In this case appellant has filed a motion for rehearing in which he earnestly insists that the court erred in holding that the court below committed no error in overruling his application for a change of venue; second, that the court erred in admitting certain evidence as to the reputation of deceased being a peaceable and law-abiding citizen; third, that the court erred in permitting evidence to be introduced showing that the stock law was in force, and in the charge given to the jury on this issue, and, fourth, that the court erred in submitting the issue of appellant's right to defend against danger or apparent danger to himself, insisting that the evidence presents no such issue.
While not watering the other questions in the case, these are the only ones insisted on by appellant's counsel, and they have filed an able and exhaustive brief thereon, as have also counsel for the State. At the request of Presiding Judge Prendergast we have taken the record, and the briefs filed and studied them carefully in regard to the questions thus presented.
In his motion presenting the question of change of venue appellant says this court in its opinion says: "A large number of witnesses testified for both sides, and, as is usually the case, the testimony of some would support appellant's contention, while the testimony of others would contradict it." He then insists that the court did not pass on the second statutory ground, "that there is a dangerous combination against appellant, instigated by influential persons, by which he can not expect a fair trial." The court in its original opinion discussed the question generally, without taking up each of the grounds separately, but considered both grounds in passing on the question.
Now what facts does appellant rely on to show a dangerous combination against him, which would prevent him from getting a fair trial? The testimony on the change of venue would show that some time prior to the homicide appellant had killed another man in the same community (Lone Oak); that he was tried and acquitted; that when this homicide occurred some eighteen or twenty citizens of the Lone Oak community went to Greenville, the county seat, and requested the court to empanel a grand jury to investigate this case, and if a bill was found, to try appellant at that term of court. The record discloses that Lone Oak is in the extreme southeastern portion of the county, twenty miles from Greenville. While it is not shown that these men used any harsh language towards appellant at the time they talked with the judge, yet it should be conceded that these men would not make fair and impartial jurors, owing to the interest they were taking in seeing that the case was promptly investigated. Appellant was indicted, and the cause set for hearing at that term. When it was called for trial appellant's motion for a continuance was granted. It is shown that Mr. Neyland, who was then district attorney, was *Page 575 attorney for appellant in his former homicide trial, as was also his brother. When appellant killed deceased the district attorney's brother was called by appellant to confer with him, and he went to Lone Oak the day of the homicide. After the case was continued there was something said by some citizen or citizens of Lone Oak about the case being continued which might be said to reflect on the district attorney and his brother. The district attorney called a meeting of the citizens of Lone Oak community, some sixty attending, and addressed them, explaining that he opposed the continuance, suggesting the employment of counsel to prosecute the case in connection with him. On this suggestion Mr. Johnson passed around a subscription list in the Lone Oak community and raised funds to employ Clark Leddy to prosecute the case in connection with the district attorney. It is not shown, nor even suggested, that any man outside of the Lone Oak community contributed to this fund or was solicited to do so. This is the full extent of a combination shown, if it shows a combination. If it was shown by the record that the same condition existed all over the county, or any considerable portion thereof, as it existed in the Lone Oak precinct, the change of venue should have been granted. But the record discloses that Hunt County contains some 9000 voters, and at least 6000 qualified jurors, and Lone Oak precinct embraces only a very small per cent of that number, only 370 votes. The Campbell community is in the Lone Oak precinct, and near to Lone Oak, and the same condition may be said to have existed at Campbell, although it is shown that appellant had many friends at Campbell who signed his application for a change of venue, and who testified in his behalf on this hearing. But what do the witnesses for appellant say about a "combination of influential citizens"?
O.E. Branch testified: "No, sir, I do not know of any combination of influential citizens organized in any way that would prevent the defendant from getting a fair and impartial trial."
D.M. Finley testified: "I don't know that there is a combination against Mr. Barnett, instigated by influential persons by reason of which he can not get a fair trial. Where we got that from was Lone Oak. I understood that one day a crowd from Lone Oak came here to demand a trial."
W.J. Wheeler testified that while he signed the affidavit for a change of venue, that he did not mean to say that he knew of a dangerous combination of influential persons — that he based it on reports that had come to him that counsel had been employed to prosecute by some citizens of Lone Oak.
