Appellant says in his motion that we should grant him a rehearing upon the ground that the verdict was against the weight of the testimony, insisting that the State's own testimony herein showed appellant to have acted in his own necessary self-defense. We have again gone carefully *Page 271 over the testimony, but are not able to agree with appellant's contention. The witness Cole testified, at the instance of the attorney for the defense, that appellant said to him, in regard to the killing, that he had to do it. This testimony was not introduced by the State, and is in no sense chargeable to the State, and its introduction places no burden upon the State. The testimony shows that deceased was in his own home with a friend, who was an uncle of appellant, and testified as a witness for the defense in this case. Upon receiving information that his uncle was at the home of deceased, and that the two had been looking for whisky that morning, appellant went at once to said house. The uncle, a witness for the defense, testified that when appellant entered the house of deceased he said, in substance, "I am going to break up this party." Deceased was a veterinary and had a knife in his hand from which, according to the testimony of said uncle, deceased was removing carbolic acid stains. According to the admission of appellant, when he entered the house he told his uncle he wanted him to go out of the house and away. He testified that when he made this statement deceased said he was going to cut appellant's throat with his knife. Appellant said he then started toward the door, and that deceased advanced upon him and struck him with his fist, whereupon he turned and fired two bullets out of his pistol into the body of deceased, who seems to have died almost instantly. Deceased was an old man and a small man, while appellant was a much younger man and much larger. Appellant admitted that at the time he shot deceased they were six or seven feet apart. We observe that the testimony of appellant is contradicted in many respects by that of his uncle, who was also a defense witness. We do not think the verdict contrary to the evidence.
In the light of appellant's assertion in his motion that the court did not correctly apply the doctrine of reasonable doubt to the proposition of murder without malice, we have examined the charge in this regard. If there was anything in the complaint at the time the exception was taken, the charge was evidently changed before it became a filed paper herein. As the charge appears in this record, it pertinently applies the doctrine of reasonable doubt to the question of murder without malice in more than one place.
Being unable to agree with appellant's contentions, the motion for rehearing is overruled.
Overruled. *Page 272