This case was affirmed at a previous day of this court and now comes before us on a motion for rehearing.
Appellant insists that this court erred in failing to pass upon the eleventh assignment of error, in his motion for a new trial, which assignment is as follows, to wit: "The court erred in his charge to the jury in failing to charge the jury upon the law of threats and in his charge on the law of self-defense in limiting the right of the defendant to cut and kill the deceased upon the appearance of danger to himself or serious bodily injury; when the law is, under the facts of this case, that the defendant was entitled to cut and kill the deceased, if it reasonably appeared to the defendant, viewed from his standpoint alone, under all the facts and circumstances of the case, that it reasonably appeared to the defendant at the time of the homicide that the deceased was about to carry his previously made threats to kill the defendant into execution. And the court's charge was error, in that he failed to submit to the jury the issue of the defendant's right to act upon the appearance of danger to himself, if it appeared to him, viewed from his standpoint, that at the time of the homicide that the deceased intended to carry into execution the threats against the life of the defendant which he had previously done and made." As insisted by appellant, we failed to pass upon this assignment of error. The statement in chief of the witness did not raise this issue, but we find upon redirect by his counsel, among other things, appellant said: "The deceased put his hand back to his hip pocket, and as he done that me and him clinched. I thought that he was going to shoot me, and I rushed on him and grabbed him. As soon as he put his hand towards his hip pocket there when we were scuffling, I tried to get my knife out of my pocket," etc. The court charged, as stated in the original opinion, upon the law of self-defense, but he did not charge, as appellant insists, upon the law of threats. Under the peculiar facts of this case, we think this was error, and it follows therefore that the motion for rehearing is granted, and for the error suggested, the judgment is reversed and the cause remanded.
Reversed and remanded.