W.O. Dunbar testified that he was a friend to Mr. Barnett (Sr.) and had been his friend for a number of years; that he did not know of any combination of influential people combined against the defendant to prevent him getting a fair trial. That the allegation was based an the fact that some citizens of Lone Oak had gone to Greenville to demand an investigation and trial, and it was his opinion this might create a prejudice. *Page 576
Mr. W.E. Harris testified: "I don't know of any combination of influential citizens that have combined against Mr. Barnett to prevent him getting a fair trial."
These were all witnesses introduced by appellant, and we might continue such excerpts but do not deem it necessary, for the testimony of each and every one of them shows that the only facts they had to sustain such an allegation was as hereinbefore stated, that some eighteen or twenty citizens of the Lone Oak community had gone to the district judge and asked that he empanel a grand jury and try appellant at that term of the court, and the further fact that a subscription list had been circulated in Lone Oak community to raise funds to employ Clark Leddy to prosecute the case. In addition to this a few witnesses stated that they had heard a rumor that if he was not promptly tried there might be mob violence, yet the record shows that the case was continued, appellant gave bond, returned to the Lone Oak community, and remained there until this trial was had, and there was no sign or suggestion of mob violence.
In the case of Earles v. State, 47 Tex.Crim. Rep., this court held: "If the evidence shows that outside of one particular locality there is very little, if any, prejudice against defendant, the decision of the judge refusing the change of venue will be sustained."
In the case of Renfro v. State, 42 Tex.Crim. Rep., a portion of the testimony is recited, and we think makes a stronger showing than was made in this case, and after reciting the testimony, the court says: "We do not think that the facts as above detailed show that appellant could not get a fair and impartial trial, under the laws and Constitution of this State, in Johnson County at the time of this trial. The evidence discloses that whatever prejudice there might have been, as far as the record shows, was confined to the northeastern part of the county. The county contains 9000 voters, and the witnesses who testified for appellant are nearly all from the northeastern part of the county, where the parties to the tragedy had formerly lived. Some of the witnesses introduced by appellant himself stated that they would not swear that a fair and impartial jury could not be selected in the immediate vicinity where the killing occurred. We find nothing in this bill of exceptions to indicate that there exists any combination of people or any prejudice in Johnson County such as would likely deprive appellant of a trial fair and impartial, according to the laws and Constitution of this State."
As shown by the evidence in this case, Hunt County contains 9000 voters; only 370 of them live in the Lone Oak precinct, and whatever of prejudice there is against appellant is confined to the Campbell and Lone Oak communities in said precinct in the southeastern portion of the county, and when we consider the record as a whole that is now before us, it discloses that it was not only possible to obtain a jury in the way they are selected which would be without prejudice, but in fact one was selected out of a venire of less than one hundred men. As we read the record there is nothing to indicate that the case had *Page 577 been prejudged by the citizenship of Hunt County, nor that there was any prejudice against appellant except in the locality where the offense was committed, and the evidence offered by appellant (excluding that offered by the State) shows there was no dangerous combination against him instigated by influential persons such as would prevent him getting a fair trial. Applications for a change of venue are confided to the discretion of the trial judge, and that discretion should not be interfered with on appeal unless the record discloses it has been abused or arbitrarily exercised to the prejudice of the accused. Noland v. State, 3 Texas Crim. App., 598; Grissom v. State, 4 Texas Crim. App., 374; Labbaite v. State, 6 Texas Crim. App., 257; Daugherty v. State, 7 Texas Crim. App., 480; Cox v. State, 8 Texas Crim. App., 254; Bohannon v. State, 14 Texas Crim. App., 271; Martin v. State, 21 Texas Crim. App., 1; Lacy v. State, 30 Texas Crim. App., 119. And whenever the facts show that whatever prejudice existed was confined to a single section of the county, there is no error in refusing the application. Harrison v. State, 43 S.W. Rep., 1002.
