Appellant's motion for rehearing is predicated on the contention that the evidence is not sufficient to support the conviction for the offense of murder. The argument in connection with the motion seems to be based on the assumption that appellant's testimony regarding the homicide, if accepted by the jury, would not have justified a conviction. His claim upon the trial was that his wife had grabbed his pistol from the holster and shot him twice; that he ran *Page 99 into the yard followed by her, and that after he had been shot twice he secured the pistol from her, and because of his wounds became dazed and unconscious and that if he did kill his wife he had no knowledge of it until after he was apprised of the fact by the prosecuting officers after he had been taken to the hospital. Upon this point the court instructed the jury as follows: "You are further instructed in this connection that if you believe from the evidence, or have a reasonable doubt thereof, that the deceased inflicted serious bodily injury upon the defendant, and such injury was of such nature as to render the defendant incapable of knowing his acts or deeds, and under such condition he pursued and killed the deceased, it would not matter even though the deceased at the time was making no attack or attempting to attack the defendant or fleeing from the defendant to save her own life. Under such condition, you should acquit the defendant and so say by your verdict."
The jury found against appellant's contention on the issue there submitted. In determining whether the evidence supports the verdict it becomes the duty of this court to view the evidence in its strongest light from the standpoint of the State. See Mason v. State, 108 Tex.Crim. Rep., 1 S.W.2d 283; Jolly v. State, 87 Tex.Crim. Rep.,221 S.W. 279, and Notes under article 848, Vernon's Tex.Crim. Proc., vol. 3. A colored woman by the name of Maggie Wright gave the most connected account regarding the killing. She was sitting on the front porch of her home and testified that she could see perfectly to appellant's home and in his back yard. She was attracted to appellant's home by hearing the door slam and when she looked over that way appellant's wife was coming out from the porch toward the yard, followed by appellant. From this point we quote the witness' testimony. "Mr. Baird was behind her, and I heard two shots fired, and they were fired by Mr. Baird. I saw him at the time he fired those two shots. I saw Mrs. Baird. Mr. Baird had a pistol, and he was holding it and shooting toward Mrs. Baird. At the time of the shooting he was facing her, and she was just a short distance from him, about as far as from me to this table, about one good step. He shot twice. She screamed three times after the shots, after the two shots were fired, and then she fell. After she fell, Mr. Baird stooped over her, and another shot was fired, he stooped over toward her body, and another shot was fired. At that time she had fallen on the ground. After that I heard two shots, two other shots. When I heard those two shots, Mr. *Page 100 Baird's back was to me, he was standing, but when the last shot was fired he was kinder stooped, stooped something like this (indicating) and two shots were fired. When those two shots were fired Mrs. Baird was on the ground, and after those two shots were fired, Mr. Baird fell."
There is evidence in the record from other witnesses regarding the number of shots heard by them, which might have authorized the jury in reaching the conclusion that the first shots were fired in the house, and therefore, have weakened the testimony of Maggie Wright to that extent, but those are questions which this court can not determine. They are solely for the jury's consideration. Appellant seems to have been given every defensive or mitigating charge which arose under the testimony, and we have not been able to reach the conclusion that under the whole record this court would be authorized to set aside the verdict of the jury, which turns purely upon issues of fact.
The motion for rehearing is overruled.
Overruled.