The judgment in this cause was affirmed at a previous day of this term, and comes before us now on motion for rehearing. Appellant insists that the court committed an error in the original opinion in holding that the court below acted correctly in rejecting evidence offered by appellant that a short time prior to the homicide deceased had told him that he had been in the penitentiary and had served a term there for murder. Appellant's insistence is that the court was wrong in holding that the principle announced in Childers v. State, 30 Texas Crim. App., 193, did not apply. We have reexamined the question as presented in the motion for rehearing, and in our opinion appellant's contention is correct. Appellant, according to his own testimony, relied on self-defense; that is, under the circumstances of this case appellant was entitled to produce in evidence any *Page 205 fact, hearsay or not, which would go to explain his condition of mind at the time and his grounds for apprehension as against deceased. If appellant had the right to chastise deceased, and there was evidence on that point, and it was proper to submit this issue to the jury, then, if deceased resisted such chastisement, and by some act or demonstration of his caused defendant to believe that his life was in danger or his person in danger of serious bodily harm, he had a right to have in evidence any fact which tended to prove the bona fides of his belief; and in reconsidering this question we are of opinion that it was competent for him to prove in this connection the fact that deceased had told him on a prior occasion that he had been sent to the penitentiary for murder, as this tended to prove the desperate character of deceased, and would probably render more significant the acts of deceased so far as appellant was concerned.
Appellant strenuously insists that the court committed an error in the original opinion in holding that the court's charge on impeaching testimony was not erroneous; and in support of his contention cites us to the cases of Howard v. State, 25 Texas Crim. App., 693; Winn v. State, 34 Tex.Crim. Rep.; Poyner v. State, 40 Tex.Crim. Rep.; Crockett v. State,40 Tex. Crim. 178. We have examined the charges in said cases which were held to be erroneous, but it does not occur to us that the charge here given was similar or subject to the vice contained in the charges in the cases cited. We do not believe in this case that any charge should have been given on the subject, as the impeaching evidence could not have been used for any other purpose.
For the errors discussed the motion for rehearing is granted, the judgment is reversed, and the cause remanded.
Reversed and remanded.
Delivered December 12, 1902.