Appellant's next contention is, that while this court perhaps correctly held that evidence was admissible that the reputation of deceased was that of a peaceable and law-abiding citizen, but he insists that in admitting this testimony the court admitted evidence which is inadmissible on this issue. He specially cites the testimony of J.T. Stewart. The entire bill is:
"Be it remembered that upon the trial of the above entitled and numbered cause, and while the State's witness J.T. Stewart was on the witness stand, and being examined by State's counsel in chief, the following questions were asked with the following objections and answers thereto, towit: Q. State if you know whether or not the deceased was a man of violent and dangerous character, or a man of kind and inoffensive disposition, and whether he was such a person as was calculated to carry into execution a threat made. Counsel for defendant: We object to that, because it is leading, a conclusion of the witness, immaterial and irrelevant and no proper predicate for the introduction, and not in rebuttal to anything. Q. State, if you know, his general reputation as being a violent character, or a man of an inoffensive disposition. Counsel for defendant: We object, because it is immaterial and irrelevant, and no proper predicate laid for the introduction, and calls for an opinion and conclusion of the witness, not in rebuttal to anything offered by us, and does not state whether in Halifax, Texas or in Missouri, and could not have been known to the defendant. Court: Overruled. Defendant excepts. Q. Do you know whether he was a man of violent and dangerous character, or whether a man of kind and inoffensive disposition? Counsel for defendant: Same objections to that. Overruled by the court. Defendant excepted. Q. Do you know? A. Yes, I know. Q. State what it was. Counsel for defendant: Same objections to that. Court: Overruled. Defendant excepted. A. He was of a peaceable character, I never knew of him having any *Page 578 trouble. Q. You say he was peaceable? A. Yes, sir. Counsel for defendant: We raise the same objection to that, and move to strike it out. Court: Overruled. Defendant excepted. Q. Then state whether or not he was of a kind and inoffensive disposition. Counsel for defendant: We object to that as leading, and the other objections, too. Q. General reputation? A. He was. Counsel for defendant: We except. To all of which action and ruling of the court defendant then and there in open court excepted, and here tenders this his bill of exception, and asks that the same be examined, approved and filed as a part of the record of this cause.
Sam D. Stinson, Crosby, Hamilton Harrell, Attorneys for Defendant.
"Examined, approved and ordered filed as a part of the record in this cause with this explanation: There was no objection that the questions asked or the answers made were not the proper way to prove general reputation; no motion to exclude any answer on that ground, and I understood the question to refer to general reputation and it appeared that the parties so understood them.
Wm. Pierson, Judge, 8th Dist."
It is thus seen that on the trial of the case the contention made by appellant was that the State had no right to prove the general reputation of deceased in the respect mentioned. The record discloses that before the questions propounded were objected to Mr. Stewart had testified: "I live at Sobel, Oklahoma; I am 44 years old. I am an uncle to Harrison Choate (deceased). I remember Harrison Choate coming to Texas. I have known Harrison Choate ever since he was born. He has worked for me, mostly in stave making — timber work. He was working for me mostly four or five years in the stave business; the places he worked at were Ruth, Coreen, Soencerville, Soba, and Lukefodder, I believe that was all the places he worked for me in the timber business as well as I remember — no, he worked for me in Texas, too." Appellant had introduced evidence tending to show that deceased had made threats against him. By Mr. Kennerly, that he had heard deceased say, "By God, if appellant did not come across, the trouble between them had not begun." By Clyde Willis, that deceased had said: "That appellant was trying to run him off the place — that he would scrap the great big son-of-a-bitch every morning before breakfast before he would let him run him off." By C.M. Scott, that he heard deceased say. "That if appellant did not stay out of his business he would get up in his wool." By Sam Branch, that deceased had been practicing with his pistol. By Grady Barnes, that he had seen deceased cleaning a rifle, and from his acts and conduct he was led to go and tell appellant about it, and tell him "that he had better be careful, if he did not deceased was liable to get the drop on and kill him some time." By *Page 579 Wylie Smith, that deceased had told him "he could make more money whipping appellant than he could making a crop." Appellant attempted to prove that deceased had trouble with his father-in-law in Oklahoma, and would have killed him if his wife had not gotten the gun away from him, and introduced witnesses who testified that deceased's wife had so told them. Also evidence tending to show that deceased had had other difficulties in Oklahoma, and then got on the stand himself and testified to having heard these matters; that deceased had made threats, and the threats were communicated to him. After the introduction of this testimony by appellant, then proof of the general reputation of deceased was admissible as a peaceable and law-abiding citizen, and the court did not err in admitting it. While in the above bill it may be said that the questions do not follow the stereotyped form, "Do you know his general reputation in the community where he lived?" in the respect mentioned, yet the whole testimony and examination shows that the witness was testifying as to his reputation in the community where he had lived, and while