I concur with Judge Morrow in the reversal of the judgment upon the ground and for the *Page 250 reason stated by him in his opinion granting the rehearing and reversing the judgment. I deem it unnecessary to review that question further than to state my concurrence.
I seriously question that the issue of provoking the difficulty was in the case under the facts stated in the record. I do not care to discuss that question at any length as it can not enter into a subsequent trial as it did on the former trial for the reason that the issue of murder has been eliminated from the case by the verdict of the jury. Upon another trial appellant can only be tried as a basis for conviction upon the issue of manslaughter. Jeopardy and former acquittal will bar further prosecution for murder upon a subsequent trial by reason of the verdict of the jury. The court will take judicial notice of this without the intervention of a plea setting up such acquittal. There are many decisions sustaining this proposition.47 Tex. Crim. 595; Robinson v. State, 21 Texas Crim. App., 160; Mixon v. State, 35 Tex.Crim. Rep.; Branch's Ann. P.C., pp. 318 and 321. The issue of provoking a difficulty, therefore, can not arise, so far as murder is concerned, even if provoking a difficulty is in the case. But should the trial court undertake to charge upon the issue of provoking a difficulty upon another trial, it should be followed by a charge on the law of abandonment of the difficulty. If provoking a difficulty was in the case, then I am clear that the issue of abandonment was also in the case. I am also of opinion that the court permitted too great latitude to the State in impeaching the character of the defendant with reference to the death of some Mexicans, and also the matter with reference to a negro on the train. Questions of this character should have some basis in fact and not be a mere assumption without basis of fact as a predicate for such questions and evidence. Unless there be some such basis upon another trial that evidence ought not to be admitted. This would depend upon the developments on the trial.
Believing that the motion for rehearing should be granted, and that the opinion of Judge Morrow is correct upon the question decided in his opinion, I fully concur in that and add the other matters above stated as my views.