In his motion for rehearing appellant complains of the part of the opinion in these words:
"It is not within the contemplation of Article 1102 of our Penal Code, which justifies a homicide by the husband when the deceased is taken in the act of adultery with his wife, if such killing take place before the parties separate — that one may plead self-defense for a homicide upon such ground, when the testimony raising the issue goes no further than to place the wife and the deceased together in a public street, or in a public car on the street. We cannot sanction the proposition that one may be justifiably killed under the authority *Page 368 of Art. 1102, supra, in whose lap appellant saw his wife sitting in such car prior to the time the parties alighted from said car."
Stress is laid on the use of the word "self-defense." The word "justification" should have been incorporated. This correction has been made in the original opinion. We adhere to the proposition that the evidence in the instant case is not of such cogency to bring into operation Article 1102 of our Penal Code, which provides:
"Homicide is justifiable when committed by the husband upon the person of any one taken in the act of adultery with his wife; provided, the killing take place before the parties to the act of adultery have separated."
No departure is implied from the decisions heretofore rendered in which it is stated, in substance, that the statute may be brought into operation by reasonable appearances, viewed from the standpoint of the accused. Price v. State, 18 Tex.Crim. App., 474; Massie v. State, 30 Tex.Crim. Rep.; Morrison v. State, 39 Tex.Crim. Rep.; Dewberry v. State, 74 S.W. Rep., 307.
The motion for rehearing is overruled.
Overruled.