A vigorous motion for rehearing has been filed in this cause, and while no authorities have been cited for the position taken, we recognize the force in the arguments made and have reconsidered the questions raised in said motion, though each of them was treated in the original opinion with a satisfactory conclusion.
It may be understood that two judges writing on a subject may reach the same conclusion and yet employ quite different language in doing so. Indeed, they may indulge quite different reasoning and yet be able to concur in the final conclusion. The manner of reaching it is the work of him who writes the opinion. The conclusion in the case is the judgment of the members of the court. It occurs to us that the motion filed herein discusses more forcefully the manner by which the conclusion was reached than it does the conclusion itself.
The chief complaint concerns discussion of appellant's Bill of Exception No. 14. A proper analysis of that bill conclusively shows that the court has followed a long line of authorities holding that where a bill of exception complains of the admission in evidence of matter which should be excluded and also *Page 602 of matter that was proper evidence, the court would be unable to differentiate and the bill will be held to be defective. This is not a technical rule but the proper rule long applied to the preparation of bills of exception. It may be that in some cases the rule would be an unnecessary one but in a wide range of experience of those who have preceded us, finding it necessary, have so laid down the rule. Branch's Ann. Tex. P. C., Sec. 211, p. 135, and authorities there collated; also Aven v. State, 77 Tex.Crim. R., 177 S.W. 82; McKinney v. State,80 Tex. Crim. 31, 187 S.W. 960; Davis v. State, 83 Tex. Crim. 545.
While it may be that the foregoing is sufficient to properly dispose of the motion, we are constrained to re-affirm the assertion in the opinion that the appellant's case is one of self-defense. Should it be considered that all of the testimony complained of in Bill of Exception No. 14 is "irrelevant and immaterial," it is not shown to be harmful to the appellant's cause. There is no indication that it was in any sense inflammatory or prejudicial, and in fact, the bill makes no such complaint. That being correct, it certainly is harmless.
The appellant's motion for rehearing is built largely on the theory that his defense was that he killed the deceased because of misconduct with appellant's wife. Viewed as a whole, the testimony on this subject is nothing more than a long series of details as to the discord existing between appellant and his wife, with a strained effort to involve the deceased in their domestic affairs, which we view as insufficient to raise such an issue before the jury. A climax had been reached in their trouble before Mrs. Halbert went to work in the home of the deceased. Her presence there is thoroughly justified by the evidence. If there had ever been an occasion for an outburst on the part of the appellant, his dealing with the deceased and the intervening circumstances could be no cause for the action which he took as a finality. The circumstances of that particular day and hour were insufficient, within themselves, to justify the slightest suspicion of misconduct between them. Appellant went over to the house armed for the purpose of killing the deceased if he found him in a compromising relationship with his wife. They were standing on the steps on the outside of the house. Another woman was present in the house. Appellant failed to find what he was expecting. He says he then shot the deceased under the deliberate belief that the deceased was about to take his life. The two defenses are incompatible, yet both were properly submitted to the jury — this by reason of a highly technical rule favorable to the defense. The fact that appellant had long been angry at the deceased because of *Page 603 their differences could not be sufficient to warrant taking his life under the circumstances of this case as reflected by appellant's own testimony as to the things that transpired, ending the final chapter of the sad drama. At most, he had only suspicious circumstances, too weak to warrant a conclusion of unfaithfulness by a wife theretofore true as he said and, with certainty insufficient to toll a human life. The matter of self-defense was properly submitted to the jury. They have passed on it and we consider that in doing so they have decided the case.
The motion for rehearing is overruled.