The only question raised by appellant on his motion for rehearing is what he claims is raised by the eighth ground of his motion for new trial. We quote that ground in full:
"The court erred in not instructing the jury that the defendant had the right to presume that the deceased was going to attack him with a deadly weapon." This, by all the authorities, is uniformly held too general to require this court to consider it. Ryan v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 878; Berg v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 884, and cases therein cited.
The appellant now claims that the evidence showed that the deceased was advancing toward the defendant with a gun at the time appellant shot and killed him and refers us to page 37 of the statement of facts. In the original opinion, we gave the full substance of the testimony and on this particular page of the statement of facts, we quoted fully and literally the testimony of the appellant in the original opinion. As we read and study this testimony the very reverse of appellant's contention is shown thereby. And, as stated in the original opinion, all of the eyewitnesses, some four or five in number, testified that at the time appellant shot deceased that the deceased had the butt of his gun standing on the ground with his hands up over the barrel in no attitude whatever to shoot. Appellant did not dispute this, and according to the State's witnesses, when the deceased was doing nothing *Page 636 at the time, appellant said: "Matters a God damn," and threw his gun down on deceased and shot him. So that even if we could consider appellant's assignment above, the evidence did not raise and the court should not have charged as therein claimed by appellant.
The motion for rehearing is overruled.
Overruled.