the questions propounded and examination were perhaps a little irregular, yet as no testimony was brought out other than that deceased's general reputation was that of a peaceable, law-abiding citizen, and the irregularity was doubtless brought by the continued objections of appellant after the court had ruled that deceased's general reputation was admissible, the bill presents no error. When the person on trial introduces testimony that deceased had made threats, then evidence of general reputation is admissible. In Menefee v. State, 50 Tex.Crim. Rep., it is said if the defendant introduces evidence of communicated threats, it is not error for the State to introduce proof of good character for peace. See also Rhea v. State, 37 Tex.Crim. Rep.; Cornelius v. State, 54 Tex.Crim. Rep.; Jirou v. State, 53 Tex. Crim. 18. The witness qualified to prove general reputation when asked if he knew, and answered, "Yes, I know it."
The next objection appellant makes is that the court erred in admitting evidence to show that the stock law was in force in the territory where the mules got out and went into the field being cultivated by deceased. This question was so thoroughly discussed in the original opinion we would not deem it necessary to do so again only that appellant now makes a contention that deceased was not a tenant but a "cropper," and being a cropper, had no estate in the land. If this were true, of course it would put an entirely different phase upon that issue. If appellant was in actual possession of the land, and deceased had no possession, then the court's charge on that issue would be erroneous. But does the evidence in this case even suggest that appellant was in possession of the land being cultivated by deceased? The fact that it may be a part of his homestead does not raise such an issue, for farmers very often rent a part or all of their homestead farm to tenants for a year, and under the law the tenant during that year is in possession of the farm, and if he in fact is a tenant, and not what is termed a cropper. Nor does the fact that one pays as rent part of the crop in *Page 580 and of itself make one a cropper and not a tenant or lease holder, whether he pays the third and fourth, or one-half the crop. If it is the landlord's crop and he pays the one who does the labor in the crop a part of the crop in payment for his services, then the laborer is not a lease holder or tenant, but is what is termed a cropper. If, however, the one who labors in the crop owns the crop and pays the owner a given portion of thecrop for the use of the land for the year as rent for the land, and has possession of the land, he is not a cropper but a tenant, and has a lease hold interest in the land. This is statutory in this State. Article 5475, Revised Statutes, reads: "All persons leasing or renting lands at will or for a term shall have a preference lien upon the property of the tenant hereinafter indicated upon such premises for any rent that may become due whether the same is to be paid in money, agricultural products or other property." If the crop was the property of the owner of the soil he would and could have no lien. It is true that under our decisions where the rental is for one-half of the crop it has been held that upon the maturity of the crop the owner of the land becomes and is the owner of one-half of the crop raised on the rented premises, and may sue for it as owner and not lien holder, but he is held to be only a lien holder on the tenant's half of the crop for such supplies as he may have furnished, and if he has furnished no supplies, the other half of the crop is the property of the tenant to do with as he wills in so far as the owner of the soil is concerned. On the other hand, if the trade is that he is to pay the man who works one-half the crop raised as wages, the landlord would own the entire crop, and the person who worked the crop would be entitled to one-half as wages, and for which he might have a cause of action if the landlord refused to pay it. That well-known text writer on land law, Mr. Tiffany, in his work on "Landlord and Tenant," well says in section 10: "`Cropper' distinguished from tenant: Where the owner of land makes a contract with another whereby the latter is to cultivate the land and the crops produced are to be divided between the two parties in a certain proportion, the relation of landlord and tenant may or may not result. The question of whether it does result is one of intention, to be determined upon a construction of the whole instrument if the contract is in writing, or from the language used by the parties and their acts in carrying out the contract if the agreement is oral. The various considerations which may operate in this connection, and the perplexing questions which may arise under such an agreement as to the ownership of the crops pending their division, will be reserved for future discussion, and it is desired in this place merely to point out that the principle that only a tenant has possession and that an occupant in another capacity has not possession applies in this case as in others. That is, if the agreement involves a lease, making the cultivator of the land a tenant, he has the possession, while if it is a mere cropping contract.' the possession remains in the owner. And, conversely, if the agreement shows an intention that the possession or the exclusive possession,' as it is frequently expressed, shall remain in *Page 581 the land owner, it does not constitute a lease making the cultivator a tenant, while if it shows an intention that the cultivator shall have the possession or `exclusive possession,' he is necessarily a tenant. In one or two cases the court refers to this right of possession as one of several considerations on the question of the relation of the parties, but, it is submitted, if their intention in this regard is clearly established, it must necessarily be conclusive as to the relation."
