ON MOTION FOR REHEARING.
MORROW, Presiding Judge.In the light of the motion for rehearing, both the law and the facts have been reviewed.
Robert McRay Wood, the deceased, was a young man about 20 years of age. His father was a tenant upon the farm of the appellant. On the morning shortly before the homicide, the appellant, in company with a negro, went in a wagon to the home of Lester Wood, a brother of the deceased, to get a corn sheller that had been loaned to Wood by the appellant. The deceased was on the premises. Shortly before the appellant left Lester Wood’s home, the deceased, walked out of the premises and out to a place where there was a gate leading to the public road and to where there was a mail box. Appellant claims that while the team was passing through the gate, the deceased called “whoa” and the mules stopped; that the deceased then accosted the appellant in a threatening manner and demanded of him a sum of money which deceased claimed was owing him by the appellant for services rendered. From the appellant’s testimony, it appears that on numerous previous occasions, the *293deceased, in a peremptory and threatening manner, had demanded the payment mentioned. He had been told by the appellant that the money had been paid to the father of the deceased. According to the appellant, the deceased had, on several occasions and upon that on which deceased met his death, threatened appellant by his manner and by his words, and deeming his life in danger, appellant fired three shots at the deceased and killed him.
The negro who was with the appellant gave testimony corroborative of the appellant’s description of the encounter in which the deceased was killed.
From his testimony, appellant advances the theory that the mules became frightened and that there was much excitement. The tragedy was seen by the witness Wright who testified for the state. The gate and mail box near which the deceased was killed were about 100 yards from the home of his brother, Lester Wood, who was also a tenant on one of the appellant’s farms. Wright was driving an automobile, and as he approached the gate where the mail box stood, he saw a wagon with two men standing therein. As he approached further he saw a man standing by the mail box. When Wright was about 240 yards from the gate, he saw the man standing on the ground throw up his hands, turn, and fall. Upon reaching the man, he recognized him as Ray (McRay) Wood. The evidence of Wright and others were sufficient to demonstrate that deceased was unarmed. Deceased was reached by Wright and Lester Wood about the same time.
It was shown by the testimony of a doctor that the deceased was shot near the center of the chin. There were two other wounds in the back near the spinal column.
Lester Wood’s testimony is in substance that while placing the corn sheller in the wagon the deceased walked away and went down a lane. After the departure of Ray Wood and the wagon, the wife of the witness called his attention to something that was happening. He looked through the window and saw his brother start towards the house. Just as the witness got to the window he heard a shot fired. He heard four shots fired, but heard none until after his attention was called to it by his wife. As he heard the fifth shot, he saw his brother attempt to get up, but after rising to his knees he fell over.
Mrs. Lester Wood, according to her testimony, was standing at the kitchen window and saw appellant shoot the deceased at the time he was standing near the mail box. When the first shot was fired, she heard Ray Wood scream and throw up his *294hands to his face. Before hearing Ray scream, she saw appellant point at him. She then heard a shot fired. She knew there were four shots fired but was not positive about the fifth. Upon hearing the first shot she screamed and her husband ran to the window.
On direct examination the appellant related in great detail various conversations upon which he predicated the claim that the deceased had hostile designs upon the life of the appellant. On cross-examination of the appellant the state was permitted to relate an occurrence in which the appellant, the deceased, and Roy Tims were actors. The appellant’s testimony upon the subject is in substance as follows: He visited Tims for a settlement of the rental. A quarrel resulted during the course of the settlement. Tims raised a row, used abusive language, and threatened the appellant. Tims said to the deceased who was present: “Let’s not let him get in his car.” The deceased did nothing. Tims was called by the state and gave his version of the incident. Appellant admitted that in discussing the incident with Tims he had said to the brother of the deceased: “Old man Tims pulled a bone-head cursing me over there at the house.” Appellant claimed that nothing was said by the deceased.
The importance of the incident with Tims apparently is overstressed in the brief of the appellant. We perceive nothing in it that seriously reflected upon the appellant. However, it was a transaction in which the deceased was present and apparently was a guest and friend of Tims. In addition to the precedents referred to in the original opinion, attention is directed to article 1257a, P. C., in which the following occurs: “In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed.”
In the case of Vineyard v. State, 96 Texas Crim. Rep., 401, the following statement is found: “We think the only safe rule to be that this court should not hold an argument to- be reversible error unless it is in extreme cases where the language complained of is manifestly improper, harmful, and prejudicial, or where a mandatory provision of the statute is violated, or some new and harmful fact injected into the case. Stanchel v. State, *29589 Texas Crim. Rep., 358, 231 S. W., 120; Henderson v. State, 76 Texas Crim. Rep., 66, 172 S. W., 793; Bowlin v. State, 93 Texas Crim. Rep., 452.”
Many cases are cited in the. case mentioned and many others will be found in the books expressing thé views of this court and others that in appraising the complaint of the argument of counsel, there must be considered not only the argument (unless it offends against some statutory provision), but the setting in which it appears, the evidence in the case, and the verdict of the jury. See Borrer v. State, 83 Texas Crim. Rep., 198; and cases cited; also Branch’s Ann. Tex. P. C., p. 205. See, also, Silver v. State, 110 Texas Crim. Rep., 512; Fritts v. State, 42 S. W. (2d) 609; Russell v. State, 44 S. W. (2d) 727; Howard v. State, 53 Texas Crim. Rep., 378.
We are unable to accede to the view of the appellant’s counsel touching the action of the parties at the immediate time of the homicide. We regard the evidence, particularly that of the witnesses Wright, Lester Wood and Mrs. Lester Wood, as justifying the jury in rejecting the appellant’s theory of self-defense.
Regarding the disposition of the case made upon the original hearing as proper, the motion for rehearing is overruled.
Overruled.