In his motion for rehearing, appellant vigorously asserts that we erred in declining to sustain his objection to paragraph six of the court's charge wherein the court charged on mutual combat. He contends the evidence did not justify a charge on that issue.
A careful analysis of the testimony introduced by both sides convinces us that the court gave the correct charge. According to the State's theory the parties entered into a mutual combat until they had fought for some time. Twice they stopped, then renewed fighting. For the second round this seems to have been mutual. When the third round began the appellant and the prosecuting witness disagree as to which resumed the fight. Based on what took place, the appellant contends that his kicking his adversary was in self-defense. According to the prosecuting witness this was an unprovoked assault while he was looking in another direction. The court properly charged on both theories. Appellant has no complaint that he charged on mutual combat because the State's evidence clearly raises the issue. *Page 152 He then charged on self-defense, conditioned that the jury find against the State's theory of mutual combat.
The motion for rehearing is overruled.