Now what does the evidence in this case show? Appellant himself testifies: "The agreement was that I (appellant) was to furnish the necessary team and tools to work the crop, the feed to feed the team, and he (deceased) was to give me half the cropdelivered at the gin." He further says that later on he (appellant) arranged to let deceased have more land than he at first let him have. He furthermore testifies that he later talked to the justice of the peace "in regard to deceased trespassing on his place with the exception of where he had rented," and that thereafter when some trouble arose appellant says he told deceased, "Harrison, so far as your crop is concerned and as far as it gives you liberty on my place you are at perfect liberty to go wherever that crop gives you permission to go, but otherwise don't you go on my place any further." Many similar expressions can be found in appellant's testimony, all showing that his construction of that contract was that he had rented the land to deceased. In fact, no issue appears to have been made in the trial court, but it seems to have been conceded that deceased was a tenant in possession of the land, and the contention that he was merely a "cropper" and had no interest in the land is raised for the first time in the motion for rehearing in this court. All the witnesses so testify. Padgitt Barnett, a son of appellant, testified: "There was a rental contract by which Mr. Choate, deceased, was to rent the land. I heard part of the terms of the contract."
R.R. Neyland, an attorney, testifies: "Bob Barnett (appellant) counseled with me concerning a man that was living on his place by the name of Harrison Choate; he was to see me in reference torental contract that he claimed he had with Mr. Choate."
Mrs. Choate testified: "We (herself and husband, deceased) went to Bob Barnett's house and stayed there two weeks and then went to keeping house on his place. My husband had arranged to rent some land from Bob Barnett. I heard Bob (the defendant) say what the contract was before Harrison (the deceased) . . . I think there was about thirty acres of land my husband rented."
Under this state of facts none of the authorities cited by appellant bear out the contention now made that deceased was a cropper and not a tenant and had no lease hold interest in the land. Instead the above evidence being uncontradicted and unquestioned on the trial, there can be no question but that deceased was a tenant in possession of the land he was cultivating. But it may be insisted that deceased had not penned the mules. The record discloses that when deceased and his wife went back to their field they found the mules in this enclosure. After working some forty minutes deceased sent his wife *Page 582 back to their home after some ropes to catch and rope the mules. While she was gone Padgitt Barnett, the oldest son of appellant, went down into this field after the mules. Deceased refused to let him have them. Morally, it might be said under this record, deceased did wrong, but legally he committed no wrong to hold stock that had got into an enclosure under his control for that year, the stock law being in force in that territory. Appellant knowing that his stock had gotten into an enclosure under the control of and in possession of deceased, had no right to attempt to take them by force. Even if deceased had no legal right to hold them, the stock being in his enclosure, the law does not sanction the use of force by appellant to regain possession of his stock. He had attempted to do so peaceably by sending his son after them; deceased declined to let him have them. Appellant then sends his wife and younger son after the stock, he taking a gun, getting on one side of the field, and his older son takes another gun, and gets on the other side of the field. For what purpose did appellant and his son take their guns and get on opposite sides of a fifteen-acre field while Mrs. Barnett went into the field? If, as appellant contends, it was to protect his wife and see that deceased offered his wife no insult or violence as contended by him, they did no legal wrong in taking their guns, and the court so instructs the jury, giving the special charge requested by defendant, reading as follows:
"You are further instructed that homicide is justified by law when committed in the defense of another person against any unlawful and violent attack made in such manner as to produce a reasonable expectation or fear of death, or serious bodily injury to such party, and it is not essential that the danger should, in fact, exist. It may be only apparent and not real. If it reasonably appears from the circumstances of the case that danger existed, the person acting upon such apparent danger has the same right to defend against it and to the same extent that he would have were the danger real; and in determining whether there was reason to believe that danger did exist, the appearances must be viewed from the standpoint of the person who acted upon them.
