The criticisms of the original opinion set forth in the motion for rehearing consist largely of objections to isolated expressions in said opinion. The statement in the original opinion which is as follows: "This condition was shown with all reasonable certainty to have been known to appellant, as deceased's condition was apparent on the day of the trial in justice court where appellant was present. We can see no error in the admission of this evidence," is criticized. The fact that deceased was badly hurt just prior to this homicide and that he moved about with difficulty, was material in view of the testimony of appellant's wife showing that deceased was advancing upon appellant with an axe at the time he was shot by appellant. It could hardly be claimed that a man who was well and sound and had full command of his physical powers, could be in any great danger from an axe in the hands of a man who was coming toward him dragging the axe on the ground by the handle, if the party so approaching and dragging said axe was so crippled in his leg as to hardly be able to move about. It is difficult for us to conceive how this condition of deceased could fail to be known and observed by appellant. We are unable to perceive any soundness in the objection to a question asked of the wife of appellant while a witness in his behalf, It being admitted that she made no answer to said question further than to deny the fact asked about. Certainly this could not be claimed as having elicited from the wife testimony against her husband of matters not embraced in her examination in chief.
In our original opinion we held that no error was committed by the giving of a special charge asked by the State presenting the law of provoking the difficulty. A review of the facts confirms us in our belief that it was proper for the court to submit said issue. It is shown that after the appellant and deceased had quarreled and appellant had cursed deceased a number of times and they had been urged by a party present to desist, that appellant walked off a little way and as deceased came by him, appellant again cursed deceased and struck him with a stick of stove wood, whereupon deceased seized an axe lying immediately in front of him and started toward appellant, dragging the axe by the handle. Appellant retreated a short distance and drew a pistol and shot and killed deceased. The books are full of cases holding *Page 88 that conduct such as that of appellant in this case called for the submission of the law of provoking a difficulty.
Finding no error in the original opinion, the motion for rehearing will be overruled.
Overruled.