ON MOTION FOR REHEARING.
HAWKINS, Judge.Appellant insists that the trial court committed error in not charging on negligent homicide, and that we were wrong in our original opinion in holding that such theory was not supported by the testimony. As touching the point raised we again summarize the evidence as we understand it. .
Appellant and deceased appear to have met upon the day of the homicide by accident. The difficulty between them was occasioned by appellant having reported that deceased had burglarized a store, or, at least, that deceased believed appellant had made such report. The wife and sister of appellant had gone to the home of a relative on the Sunday evening on which the homicide occurred, and appellant seems to have gone there for the purpose of returning home with his wife and sister. He found deceased at the house. Soon after appellant entered deceased referred to him as that “snitching s— of a b — ,” whereupon appellant slapped him. A fight ensued, the details of which are not altogether agreed upon by witnesses for the state and appellant. Appellant claimed that deceased struck him with brass knucks, knocked him down, then “stomped” him in the side. This was denied by the state’s witnesses. At any rate, appellant was worsted in the fight and was considerably bruised and bleeding as a result thereof. He left the house, saying, according to the state’s witnesses, that “he was going to get a gun and return and kill the s— of a b- — .” This statement attributed to him by the state’s witnesses was denied by him and his witnesses. He secured a pistol and did return in about ten minutes, and apparently thought "deceased was being taken away in a car which Was in front of the house. He turned the lights on in the car and made inquiry about deceased, having the pistol presented in the car at the time. He then went immediately' upstairs to the apartment where the fight had occurred, and into $he room where deceased was lying on a cot. He fired three shots. It is .agreed by all parties that the first shot was fired into the ceiling; it therefore, could not have been the one that struck deceased. It is also agreed that the second shot was fired down towards the floor. The direction of those two shots is accounted for by the state’s witnesses upon the ground that they were holding appellant and undertaking to take the pistol away from him, to prevent him from shooting deceased. On the other hand, appellant claims that no one was holding him and that he fired the first shot in the ceiling and the second one towards the floor to deter deceased from continuing to advance upon him. Appellant says he does not know *399where he fired the third shot. The theory of negligent homicide is built around the proposition that the second shot struck a stool; that the course of the bullet was deflected and struck deceased. It was the theory of the state that this deflected bullet did not strike deceased, but struck the wall some five or six feet above the floor, and that the third shot struck deceased while he was lying on the cot, went through his body, through the cot, and struck the door facing some eight inches above the floor. Two state’s witnesses testified that this bullet had blood on it. On this trial the state introduced as an admission against him the testimony of appellant given upon another trial, in which he then said, “No. The second bullet did not hit him. It was the third one.” We still express doubt whether under the facts the issue of negligent homicide was raised. The failure of the court to charge upon that subject was complained of by exception to the court’s charge only, no special instruction being asked upon the subject. We mention this in view of the special charge appellant did request. At his instance the court gave the following special instruction. “You are further instructed that if you believe from the evidence that if the deceased was struck by a bullet from the defendant’s gun, but you further believe that the defendant did not shoot at deceased but fired his gun to deter deceased from attacking him, the defendant, and that in so firing his said gun, the bullet therefrom struck another object and was deflected from its course and thereby struck the deceased, without intent on the part of defendant to shoot the deceased, and that the same was an unavoidable accident, or if you have a reasonable doubt thereof, you will acquit the defendant and say bv your verdict, not guilty.’ ”
In the foregoing instruction is contained the elements of negligent homicide, save that the shot was fired carelessly or negligently, and that there was apparent danger of causing the death of deceased. If the jury had believed that appellant did not shoot at deceased, but that the bullet which killed him struck another object and was deflected from its course and thus caused to hit him without intent on the part of appellant to kill, it would have been the duty of the jury under the instruction given to have acquitted appellant. They found against appellant on some of the indispensable issues which would have been presented in a correct charge on negligent homicide.
“Negligent homicide” consists in the doing of an act, lawful or unlawful, in a careless or negligent manner, when there is apparent danger of causing the death of the person killed or some other, but with no apparent intention to kill. P. C., arts. 1230-1235. The instruction given the jury at the request of appellant omitted the elements of “apparent danger” necessary in negligent homicide, but authorized an acquittal, although the act of firing might have been due to the negligence of appellant, and upon the facts was more favorable to the accused than would *400have been a charge on negligent homicide. With the instructions given the jury at the request of appellant before them, an instruction upon the law of negligent homicide would have necessarily been contradictory and confusing for the reason that the instruction upon negligent homicide would have informed the jury in effect that though the death of the deceased was brought about by accident, it would, nevertheless, have been criminal if there was “apparent danger” of killing the deceased. As stated above, the propriety of a charge on negligent homicide on the facts, would, in any event, be a matter of extreme doubt; but having given the charge quoted above, no doubt is entertained that reversible error was not committed in the refusal to instruct the jury on the law of negligent homicide. Reference is made by appellant to the Mitchell case, 36 Texas Crim. Rep., 278, and others, illustrative of the well-established principle' that in the case of an assault, as in other cases, issues formed by the evidence, can not, over objection, be ignored in the charge. The principle is perfectly sound and has often been given application. Whether the facts in a given case are such as bring the principle into operation is a matter upon which minds may differ. Schrimscher v. State, 36 Texas Crim. Rep., 461. It is not believed, however, that the facts in the present instance bring it into operation. Even if that be doubtful, the instruction given the jury at the behest of appellant being, in the opinion of the court, fully adequate to protect his rights, a reversal of the judgment would not be justified. It is not every inaccurate charge that would demand a reversal. Such was the announcement of this court at a time when there was a statute which declared that an error in the charge to which exception was made required a reversal. Notwithstanding such statute, the court uniformly held that if there was no exception at the ' time of the trial, there should be no reversal unless the error was calculated to injure the rights of the accused. See Tuller v. State, 8 Texas App., 501; Bishop v. State, 43 Texas Crim. Rep., 390. The principle mentioned has since been embraced in the statute. Article 66, C. C. P., which has often been given effect in the decisions of this court. See Davis v. State, 107 Texas Crim. Rep., 397, for an example. Requested instructions have long been regarded as of weight in testing the sufficiency of the charge of the court given to the jury. See Moxie v. State, 54 Texas Crim. Rep., 529. It seems manifest that the charge written "by appellant’s counsel and given to the jury would have been incompatible with the charge on negligent homicide. In a charge on negligent homicide, one of the principal questions would be whether there was an intent to kill. The appellant, having in his special charge invited the court to submit that issue in the manner in which it was submitted, cannot reasonably complain of the failure to submit it in a different form. ‘Such is the announcement in many decisions cited by Mr. Branch in his Ann. Tex. P. C., sec. 1946, among them the following: Hall v. State, *40128 Texas App., 146; Carbough v. State, 49 Texas Crim. Rep., 453.
The other point urged by appellant in his motion for rehearing is that the court should have granted a continuance or a new trial based upon his refusal of continuance.
In a further careful review of the facts we have had this contention of appellant in mind. We cannot bring ourselves to believe that under the whole case the trial court can be said to have abused his discretion in overruling the motion for new trial based upon his refusal to grant the continuance. This subject was discussed at length in the recent case of Wiley v. State, 117 Texas Crim. Rep., 449, 36 S. W. (2d) 495, and many of the older cases were reviewed and cited. We cannot believe it reasonably probable that if the absent testimony had been before the jury a verdict more favorable to appellant would have resulted.
The motion for rehearing is overruled.
Overruled.