"Now, if the defendant's wife, together with her little boy, went down into the field for the purpose of driving out the mules of defendant, and the deceased, Harrison Choate, with a hoe in his hands, followed after them and that the mules of defendant commenced running across the field, and the wife of the defendant started rapidly in pursuit of them, and the deceased, Harrison Choate, following her with a hoe in his hand, and from the acts of said Harrison Choate, if any, or from his words, coupled with his acts, if any, there was created in the mind of the defendant a reasonable apprehension that his wife was in danger of losing her life, or of suffering serious bodily harm at the hands of the said Harrison Choate, then the defendant had the right to defend her from such danger or apparent danger, as it reasonably appeared to him at the time, viewed from his standpoint.
"If, therefore, you believe from the evidence that defendant, in Hunt *Page 583 County, Texas, on or about June 26, A.D. 1914, did kill Harrison Choate by shooting him with a gun, believing at the time he did so that his wife was in danger of losing her life, or of suffering serious bodily harm at the hands of the said Harrison Choate, then, in that event, you will find the defendant not guilty, and so say by your verdict."
On the other hand, if as contended by the State, appellant took his gun and went to one side of the field, with the intention of taking the stock by force, and if deceased interfered with his wife in attempting to drive them out, to shoot and kill him, appellant did wrong. And if, after appellant took the gun out there, and Choat, as contended by the State, only endeavored to keep the mules and prevent appellant's wife from driving them out of the enclosure, and because he (Choat) did attempt to do so, he shot and killed deceased, he would be guilty of an unlawful homicide, and as the court submitted both murder and manslaughter, and the jury finds appellant guilty of murder, the evidence showing that ill-will existed between appellant and deceased; that he had been informed that Choat would not peaceably surrender the mules, and with this knowledge had permitted his wife and younger son to go after the mules without saying anything to Choat, and further showing that when they went, he armed himself with a deadly weapon, stationed himself where he could watch the parties, and when Choat either attempted to keep the mules from being driven out, or made an attack on his wife, appellant rushed in and shot deceased, we believe the jury would be authorized to find him guilty of murder, as they had necessarily found that Choat did not make an attack on his wife under the charge given by the court. And the physical facts on the ground sustain this contention, for they would show that deceased was some thirty feet in front of Mrs. Barnett and had never been nearer her than this; was armed with no weapon other than a hoe, and one could hardly assault another with a hoe, thirty feet distant, by striking at such person.
The criticism of some language used in the original opinion as to where appellant got over the fence and the direction he went, need not be discussed. It would be immaterial where he got over the fence, as the testimony and all the testimony, shows that when he did get over he went in the direction of Choat and shot and killed him. The only material issue at this point is, whether or not Choat was attacking the wife of appellant, or whether by his acts and conduct he led appellant to believe his life was in danger, and these issues were fairly submitted by the court.
