The State has filed a motion for rehearing, together with an exhaustive analysis of the evidence pertinent to the issue upon which reversal was based, in which the evidence in the case of Mowery v. State, 105 S.W.2d 239, and Taylor v. State,179 S.W. 113, is reviewed and compared with the evidence relied on in the case now before us.
We have followed this analysis and the argument presented thereon, as well as other cases cited in behalf of the State's position, and are unable to agree that the contrasted facts so treated sufficiently distinguish the cases from the one now before us. We adhere to the belief expressed in the original opinion.
It would be difficult to state the facts in this case more clearly than is done in the original opinion. There is little conflict between the evidence introduced by the State and that by the *Page 70 defendant, so far as they pertain to material issues. It may be concluded from both that appellant's son had married a sister of the deceased. The brother was much incensed about this. Feelings had run high for some days. On June 4th deceased had a birthday and started out with friends for a celebration in which they spent some two hours at a beer joint on the Pedernales River, near Johnson City. Appellant, his son Weston Hays, and the latter's wife, together with another man and woman, passed by on the way to Johnson City. A short distance beyond the place a flat tire interrupted their progress. Appellant and the woman went on to Johnson City, but Weston Hays and his wife remained at the place for a considerable time. Deceased heard they were there and went across the river to the car and assaulted Weston Hays after treating his wife, deceased's sister, quite roughly. He then returned to the dance hall and there is evidence that he had some slight wound. Weston Hays was wounded in some manner from which he bled profusely. When appellant returned to the car and the tire was repaired, the party turned back towards Marble Falls. When they reached the dance hall where the car of deceased was parked, the driver of the car, appellant, and his woman friend wanted to stop and dance. The son and his wife did not want to stop because they saw the car of deceased parked there. This is shown by the State's principal witness. The car was driven some distance beyond the dance hall and parked by the side of the road. The son and his wife remained in the car. The others went into the dance hall. As they did so the deceased approached appellant and demanded to know where his son was. The things that followed are fully detailed in the original opinion.
There is not the slightest evidence that appellant and his son had entered into any agreement whatsoever, or that either of them intended to make any kind of attack on the deceased. The son had a gun — he had it the day before. He had done some talking about it, but there is no evidence that he threatened to do anything with it, and there is no indication that he intended to use it other than that he would probably defend himself against one of the repeated attacks by deceased. There is no indication that he used the gun or tried to use it on the first attack, at the place where he was waiting for the tire repair. Appellant did not follow the deceased out of the dance hall, as is argued by the State's brief on motion for rehearing. The State's witness testified that it was some two, three to five minutes from the time the deceased made his attack on the son until appellant came out of the dance hall. There is nothing in this to indicate that appellant was acting in conjunction with *Page 71 his son before he saw him engaged in combat with the deceased. The evidence shows that the deceased again treated Weston Hays' wife, his own sister, quite roughly; that he had chased her a short distance up the road; he returned to the car; went back towards her again; then came back to the car. This much time is certain to have intervened from the time the attack began until appellant started towards them. He had a right to go to the defense of his son under all of the circumstances of the case. As he did so the deceased attacked him. He knocked appellant down twice. Appellant secured his knife and cut at the deceased, inflicting only a slight wound or two, if any. The evidence in the case does not show whether the wounds which the deceased received, other than the shot, were inflicted when he first attacked Weston Hays or in the latter attack. It does not show that appellant inflicted them. Even so, he was clearly acting in the defense of himself and his son, under the State's evidence as we view it.
The State's argument summarizes the evidence in an effort to reach the conclusion that the parties had been acting together. The fact that Weston Hays did not use his gun when the first attack was made on him that afternoon is considered a circumstance. We do not so view it. There is no indication of a plan to make any attack whatsoever. To the contrary, it rather indicates a determination to endure as long as possible the abuse of the deceased. The subsequent conduct in trying to keep his father and the others from stopping at the dance place because he saw the deceased's car there, and wanting to drive on to Marble Falls, indicates his desire to avoid trouble. This circumstance would not justify the jury in reaching such conclusion as the State contends for in its argument.
Appellant went in the dance hall. Deceased approached him and asked where his son was. He refused to tell him and deceased then went out to look for him. The State argues, "It is not unreasonable to believe that this was not the conversation, but that appellant told deceased that Weston wanted him outside, or something of that kind, so that a difficulty would be immediately brought about." The jury would not be permitted to so speculate. There is no circumstance or any proof from any witness that would justify such deduction. If they took such view the evidence does not sustain them.
Argument is further presented to show that deceased only shook Weston Hays, or that they were merely scuffling. We view the evidence differently. The State's own witness tells of *Page 72 the first attack and pictures insulting conduct calculated to force Weston Hays into another combat. He took Weston Hays' hat and rubbed it in his face. This took place after the State's witness had insisted that the deceased had given Weston enough and that he should quit.
After the killing appellant told a witness that he was cutting deceased while his son was shooting. This fact was told by other witnesses. The cause for it was also revealed. He was defending himself from the deceased who had knocked him down. It has no force to support a prior agreement between appellant and his son.
Other discussions are commenced with such expressions as, "It does not seen unreasonable for us to believe" that he was doing so and so. In the absence of some evidence to so indicate, we think the jury would have no right to draw such conclusions. We fail to find sufficient evidence to create a suspicion favorable to the State's contention. A careful analysis of all the evidence in the light of the argument presented by the State confirms us in the belief that it is insufficient to support the verdict.
The State's motion for rehearing is overruled.