We did not discuss appellant's second bill of exceptions because we saw in same nothing of merit, and nothing suggesting possible harm to the rights of appellant. Appellant's case of self-defense rested entirely on the theory of apparent danger based on testimony that deceased had a pistol on his person, and was fumbling in his overcoat pocket when appellant shot him. Whether deceased had the pistol to use in an attack on appellant, or for self-defense, or for any other purpose, — could not affect or defeat appellant's right to act on the reasonable appearance of danger. The fact that the son of deceased was permitted to testify that his father began carrying a pistol twenty or thirty days before his shooting, because of a difficulty with some other person than this appellant, could have neither added to nor taken away from the appearance of danger as same appeared to appellant from his standpoint at the time of the shooting. The two men met, and deceased had his hand in his overcoat pocket. Appellant claimed that deceased was fumbling in his pocket, and that he feared he was going to shoot him, and drew his pistol and shot deceased. As a matter of fact, shown without dispute in testimony, — the pistol had by deceased was in his hip pocket. The hand whose fumbling motion appellant said caused him to fear, and to shoot, was in the overcoat pocket of deceased, which was found to have in it a flash light. We find nothing in any complaint appearing in appellant's supplemental transcript.
Being unable to agree with any of appellant's contentions, the motion for rehearing is overruled.
Overruled.
MORROW, P. J., absent. *Page 59