In disposing of the complaint presented in bill of exception number one, in our original opinion we used the following language:
"If appellant shot the deceased while the latter was advancing upon him with the bar of iron after appellant's gun had been fired twice, the last shot being fired in the direction of deceased, then appellant would unquestionably be guilty of manslaughter."
Appellant urges in his motion for rehearing that the view thus expressed could only be based upon the assumption that the testimony of appellant and his wife to the effect that the two first shots were fired accidentally, is untrue. The language quoted was used in connection with the discussion of appellant's complaint that the jury received evidence of a material character after retiring to consider their verdict. Whether what occurred in the jury room can be said to amount to the reception of additional evidence was not discussed. If it was not additional evidence but only the expression of a juror's opinion given in argument during the deliberation of the jury it would not be error even if appellant should be right in the contention that he now urges. No one was present at the killing save appellant and his wife and deceased. The body of deceased was found lying near the point where he had been milking his cow. *Page 248 Appellant and his wife testified that the gun in appellant's hands was fired twice by accident during a scuffle in which the wife was attempting to get the gun from appellant; that after the second shot which passed near deceased he got up from his milking and advanced toward appellant with a piece of iron drawn, at which time appellant shot him, and that deceased staggered back a few steps and fell. Upon the trial no evidence was introduced as to whether one shot as was deceased would fall in his tracks or as to the probability or possibility of him staggering back before falling. The case went to the jury upon the facts related. During the jury's deliberation the juror Cowie made the statement set out in our original opinion. The facts seem to bring the case fairly within the principle announced in Frazier v. State, 99 Tex.Crim. R., 268 S.W. 164 and Nelson v. State, 99 Tex.Crim. R., 270 S.W. 865. We think the expression complained of may be regarded as the opinion of the juror in argument in the jury room rather than as additional evidence.
The motion for rehearing is overruled.
Overruled.