Appellant, in his motion for a rehearing, first complains of the following statement in the original opinion as not justified by the evidence. "But the possibility of the deceased's visit to the premises of appellant at the late hour of night, as detailed by his wife, is denied by the evidence given by two women asleep there, above referred to." The evidence of the two women place deceased at his house up to eleven P. M., at which time they left said house. Deceased was in bed when they left. The homicide occurred at or soon after midnight. The home of the *Page 551 deceased was only about four city blocks from that of appellant. After the women left the deceased could have gone to the home of appellant and returned to his own home before the killing occurred. We make the correction in deference to the complaint.
Appellant next contends that we erred in holding that the question of the District Attorney Willis to Adams if he ever bought any beer at appellant's house was not reversible error. The bill complaining of this matter shows that defendant objected before the witness gave any answer. The objection was sustained and the jury was instructed not to consider the question. Appellant insists, however, that the mere asking of the question was of such a prejudicial nature that the court could not effectively withdraw the same from their minds. We are unable to reach such a conclusion in the absence of any showing in the bill that it was a violation of the law to sell beer in Fisher County. The District Attorney should not have asked the question as it does not appear relevant or pertinent to any issue in the case, but under the facts disclosed by the bill reversible error is not shown.
Appellant objected to paragraph eleven of the court's charge on the ground that it was contradictory of other paragraphs of the charge, and shifted the burden of proof and confused the issue of self defense with the issue of a killing without malice. The language of said paragraph eleven is unhappily chosen and can not be approved. However, it is to be considered in connection with the preceding and succeeding paragraphs of the charge. In paragraph nine of the charge the court very fully and correctly tells the jury what constitutes murder without malice, defining "adequate cause" as found in our Penal Code, Art. 1257c. In paragraph ten the jury was told that if they believed from the evidence beyond a reasonable doubt that appellant killed deceased unlawfully and voluntarily, and not in self defense, but if they believed or entertained a reasonable doubt that at the time of the killing appellant's mind was inflamed from an adequate cause, the punishment assessed could not be for longer than five years in the penitentiary. Then follows paragraph eleven, criticism of which is renewed in appellant's motion for rehearing, and which will be adverted to presently. Paragraph twelve states the law of self defense, and application is made thereof in paragraph thirteen in which the jury was told that if deceased reached his hand under a pillow, and it reasonably appeared to appellant from the acts, words or conduct of deceased either alone, or in connection with all *Page 552 other facts and circumstances in evidence that deceased was reaching for a weapon with which to kill or seriously injure appellant, and there was created a reasonable fear of death or serious bodily injury from deceased, and that appellant acting upon such reasonable fear, killed deceased, or if the jury had a reasonable doubt as to whether the killing occurred under such circumstances, they should acquit appellant.
Reverting now to paragraph eleven. It begins as though it were also intended as an instruction on self defense, hence, we think, the criticism. The jury was told that if deceased was in bed and reached his hand under the pillow as if to get a weapon, and it reasonably appeared to appellant that deceased was reaching for a weapon with which to kill or seriously injure appellant, and if from the acts, words and conduct of deceased at the time either alone or in connection with all other facts and circumstances in evidence, appellant's mind became inflamed to a degree which rendered him incapable of cool reflection, and he killed deceased while in such state of mind, but was not acting in self defense, his punishment could be for no longer than five years, if found guilty of murder. The charge concluded with an instruction that if the jury had a reasonable doubt as to whether appellant's mind was incapable of cool reflection to give appellant the benefit of the doubt, and not assess his punishment at more than five years, even though they should find him guilty of murder. The paragraph is involved to some extent, but if it is in any way erroneous as applicable to the punishment of murder without malice, the error would be harmless because the minimum punishment of only two years was assessed. The paragraph of the charge in question, when considered with the instructions as a whole, seems subject to the construction that although it may have appeared to appellant that deceased was reaching for a weapon with which to kill or seriously injure appellant, yet if appellant was not apprehensive that such a result would follow, but became enraged by what deceased was then doing, either from that alone, or in connection with other facts and circumstances in evidence, and appellant killed while in such state of mind it would be a killing without malice, and punishable only as such. The paragraph, we think, cannot be reasonably construed as a limitation upon appellant's right of self defense. Especially is this true when paragraphs 12, 13, 14 and 18 are taken into account, all of which are on the issue of self defense.
It is not to be understood that we approve the language *Page 553 of paragraph eleven of the charge. It might be criticized from the State's standpoint as well as from that of appellant. Its language would indicate that if the things occurred as recited in the charge that an inflamed condition of appellant's mind resulted from adequate cause, instead of measuring it with the requirement that the same facts and circumstances would have produced that condition in the mind of a person of ordinary temper.
From what has been said it follows that we are of opinion appellant's motion for rehearing should be overruled, and it is so ordered.