We have examined this record in connection with the motion for rehearing and still are of the opinion that the facts are sufficient to support the conviction for manslaughter. It is unnecessary to review the facts. The criticisms of the opinion selects a few expressions here and there instead of taking it in its entirety. For instance, the motion makes this statement: "In the opinion rendered by the honorable judge in this case he states `both armed themselves the day of the killing.' We respectfully refer the court to the case of Duke v. State,61 Tex. Crim. 19, in 133 S.W. Rep., 432, p. 435, in which the court says: `Defendant, whose life has been threatened, has a right to arm himself and to shoot if attacked and his so doing does not deprive him of self-defense.'" The quotation from the Duke case is the law, but not applicable here. The facts in this case are unquestionably proved by the defendant's witnesses that he armed himself upon being informed of the fact that deceased had threatened him and was hunting him, and it is made incontrovertibly to appear that deceased was armed. Of course the defendant has a right to seek his adversary and demand an explanation under appropriate circumstances, and to arm himself against any probable attack. At this late day this proposition would not be questioned. But there are different ways by which one antagonist may seek another. If he seeks him for the purpose of killing him, or bringing on a difficulty with him by which he may be killed, or inflicts serious bodily injury, or to provoke him into a difficulty for the purpose of doing either, he can not invoke the doctrine of self-defense. He has a right to go to his adversary and demand an explanation, and if the adversary attack him, his right of self-defense may not be compromised. This question was fully discussed and decided in Shannon v. State,35 Tex. Crim. 2. Appellant rather loses the point of this legal proposition, if there was any merit in it from his viewpoint, by this statement: "We will admit that the question of self-defense was not raised in this case." If the law of self-defense was not in the case, or if the facts did not raise the issue of self-defense, the doctrine above invoked by him in the Duke case and Shannon case, and that line of cases, is not applicable. The issue of self-defense must be in the case in some way to invoke any proposition applicable to the law of self-defense. It is not the purpose of this rehearing opinion to go into the merits of the testimony, or to discuss the doctrine of the Duke case.
We reviewed the question of newly discovered testimony in the former opinion and deem it unnecessary to discuss it. The question of threats made by the deceased seems not to have been controverted, at least it was amply proved, and the fact that deceased armed himself was known to appellant, and to meet these matters appellant armed himself and shortly afterwards found the deceased. The fatal difficulty then occurred. *Page 387 It seems that the proposition mainly relied upon in the trial court, in reference to newly discovered testimony, was not a legal but an equitable one as contended in the original brief. The newly discovered testimony, if it had been before the court, was to the effect that deceased had rented a pistol on the day of the homicide and prior to the tragedy, and had gone about the city in an auto hunting appellant. This was known to appellant, or could have been evidently from the testimony, which is sufficiently collated in the original opinion, and the witnesses by whom these facts could have been proved were at the trial, and one of them testified that deceased wanted to borrow money from her with which to rent a pistol or buy it. Appellant, of course, was then apprised of the fact, and it became his duty at once to investigate these matters. There seems to be a direct want of diligence on his part to follow up this matter, to ascertain whether or not deceased did in fact rent a pistol from a pawn-shop.
Believing there is no real merit in the application, the motion for rehearing is overruled.
Overruled.