Appellant makes a number of very general objections to our original opinion, supported by no reasoning or citation of authorities. He complains that we erred in not holding it error for the trial court to refuse to instruct the jury in regard to his right to arm himself just before coming back to the car in which deceased was. The law is correctly stated in the original opinion. Where the right of self-defense is submitted in the charge unrestricted by any charge on provoking the difficulty, or any other limitation, it is not necessary for the court to submit a special defensive issue based on the right of the accused to arm himself and seek his adversary. The authorities will be found collated in section 1950 of Mr. Branch's Annotated P. C. There seems no deviation from this uniform holding.
There is renewed complaint at the failure of the court to submit appellant's defensive theory in an affirmative way. As we read the record, what appears to be appellant's defensive theory was affirmatively submitted. The court told the jury that if they believed from the evidence, or had a reasonable doubt thereof, that at the time of the homicide deceased was making an attack on appellant, or that it reasonably *Page 458 appeared to the appellant, from the conduct or acts or words of deceased, as viewed from the standpoint of the appellant at the time, in the light of all the facts and circumstances within his knowledge, that deceased was attacking or was about to attack him and that such conduct of the deceased, coupled with his words or threats, if any, caused him, appellant, to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such expectation or fear the appellant killed deceased, he should be acquitted. This appears to cover the defensive theory set up in appellant's testimony.
In view of appellant's insistence, we have again reviewed the testimony heard by the court below when the motion for new trial was presented, and are still unable to see any abuse of discretion of the lower court in overruling said motion. The two jurors, whose supposed unfairness and prejudice is made the ground of attack, both seem to have receded from their judgment as to the punishment which should be inflicted, and to have come to agreement with their fellows upon a lower penalty. The undisputed record shows that upon retirement and the first ballot taken thereafter, all the jurors voted guilty, and seven voted for ninety-nine years and five for the death penalty. Among those voting for the death penalty are the two jurors now asserted as having prejudice and ill-feeling against the appellant, and to have indulged in statements regarding him outside the record.
There seems no question at all of the fact of appellant's guilt, and the only question was the penalty. It would not be a very impressive proposition as supporting prejudice on the part of two jurors, that they came from a higher penalty to a lower, nor are we led to believe that anything was said by anyone in the jury room which brought before the jury any material matter affecting the rights of the accused.
The motion for rehearing will be overruled.
Overruled.