We have considered the questions raised in the motion for rehearing in the light of its interesting oral presentation by counsel.
The criticisms of the court's charge, while not discussed in detail, were not overlooked on the original hearing. We yet hold the view that it was not subject to any of the faults pointed out in the exceptions.
Paragraph 11a is assailed as a restriction upon the right of the appellant in failing to make available the law of apparent danger. The paragraph mentioned is one in which the jury was instructed upon appellant's right to arm himself and seek an interview with the deceased for a peaceful and lawful purpose, and therein it is said:
". . . and if you believe from the evidence that the defendant so approached the deceased, with such purpose in view, and that when he did so, if he did, the deceased made an attack upon the defendant with a rock, if he did so, and that the defendant, acting in his self-defense as hereinbefore defined, shot and killed the deceased, or if you have a reasonable doubt as to whether he so acted or not you will give him the benefit of such doubt and find him not guilty."
Immediately preceding the paragraph mentioned, in Paragraph 11, the jury was thus instructed:
"Now, if you believe from the evidence that the defendant shot and killed the deceased, and if you further believe that at the time he did so it reasonably appeared to the defendant, viewing it from his standpoint, under all the circumstances preceding and surrounding him at the time, that the deceased was about to make an attack, or was making an attack on him with a rock and the defendant at the time shot the deceased, if he did so, believed that he was in danger of being killed or suffering serious bodily injury at the hands of deceased, then the defendant was not bound to retract, but had the right to shoot deceased and to continue to shoot until he believed himself out of danger, and if you believe the defendant so acted in shooting deceased, if he did so, or if you have a reasonable doubt whether he did so act, you will acquit him and say by your verdict `Not guilty.'"
From the State's standpoint, as developed by its witnesses, there was no demonstration made by the deceased. According to the version of appellant and his witnesses, the act of the deceased at the time of the homicide upon which he predicates the theory of self-defense is that upon his coming into the field where deceased was picking cotton, appellant spoke to him and deceased threw off his sack and stooped down and picked up a rock, and as he came up the appellant shot. Appellant, after detailing various previous difficulties, one on the same day, in which deceased had drawn a knife on him, *Page 565 said: "When I got back to the field I walked up to six or eight feet of Oscar Shelton, he was picking cotton. I walked up and said: `Well, Jackie, it seems like we cannot get along,' and about that time, with an oath, he threw his sack off, stooped down and picked up a rock and started to throw it, and I pulled my revolver and fired the first shot because I thought he was carrying out his threat. I thought he was going to kill me with the rock." The act of deceased, as described by the appellant, would seem to have passed beyond the point of preparation for attack and reached the point which called upon appellant to defend against actual danger. Simmons v. State, 55 Tex. Crim. 448; Cavil v. State, 25 S.W. Rep., 628. We note that the extent of the force used in repelling the attack is not involved.
In submitting the law of provoking the difficulty as a qualification of the right of self-defense, the court did not depart from the principles governing that issue but chose language which, so far as we are able to discern, was in full consonance with approved precedents.
In his motion for rehearing appellant says:
"The jury are in substance instructed in the XII paragraph of the charge that if they find that the appellant provoked the difficulty for any purpose, he has no right of self-defense, but must be convicted of murder or manslaughter."
The charge told the jury, in substance, that if the appellant, with intent to kill the deceased or to do him injury by some act reasonably calculated to bring about the occasion and thereby provoke the deceased to attack him, he could not use the attack thus provoked to justify the homicide, but under such circumstances would be guilty of murder or manslaughter, according to the intent with which he acted. In conveying this information to the jury, the language selected by the court was in substance like that quoted and commented upon in other cases. See Woodward v. State, 54 Tex.Crim. Rep.; Young v. State, 53 Tex.Crim. Rep.; Robertson v. State, 83 Tex. Crim. 244; Mason v. State, 88 Tex.Crim. Rep..
The charge on the law of provoking the difficulty was not wrong in that it made the jury understand that if appellant fired the fatal shot in defending against an attack which he had intentionally provoked by the use of means reasonably adapted to that end with the intent to kill the deceased or do him serious bodily harm, his offense was murder, but if he had no intent to kill or do serious bodily harm, but intended to do some lesser harm, he still would not have the perfect though he might have had the imperfect right of self-defense. Jones v. State, 17 Texas Crim. App., 611; Branch's Texas Crim. Law, Sec. 464. In framing the charge to convey this information to the jury, there was no error. It is appropriate in connection with the charge upon this subject to instruct on the converse of the State's theory. Mason v. State, supra, and authorities therein cited. The failure of the court to do so in the instant case was not made the basis of *Page 566 complaint in an exception to the charge. Doubtless if it had been, the charge would have been made more specific in that respect.
The motion is overruled.
Overruled.