The reversal of this case was ordered chiefly for the error of the refusal of a continuance. By the absent witness threats of deceased to take the life of appellant, would have been shown, and also the fact of the communication of such threats to the accused prior to the fatal encounter. Article 1145 of our Penal Code expressly makes proof of threats admissible when one accused of homicide seeks to justify his act upon the ground of self-defense; and in every such case testimony that threats have been made and communicated to the prisoner, is considered competent. In the instant case appellant claimed self-defense, and that he shot deceased to prevent the latter from shooting him. He testified to a demonstration on the part of deceased, from which, if threats had in fact been made by deceased to kill him, it might be inferred that the threatened attack had then begun. There was a direct conflict between the testimony of the accused and that of the State witnesses on the question of whether the deceased made any demonstration prior to the time appellant fired the fatal shot. Such conflict strengthens the reasoning upon which must rest the right of the accused to the continuance sought. He testified that in immediate connection with the fatal killing he remonstrated with deceased for his conduct toward the wife of deceased, who was the sister of appellant, and to the fact that deceased said he would then kill him, and that he made a demonstration to get a pistol, and that because of such facts he shot and killed deceased. The State witnesses denied these facts. If shortly before said time deceased had tried to get a pistol from the absent witness, saying that appellant had nerve, and that he would take no chances with him but would kill him if he attempted to take the part of appellant's wife against him, this would not only be admissible but if believed by the jury must needs have greatly strengthened their belief in appellant's theory of the killing.
So believing we adhere to our view that the continuance should have been granted, and the state's motion for rehearing will be overruled.
Overruled.