The state's motion urges that we erred in each of the points on which this case was reversed, replying to which appellant insists that our action in the reversal was correct. A trial for murder at a former time, with conviction of manslaughter, which was reversed on appeal, left in the case only the issues of manslaughter, or a killing in self-defense. The verdict again being for manslaughter, errors in the charge submitting that offense would not demand consideration unless same in some way injuriously affected the question of self-defense.
Noting paragraph five of the charge, quoted in our original opinion, wherein the court applied the law of manslaughter to the facts of the case, we have again carefully examined each part thereof in view of the insistence in appellant's argument, in reply to the state's motion, that same was in some way calculated to draw the minds of the jury away from his plea of self-defense, but are unable to find support for such complaint. The trial court told the jury therein that they must believe beyond a reasonable doubt that appellant killed the deceased, and if so, and they further believed he had been informed that deceased had threatened to kill him and believed such information, and that the parties met, and if they believed that by reason of such information, taken together with all the facts and circumstances in the case and considered in connection with the language and conduct of deceased at or just before the killing, or if from any or all the facts and circumstances in evidence there was aroused in the mind of appellant such a degree of rage, anger, etc., and in that condition he shot and killed deceased, "and that he was not justified in so doing", then they would find him guilty of manslaughter. In our former opinion we stated that this paragraph of the charge *Page 196 placed upon appellant a greater burden than was proper. Keeping in mind that this conviction was for manslaughter, the only part of said paragraph which placed any burden at all in other regards upon appellant was the phrase "and that he was not justified in so doing." If the trial court, in lieu and instead of said expression, had told the jury that they should convict the accused of manslaughter if they believed those facts existed making out such offense, and, further believed "that he did not act in self-defense", this would hardly be urged as placing an unnecessary burden upon the appellant. Such we believe to be the legal effect of the expression used in the charge, and have concluded that we were mistaken in holding that same placed an unnecessary burden upon the accused. It is manifest that the jury could not convict him of any offense unless they believed beyond a reasonable doubt that he was not justified in shooting deceased.
Referring to the second point deemed erroneous in our original opinion, a more careful examination of the record shows that the court, out of abundance of caution, gave appellant's special charge No. 1 which was of similar import and substance as special charge No. 5, which was referred to in our opinion and the refusal of which was deemed erroneous. We overlooked the fact of giving same, which obviated the necessity if any existed for giving special charge No. 5.
Upon the other point considered and deemed erroneous, we observe that appellant was convicted of robbery in 1908 in Arizona and in October 1912 was granted a pardon, though apparently he was not restored to citizenship until 1920. This homicide occurred in August, 1920, something over seven years after he was released from the Arizona penitentiary. His indictment and first trial occurred soon after the killing. State witness Roberson testified on said trial that in a conversation had with appellant the latter referred to said conviction and incarceration. On the instant trial said witness testified without objection to the same facts, and later, at the instance of appellant, his testimony in this regard on a former trial was introduced. Manifestly testimony that the accused, who was a witness in his own behalf, had been in a penitentiary seven or eight years before for robbery, was permissible as affecting his credibility as a witness. We are not led to believe if following a conviction there was an appeal and reversal, which legal process has occupied two or three years, that upon another trial the testimony as to his conviction or incarceration should be held inadmissible. We think there was no error in the action *Page 197 of the learned trial judge in limiting this testimony to the sole issue of the credibility of the accused, if the jury believed said testimony so affected same. Nor was there error in refusing the special charge asked by appellant seeking to have the jury told that they could not consider such testimony for any purpose.
A picture of deceased was introduced in evidence and was shown to be a faithful likeness of deceased as he appeared some three years before the killing. There is not a word of testimony in the record remotely tending to show that there had been any change in the appearance of deceased during that time. We are not able to find any issue before the jury, the determination of which could have been hurtfully affected by the introduction of said picture. Appellant was given the lowest penalty allowable under the charge. There was abundant testimony in the record upon which the jury might have been justified in giving him a much more severe penalty.
Appellant claimed that when he called deceased to come to where he was, he came with his hand in his pocket and refused to take his hand out of his pocket upon appellant's demand; that after deceased refused to take his hand out of his pocket he, appellant, slapped deceased and drew his gun and shot a number of times. He asserted that he believed deceased had a pistol and was bringing it out of his pocket for the purpose of using it, when he fired and killed deceased. This raised the issue of self-defense, but the state's testimony against same was overwhelming, and we confess ourselves unable to perceive how the appellant's rights in this regard could have been injuriously affected by the introduction of the picture, even though there had been much or little change in the appearance of the deceased during the three years intervening between the homicide and the taking of said picture.
Being of opinion that we erred in our reversal of this case, and that the state's motion for rehearing should be granted, the judgment of reversal is set aside, and the judgment of the trial court herein is in all things affirmed.
Affirmed.
ON MOTION FOR REHEARING BY APPELLANT.