A careful review of the facts fails to convince us that there was any evidence of threats such as called upon the court to submit the law applicable thereto. The exception to the court's charge for its failure to submit such law is as follows:
"There is evidence in this case that certain persons known and unknown to the defendant had made threats to inflict injury upon the brothers of defendant and the defendant; that there is no mention of said threats nor any charge as to the law upon threats as to the brother or brothers or the defendant in this case."
The only threat, if such it might be considered, in this testimony was a reference to something said by a brother of deceased concerning a brother of appellant, but the facts before us do not measure up to the universal requirement that before one can use a prior threat as justification for an assault, or demand that the law of threats be given to the jury, it must appear that the deceased, or — we might add in a proper case — some one acting with deceased, did or said something indicating a purpose to execute such threat. The brother of deceased to whom is attributed the supposed threat, was not connected with what occurred at the fatal encounter herein, and we see no reason for changing our views in this regard from those announced in the original opinion.
It is urged that proof supporting conviction of any grade of homicide higher than manslaughter, is lacking — and for that reason a new trial should have been granted. The evidence pro and con on this issue has been again reviewed. Passing over the statement admitted to have been made by deceased in his dying declaration, and which is correctly held in our former opinion not to be sufficient to reduce the homicide to manslaughter, we observe that Richard Douglass swore that deceased, after making whatever statement he did, backed away from appellant and his crowd, shaking his finger at them and saying that he would fight them one at a time; *Page 339 that deceased had nothing in his hands. That at this juncture appellant's father struck at deceased, who threw up his hand, and appellant then said, "Let me have the damn s_n of a b___h," and stepped in front of his father and shot. Mr. Dedmon swore that deceased came up to where he was and after making some inquiry about the trouble, went over and said something which witness could not understand, and then began backing away, followed by the Atkins, father and three sons. That deceased said if they would fight him fair he would fight them one at a time, and at this time appellant said, "Let me take him" and stepped around and shot. Others gave substantially the same testimony. The fact that this was controverted by appellant's witnesses is no reason for our holding that the jury erred in deciding the issue thus made in favor of the theory of the state.
Being unable to agree with the contentions of appellant, the motion for rehearing will be overruled.
Overruled.