to have been impressed with the idea that when deceased approached where appellant and the wife of deceased were engaged in conversation that something was going to happen. The witness further testified: "I had never seen Kid Wilson at Agnes Davis' house since she and her husband had separated; he used to go there while they lived together, but I have never seen him there since they separated." The testimony further shows from another witness: "The next time I saw him was when we overtook him (appellant) and he was standing on the sidewalk talking to Agnes Davis, and I walked by them while they were standing there talking, and right after I passed them I met Henry Davis, and I walked on by a little way and turned around and watched them, as I expected trouble. I was in sight of them at the time, and Kid Wilson was standing there talking to Henry Davis' wife, and I saw Henry Davis go straight down the sidewalk, and go straight towards them, and when he got to where they were they went together and began fighting." The witness further testified: "I heard Henry Davis say: `Oh, Lordy, I am cut all to pieces,' and about that time I ran off. At the time that I loaned this knife to Kid Wilson he carried it in his hand, and it was open at the time I gave it to him, and I never saw him close it up, or put it in *Page 627 his pocket. I never saw any knife or arm at any time on Henry Davis during the fight." The defendant himself testified, referring to deceased: "I had never had any trouble before. I had been to his house some, while he and his wife lived together, but was never there except while he was there, and after they separated I never went back any more." The defendant denied being the cause of the separation. Other testimony of a kindred nature might be added to the above. If this does not justify the statement in the original opinion, the writer is still of the opinion that it would be rather difficult to understand what this testimony means. That they were separated is not contested. Every witness who testifies in regard to the matter shows that deceased and his wife were separated. Defendant said there had never been any trouble before this occasion, yet he stopped the wife of deceased on the street, having prepared himself with a large knife beforehand, and deceased evidently anticipating something, approached defendant and his, deceased's, wife, rapidly, and immediately upon reaching them defendant says deceased knocked him down and broke his glasses, then rushed on him again, and he, appellant, stuck his knife in him. We are still of opinion that the statement criticised by counsel found in the original opinion might be intensified and yet be within legitimate deduction from the facts. It is not my purpose to take up the facts and argue and discuss that question further. That every witness who testified in regard to the matter seemed to have anticipated there would be trouble at the time is not to be questioned by this record, and the fact that appellant was talking to deceased's wife, having prepared himself with a large open knife loaned to him by a witness who testifies and whose evidence is quoted in the original opinion, is also not debatable, there having been no other trouble between the parties and no occasion for it, as shown by the testimony of the defendant, and it was before the jury for their consideration. The deduction or conclusion is fully fair that the wife of deceased and deceased's separation from her entered into this case.
I do not care to discuss the court's charge as set forth in the original opinion. The cases relied upon by appellant, Lara v. State, 48 Tex.Crim. Rep.; Dodson v. State, 45 Tex. Crim. 574, and McMillen v. State, 73 Tex.Crim. Rep., are not in point. Had the court's charge terminated with coupling the conditions as found in the charge and gone no further, those cases would have been in point and required a reversal of this judgment. But the court after giving these conditions in his charge on self-defense, gave the converse of it favorable to the defendant, and instructed the jury that if either of these statements or conditions occurred and deceased made an attack which brought actual or apparent danger to defendant, he had a right to kill. It occurs to us this was favorable to defendant so far as that phase of the charge is concerned. The court gave a full charge on both actual and apparent danger. Having given a charge that would have been reversible by coupling all the conditions, the court then instructed *Page 628 the jury that if either statement was made or any condition occurred followed by the attack, real or apparent, on the part of deceased, the defendant should be acquitted. It presents the opposite side or the reverse proposition favorably we think to the defendant. The first part of the charge should not have been given, but having given it, the court then instructed the jury favorably to defendant's side of the case. But in any event, the jury was instructed that if either of these matters occurred or any other statement was made by deceased, appellant was entitled to an acquittal, provided it presented to him either actual or apparent danger.
The motion for rehearing, therefore, will be overruled.
Overruled.