This case was affirmed on a former day of this term, and appellant has filed a motion for rehearing presenting but two grounds, ably arguing them both. In the second ground he presents a question not raised by the motion for new trial filed in the lower court and to which no assignment was made in any bill of exceptions. In fact, it was not presented in the brief of counsel filed in this court on the original hearing, but is urged for the first time in his motion for rehearing filed herein. This is too late to point out errors in the charge of the court, unless it presents fundamental error. That a certain portion of a paragraph of a charge of the court might properly be construed to be upon the weight to be given the testimony, if it were considered at all by the jury, does not present fundamental error, and for us to review a charge in this respect it must have been excepted to at the time of the trial on that ground, or the error must have been called attention to in the motion for new trial. Article 723 of the Code of Criminal Procedure provides that this court shall not reverse a case on account of an error in the charge unless it is pointed out by an exception at the time of the trial, or in the motion for a new trial. Appellant having done neither, we can not review the matter set up in the second ground of the motion for rehearing, and will not pass thereon.
In the first ground of the motion for rehearing appellant earnestly insists that the evidence did not authorize a charge on provoking the difficulty, and the court erred in so charging, in the following paragraph: "I further charge you that if you believe from the evidence, *Page 264 beyond a reasonable doubt, that the defendant sought the meeting with deceased for the purpose of slaying deceased, and having found him, did some act, or used some language, or did both, with intent to produce the occasion and bring on the difficulty, and that the same, under the circumstances, was or were reasonably calculated to provoke a difficulty, and on such account the deceased attacked him, and he then killed deceased in pursuance of his original design, then the defendant can not justify on the ground of self-defense, but such killing would be murder of one of the degrees; but if defendant had no such purpose in seeking the fatal meeting, or having it, did no act reasonably calculated to provoke the difficulty, was attacked by the deceased, then his right of self-defense would not be forfeited, and he could stand his ground and defend himself by the use of such means of defense as the facts and circumstances indicated to be necessary to protect himself from danger or what reasonably appeared to him at the time to be danger." Appellant admits that the court gave a full, fair and complete charge on self-defense, and to which he assigned no error, but he says that the evidence did not raise the issue of provoking the difficulty as presented in the above charge, and that in giving this charge it was an unwarranted limitation on his right of self-defense, appellant, in his brief, saying: "In the opinion in this case the court uses this language, `The court, very fairly, submitted the issue of self-defense;' from this we understand that the court is of the opinion that self-defense was raised; there is no intimation in the opinion that such issue was not fully presented by the evidence. We further notice, after discussing the Goodwin case, the court uses the following language, `And in this case, we have grave doubt that the issue of provoking the difficulty is in the case, but we are firmly of the opinion that even though it should be held that no such issue is in the case, that under the evidence, in this case, such charges as given by the court was not calculated to and did not impair the rights of defendant, and under the provisions of our Code of Criminal Procedure, it would not be ground for reversal of the case.' Will it be written down as an opinion of this honorable court whose judgment is final, whose opinions fix the rule for our guidance in the trial of criminal cases, that where the issue of self-defense is presented, and that of provoking a difficulty is not, that the submission of such issue is harmless?" No counsel in this case, nor in any other case, can take it as the opinion of this court that where the issue of self-defense is presented, and that of provoking the difficulty is not, that the submission of such issue is harmless. We decide every case upon the evidence of thatcase, and in some cases, as in this one, it will be held to be harmless, while in other cases it would be material and reversible error. The cases presented by appellant present that view and present it admirably, and if counsel would read the evidence in those cases he would see wherein they vary materially from the case he is here presenting, and why the decisions *Page 265 he quotes are not applicable to this case, nor authority for holding that such a charge in this case would present reversible error. This court has always held that the law must be submitted as applicable to the facts in the case on trial, and has held that where it was contended that a defendant, under the evidence, has forfeited or abridged his right of self-defense, that consideration must be addressed to the nature and quality of the wrongful acts by which it is claimed the right of self-defense is abridged, and the adjudicated cases in this State hold among the slayer's acts which abridge his right of self-defense are the following: First, devices by language, or otherwise to provoke the deceased to make an assault which will furnish a pretext. Second, provocation of the deceased into a quarrel, causing the fatal affray when the intent is discernible from all the evidence. Third, preconcert with deceased to fight him with deadly weapons, or mutual combat. Fourth, commencing an attack, assault, or battery upon the deceased, and fifth, going with a deadly weapon where the deceased is, after an altercation, and by some act then done, showing an intention to engage in a deadly combat, even though the deceased may be guilty of such overt act. See Cartwright v. State, 14 Texas Crim. App., 486; Cunningham v. State, 17 Texas Crim. App., 89; Jones v. State, 17 Texas Crim. App., 602; Allen v. State, 24 Texas Crim. App., 216; Ball v. State, 29 Texas Crim. App., 107; Milrainey v. State,33 Tex. Crim. 577; Thumm v. State, 24 Texas Crim. App., 667; Meuly v. State, 26 Texas Crim. App., 274; Bonnard v. State, 25 Texas Crim. App., 173; Johnson v. State, 26 Texas Crim. App., 631; Levy v. State, 28 Texas Crim. App., 203; Carter v. State,30 Tex. Crim. 551; Polk v. State, 30 Tex.Crim. Rep.; Sullivan v. State, 31 Tex.Crim. Rep.; Jackson v. State,32 Tex. Crim. 192; Powell v. State, 32 Tex.Crim. Rep.; Mathis v. State, 34 Tex.Crim. Rep.; Burris v. State,34 Tex. Crim. 387; Plew v. State, 35 S.W. Rep., 366. Other cases might be cited laying down these rules. The defendant himself testified that he and Fisher and Myers went into the saloon where deceased was at work, and that deceased had cursed him as being a G_d d__nd dirty, cowardly s_n of a b___h about the way defendant had treated Duke Kerr, and that deceased had told him, "I am going to get you — I am fixed all the time." That he left this saloon and went to the American bar where he filled his pockets with cartridges; that he learned the gun Mr. Townsend had left at the American bar, a "sawed-off shotgun," had been soaked by Fisher, when Kuhlman said, "I think I can get a gun from Mr. Kahn," when he went to Gombert's saloon, where the conversation took place copied in the original opinion, wherein the remark was made that they wanted the gun to kill "a d___d s_n of a b___h," etc., the full text being copied in the original opinion. When they failed to get a gun from Kahn, William McBride was 'phoned, and his gun was secured, when appellant went direct to the place where deceased was employed and the *Page 266 killing took place, being an assassination according to the State's testimony; the defendant in his testimony presenting a theory which called for a charge on self-defense. Under this state of the record, wherein it is shown that defendant became angry at the remarks of deceased, goes off and fills his pockets with shotgun shells, secures a shotgun and returns to the place of the difficulty, after the remark has been made that the gun is wanted to kill a s_n of a b___h, the deceased being shown to be the man who is talked about. Such a charge as herein given would not present reversible error, where a full and complete charge on self-defense is given.
Motion for rehearing is overruled.
Overruled.