The appellant in this case was convicted of murder of the second degree, and his punishment assessed at twenty years' confinement in the penitentiary. The record contains 106 pages of closely written matter. It is unnecessarily voluminous, containing a great many immaterial things. If the State's theory be correct — and it is very cogently supported — appellant was guilty of murder of the first degree. Appellant relied upon self-defense, bottomed alone upon his own evidence (he having testified in the case). The State does not concede that his version of the facts attending the homicide is correct, but contradicts him by at least two eye-witnesses, who swore to facts which place him in the attitude of an assassin, and, in support of these witnesses, refers to his confession made to Bridge and Reece. But, conceding that defendant's version is correct, the State replies that he is estopped from pleading that his life or body was in danger, because he did that which, if not intended, was in its very nature calculated to induce the deceased to do just what he did do, and that appellant must *Page 344 have known and did know, that his own violent conduct caused the deceased to act as he did, and this was known to appellant before he shot. A.'s life is threatened by B. A. arms himself with his pistol, and goes into the house of B, pistol in hand, ready for immediate use, and remarks to him: "I understand that you intend to kill me." B. moves his hand to his side. A. shoots, and kills him. Under this state of case, B. would have been excused if he had drawn and fired. But what, in fact, was appellant's intention when he entered the saloon, or why, or for what reason did he kill deceased? It is true, he states that deceased threw his hand to his side, and that he was moving towards the counter, and that he feared that his purpose was to obtain a pistol. Concede all this. Concede that appellant believed his life in danger, that in fact deceased was attempting to procure a pistol for the purpose of killing appellant, and that appellant so understood his conduct. Still, his own violent conduct was not only calculated to induce deceased so to act, but was the natural result of the conduct of appellant. No rational man could have expected anything else than a resort to deadly weapons. And while it may be true that appellant had good reason to, and did, from the conduct of deceased, apprehend danger to his life, etc., yet he knew that his own acts had caused the danger. But why did appellant kill deceased? He answers this question by deliberately stating that he did not kill deceased because of the insulting language towards his female relative, but because he (deceased) had threatened to kill him. If this be true, all that deceased did ceases to be a factor in self-defense. Why? Because the acts of deceased did not induce appellant to kill him, he being killed because he had threatened to kill appellant. We have, therefore, this simple proposition: A. threatens to kill B.B. arms himself; goes into the house of A., and kills him, because he had threatened his (B.'s) life. There is neither manslaughter, self-defense, nor anything else short of murder, in this state of case.
There was no objection made to the charge when given, and, if not strictly correct, the imperfections were not calculated, under the circumstances of this case, to remotely prejudice the rights of the appellant. That deceased had killed a negro was proven, and that appellant would have been a good witness for the prosecution was also shown, but the minute circumstances of this homicide were not material. All of this matter was introduced in evidence for the purpose of showing a motive for the killing of defendant by deceased, and hence to corroborate appellant's version of the facts attending the killing. Let this be conceded. Deceased was killed, not because he made motions with his hands, or moved towards the counter, but because he bad threatened the life of appellant. We have examined closely all of the bills of exceptions, and believe them without merit. The matter elicited by the State from the wife of appellant was germane to her testimony in chief. There is no reversible error in this record, and the judgment in affirmed.
Affirmed. *Page 345
ON REHEARING.