On a former day of this term of the court the judgment herein was in all things affirmed. Appellant has filed a motion for rehearing and insists that this court was in error in affirming the judgment because of the numerous errors committed in the trial court, and that this court was in error in holding that manslaughter was not in the case, and also in holding that the charge of the court on provoking a difficulty was not erroneous. Appellant also insists that this court was in error in holding that the grounds of the motion for a new trial upon the charge of the court, were too general to be considered, it being insisted that to object to a paragraph of the charge of the court on the ground that it did not charge the law was sufficiently specific to call the attention of the court to the error. We are not disposed to break away from the line of authorities, which seem to be uniform in this court, in holding that objections to the charge of the court will not be considered unless the particular point or error is set out in the motion for new trial, and that simply to say that the court below erred in paragraph one of its *Page 332 charge because the same was not the law, is too general. It must point out how or in what manner the charge was erroneous.
It is also insisted that this court was in error in holding that the trial court did not commit error in the admission and rejection of testimony as shown by appellant's bill of exception. We have reviewed carefully all the bills of exception in the record, and we adhere to our former holding, that the court below did not commit prejudicial error in the admission and rejection of testimony.
It is contended that the preliminary statement of the court in his charge to the jury in regard to provoking the difficulty, was erroneous, and that such error was prejudicial to the defendant. This portion of the charge is paragraph 24, set out in the original opinion. It may be conceded that this paragraph of the court's charge was erroneous, but when it is followed with an application of the principles of law governing the provoking of a difficulty, to the facts of the case, it will be seen that the charge is not subject to the criticisms of appellant. The court may have, in the preliminary statement of the definition of an offense, committed error, but when the court came to apply the law to the facts of the case, if then he stated the matter correctly, the charge would be relieved of serious criticism. In the case of Railsback v. State, 53 Tex.Crim. Rep., appellant was indicted for assault with intent to rape. When the court came on to define rape, he defined rape by force, threats and fraud, and also on a woman who is mentally diseased, and the carnal knowledge of a female under the age of 15 years, and this court held: "That this portion of the charge was erroneous and not called for by the facts of the case, under the indictment here presented, is, we think, evident. The indictment alleged assault by force, threats and fraud by appellant upon the person of Maud Harding. The proof in the case excluded any question of fraud and was mainly an assault to rape, if a crime at all, by force. Notwithstanding the inclusion of some matters in the definition of rape, having no relation to the charge made in the indictment or the evidence adduced when the court came to apply the law to the facts, the charge is, we believe, subject to no serious criticism." We, therefore, hold that while this preliminary statement may have been erroneous, yet when the court applied the law to the facts he presented all the legal elements of provoking a difficulty, and the preliminary statement could not have been injurious to the rights of the defendant.
Again, complaint is made of this charge because the court told the jury that if appellant provoked the difficulty with the intention to inflict death or serious bodily injury, he would be guilty either of murder in the first or second degree, the contention of appellant being that if appellant provoked the difficulty to inflict an injury less *Page 333 than death, then it would be only manslaughter, and that the court was in error in telling the jury that if he provoked the difficulty with intent to inflict serious bodily injury it would be murder. We have found no authority that upholds appellant's contention in this respect. Article 708 of White's Penal Code reads as follows: "Though a homicide may take place under circumstances showing no deliberation, yet if the person guilty thereof provoked a contest with the apparent intention of killing or doing serious bodily injury to the deceased, the offense does not come within the definition of manslaughter." Therefore, if the slayer provoked the contest with the deceased with the apparent intention of killing him or doing him some serious bodily injury, he is guilty of murder, although he may have done the act of killing suddenly, without deliberation and in order to save his own life. The law allows no justification in such a case, and no reduction of the grade of homicide below that of murder. If, however, he provoked the contest without any intention to kill or inflict serious bodily injury, and suddenly without deliberation did the act of killing, while the act would not be justifiable homicide, still it might be a lower grade of homicide than murder. See Green v. State, 12 Texas Crim. App., 445; Reed v. State, 11 Texas Crim. App., 509; King v. State, 13 Texas Crim. App., 277; Cartwright v. State, 14 Texas Crim. App., 486; Smith v. State, 15 Texas Crim. App., 338; Meuly v. State, 26 Texas Crim. App., 274; Polk v. State, 30 Texas Crim. App., 657; Jackson v. State, 30 Texas Crim. App., 664.
We do not believe that an authority can be found that holds that because appellant might have provoked the difficulty with intent to inflict serious bodily injury, that that would reduce the killing below the grade of murder. Do the facts in this case call for a charge on provoking the difficulty with an intent less than murder or of inflicting serious bodily injury? We answer, no. There is not a circumstance; there is not a word that would indicate that if appellant provoked the difficulty it was for any other purpose than to inflict death or serious bodily injury. For the court to have submitted an issue not raised by the testimony, would have been bringing into the case issues not authorized.
Therefore, believing that the original opinion is correct, and that there is no merit in appellant's contentions, the motion for rehearing is overruled.
Overruled. *Page 334