*406ON MOTION FOR REHEARING.
LATTIMORE, Judge.Appellant insists that it was erroneous for the court to refuse to grant a motion made by him before any evidence was offered, and without setting out in his said motion the evidence referred to, — the purpose of the motion being to secure an order from the court directing the state’s attorney not to bring out upon the trial any facts concerning or describing the death of the party for whose murder appellant was on trial, or what was then said by deceased or any other person. In our opinion one accused of murder can not come into court and admit that he does not dispute the fact that the deceased came to his death from wounds inflicted by the accused, and upon such admission demand an order excluding in advance of its offer upon the trial, evidence generally referred to therein, which might appear competent and material when offered later and during trial. The correct rule is stated in Couch v. State, 93 Texas Crim. Rep., 36, 245 S. W., 692, viz: that the state could not be bound by a matter stated in an ex parte motion without being offered an opportunity to present the matters therein referred o. Proper practice would have been when the matter thus deemed objectionable was offered by the state, if at all, to then have the jury retired and the matter heard by the trial court and its admissibility then passed on, and if the ruling be adverse to the accused he can bring such ruling forward by proper bill of exception for review by this court.
The next ground of the motion is that we erred in upholding the action of the trial court in refusing to submit to the jury the issue of self-defense on the part of appellant against ah attack by deceased, and as supporting this contention he refers to certain testimony put before the jury by the state. We have examined same carefully. We think appellant misapprehends the purpose and legal effect of the testimony referred to. It appears that appellant’s daughter, a witness for the defense, testified to movements of the deceased just before the shooting which would tend to put deceased at a point corroborative of appellant’s claim that he did not shoot at or intend to shoot deceased, — but only shot at the father of deceased and accidentally struck deceased. In this condition of the record it appears that the state then offered a part of a statement made by this witness immediately after the shooting in which she testified to apparently a different state of facts from that given upon the trial. This was offered by the state evidently for the purpose of impeachment, and would not afford basis for appellant’s present claim that it supports the proposition of self-defense against an attack by deceased.
In his extended argument, in support of his motion, appellant further insists that we were wrong in our disposition of his bill of exception No. 13, complaining of argument of the state’s attorney made in discussing the court’s charge. We have carefully reviewed the facts of the case with a desire to see if there be possibility of harm to appellant from said *407argument. Without approving the statement made by the district attorney, we are not led to believe same capable of misleading the jury who were expressly told in the charge of the court below that they must receive the law from the court and be bound to follow that law as given in the charge. In Gallagher v. State, 55 Texas Crim. Rep., 50, 115 S. W., 46, there was no discussion of the argument made by the state’s attorney, and no expression in the opinion, as we understand it, different from what we have here said.
Not being able to agree with any of the contentions made by appellant, his motion for rehearing will be overruled.
Overruled.