The only other question presented in the motion for rehearing is that the court erred in submitting the question of appellant's right of self-defense, independent of his right to defend against an assault made on his wife. Appellant contends there is no evidence raising the issue of appellant's right to defend against danger or apparent danger to himself. Appellant testified to trouble at the barn over a mule, when deceased had said: "Well, G__d d__n you, I will beat the G__d d__n *Page 584 hell out of you." That he and deceased then had a fight, and deceased struck him with something hard, which he thought was a pair of knucks; that after they had been separated deceased had said, "I will whip the whole damned family." That his father had told him deceased had said he would kill him (appellant). That he tried to settle with deceased but could not do so, and deceased had told him, "I am not through with you yet, and if you don't come across I will whip you and your whole damned family off the face of the earth." It further appears that after this trouble appellant had notice served on Choat that he stood ready to comply with his (appellant's) contract with deceased, and unless deceased also complied with it lie would consider the contract at an end and take legal steps to countermand it. When Choat got the notice appellant says deceased came to see him, and said, among other things, "Well, I've taken the notice you sent me to a fellow and he tells me I've got you where I can make you come across, and by G__d, if you don't, trouble ain't commenced." He also says he was told that Choat had said, "that the first man that came down there or interfered with him in his crop, he was going to kill him." That Mr. Smith had told him about Choat saying that he would kill the first man who interfered with him in his crop, and that Choat was a dangerous man, and that he (appellant) had better be very careful; that Mr. Branch had told him Choat would hurt him; that he, appellant, ought to be careful for he (Branch) knew what he was talking about. He said Willis Bryant had told him Choat had said, "he could whip him (appellant) every morning before breakfast, and then do a day's work"; that Grady Branch told him he saw Choat cleaning up his gun and practicing with it. He also testified that Robertson had told him that Choat had trouble in Oklahoma, and had had trouble everywhere he went, and was a dangerous man, and one you would be likely to have trouble with any time. Many other instances are recited by appellant, and his conduct on occasions which would indicate that appellant had a right to believe his life was in danger from Choat, and that Choat was a dangerous man. On the day of the killing Mrs. Barnett testifies about going in the field after the mules; about Choat's conduct, and that just before the shooting she heard Choat call to his wife, "Bring it here — I will get part of them," and at that time it looked like Mrs. Choat was trying to get something out from under her dress. Appellant also introduced Mrs. Smith, Mrs. Middleton, Miss Pope, Mrs. Myrick, and Miss Browning, all to prove that Mrs. Choat had admitted to them she had a pistol under her dress at this time. This alone would authorize the court to submit self-defense from apparent danger to appellant. He and Choat alone had had trouble; the threats shown all went to show that it was appellant for whom Choat felt animosity, and the person he had threatened to kill. Appellant also testified that before the shot he heard deceased call to his wife, "Come and bring it to me, I will get part of them." That after the shooting and while Choat was lying on the ground, he saw Mrs. Choat with a pistol in her hand, and heard deceased again say, *Page 585 "Bring it here, I will get part of them yet," and he told Mrs. Choat not to give it to him, or he, appellant, would shoot Choat again. With this testimony in the record, and the testimony of the previous fight, threats to kill appellant, etc., if the court had not submitted the issue of his right to kill from apparent danger to himself, and his failure to do so complained of by appellant, we would feel impelled to reverse the case for that reason and the court did not err in submitting that issue to the jury.
This disposes of all the questions raised in the motion for rehearing. The State's evidence would show that appellant had also made threats after the first fight in the barn. On the day of the fatal difficulty Mrs. Choat says that after she and her husband returned to the field to work and found the mules in the field, that she remained in the field for about forty minutes working, and then went to their home for a rope with which to catch and tie the mules. That on her return she saw Mr. and Mrs. Barnett and their two sons, Padgitt and Jimmie. That Mrs. Barnett and Jimmie went down in the field, and she passed Mr. Barnett at the fence as she went into the field. That Mrs. Barnett and Jimmie got after the mules, and her husband also; that as she joined her husband she looked and saw appellant coming across from the field from the northwest. That before a word was passed appellant shot; that her husband then asked appellant to let him alone, but without saying a word appellant shot again and her husband fell. That her husband moved a little, and appellant called deceased a d__n son of a bitch, and said if he got up he would shoot him again, and he would teach him who to threaten, and for deceased not to say a G__d d__n word. Dr. Hennen said the shot entered the left arm, went into the arm pit and passed through, cutting several blood-vessels; that the wound was necessarily a fatal wound, and was made while the arm was down by the side.
We are of the opinion that the motion for rehearing should be overruled.
Overruled.