Appellant's motion for rehearing attacks, first, our conclusion that his bill of exceptions complaining of the overruling of his motion to quash the special venire should not be considered by us because not filed during term time. Without attempting to differentiate between a statement of facts heard in such a proceeding presented as a separate statement or incorporated in a bill of exceptions, a distinction which in our opinion does not exist, we observe that all matters of fact on this point as shown by the record are fully set out in our original opinion. Appellant's motion is strongly persuasive, but we regard the law of this question as having been so long settled by the decisions of this court, beginning with Black v. State, 41 Tex. Crim. 185, decided more than twenty years ago, as that we would be unwilling to attempt to unsettle a matter of procedure so well understood by the bench and bar of this State. Our legislature has passed laws upon the matter of bills of exception, their preparation, contents, filing, etc., in at least five separate enactments since the handing down of the decision in the Black case, supra, and has not seen fit to disturb the rule announced. This would seem to lend legislative sanction to the conclusion reached in that case.
Regarding appellant's other contention, we think the error of the charge complained of not calculated to injure appellant's rights. The matter is discussed fully in the original opinion and we only further observe that two theories of the case were made by the evidence: That of the State being that deceased was doing absolutely *Page 226 nothing when shot by appellant. That of the defense was that appellant was doing absolutely nothing when attacked by deceased who struck him over the head with a pistol, following up the attack by striking and shooting at him, and that said attack was actually in progress when appellant drew his pistol and fired the fatal shot. Under these facts appellant could manifestly have done nothing less than he did in an effort to protect himself, and he was beyond question the object of a violent and unlawful attack when he fired, if his testimony and theory of the case be true, and hence no harm could have resulted from the part of the charge complained of.
Being unable to agree with appellant, the motion for rehearing is overruled.
Overruled.