ON APPELLANT’S MOTION FOR REHEARING.
DAVIDSON, Judge.A sharp conflict arises under the testimony as to who fired the shot that killed the deceased. Mrs. Stark, sister of deceased, testified that it was the appellant; appellant and the witness Lundell testified that it was W. W. Scott, son of appellant — and not the appellant, himself.
Both theories were submitted to the jury — that is: that appellant killed deceased, or aided W. W. Scott, as a principal, in so doing.
The jury, without designating upon which theory that conclusion was based, returned a general verdict finding appellant guilty.
Appellant insists that he was entitled to have the jury instructed upon his right to shoot in defense of himself, notwithstanding the fact that he denied shooting the deceased. A proper exception was reserved to the charge for failing to submit that defensive theory. This contention was not insisted upon by appellant on the original submission of the case.
We note that the trial court instructed the jury “that if you do not believe, or if you have a reasonable doubt that the defendant, M. M. Scott, fired the shot that killed the deceased, Jessie Singleton, then you will acquit him, unless you find him guilty under the instructions hereinafter given you.” The language, “instructions hereinafter given you,” had reference to the application of the law of principals. The effect of such charge was to tell the jury that if' appellant did not fire the shot which killed deceased, he could not be convicted upon that theory.
Appellant insists, however, that there was testimony showing that he did shoot the deceased, which testimony, together with other facts in evidence, raised the issue of self-defense upon his part.
*533If appellant’s contention be sustained by the record, he would be entitled to such a charge — and this, notwithstanding he denied shooting the deceased. Knight v. State, 84 Tex. Cr. R. 395, 207 S. W. 315.
The facts, then, must be reviewed in the light of that contention.
We note, first, the testimony of Mrs. Stark. She says that deceased, after having talked over the telephone with the sheriff’s department, “went out toward W. W. Scott and M. M. Scott, out in the front yard. With reference to their automobiles, well, the automobile was parked in front of the house and the truck was parked down the drive. They were in their cars until he walked out there, and then they walked over toward him. Jessie Singleton (deceased) walked up toward W. W. Scott. I heard my brother say, ‘Whais the matter, Winfield; can’t you give her a chance to get out?’ I couldn’t hear anything after that. He kept a coming closer — M. M. Scott (appellant) kept coming closer toward my brother, and my brother was standing close to W. W. Scott, real close. My brother was standing there — may I show you how he was standing? He walked out there like this (indicating) ; he had a habit of standing with his arms across his stomach. He was standing that way, the way I have indicated, with his hands across his stomach. Well, I seen him look toward M. M. Scott — thais the defendant; and, I presume---He brings his gun, the long-barreled gun that he had drawn on me, and fired at my brother and my brother fell.” Upon cross-examination, Mrs. Stark testified that the deceased made no demonstration as if to draw a pistol he had in his belt, and that “he never raised his hand on that gun— never; he didn’t go out there for trouble, he went out there to talk things over.”
The witness, Lee Singleton, son of the deceased, did not attempt to say who — that is, W. W. Scott or M. M. Scott — killed his father. He testified that at the time his father was shot he did not have a gun in his hand but “was standing with his arms folded loosely down by his waist like this (indicating).”
The witness Lundell, offered by appellant, testified that W. W. Scott killed deceased as deceased “walked up to talk to W. W. Scott and then W. W. Scott fired a shot and Singleton fell to his knees, and then it was another shot fired and Singleton fell over on his back * * *. I didn’t see no gun in the hand of Jessie Singleton. I didn’t see no gun on him; if he had a gun on him, *534it might have could have dropped as he fell * * Upon cross-examination, he further testified: “I saw W. W. Scott just as plain as I see you now. I saw the gun in his hand, and I saw him shoot Jessie Singleton. He fired one shot, and he fell the first shot that was fired. He fired the first shot that was fired. Jessie Singleton wasn’t doing anything; he was just standing there doing nothing. He didn’t do anything; when he walked up, he got shot * *
According to appellant’s testimony, he fired no shot and the acts and conduct on the part of deceased, according to his testimony, were directed towards W. W. Scott.
For the right of self-defense to arise, there'must be — among other things — some act or demonstration or words coupled with acts or demonstrations on the part of the adversary toward the accused. 22 Tex. Jur., Homicide, Sec. 43, p. 445.
Applying that rule to the quoted testimony, we see the deceased made no demonstration or committed no act which, in law, would authorize the appellant to claim self-defense, for such facts negative any act or demonstration on the part of deceased towards appellant. The opinion is expressed, therefore, that the facts did not raise the issue of self-defense, as insisted upon by appellant.
Mrs. Stark was permitted to testify that immediately after the shooting she said to Lee Singleton, “Lord, God, they have killed your dady; lets run, they are going to kill us.” She further testified, “Then, I went out the back door over next door, but, before that, I talked some more with Lee and he said, ‘If they have killed my da dy, I’m going to kill them.’ Thais what he answered back * *
To this testimony appellant objected “because * * * said conversation would not be a part of the' res gestae” and was had out of the presence and hearing of the defendant and was highly prejudicial. Appellant takes the position before this court that the above statement was from bystanders.
Mrs. Stark was not a bystander. The killing occurred as a result of the efforts on the part of appellant to evict her from the house she rented. The deceased and his son, Lee, were present on the occasion to assist her in moving; moreover, there was testimony that immediately after the shooting appellant *535made the statement, “Now, we will get the old lady” — referring to Mrs. Stark.
The statement, “Lord, God, they have killed your dady; lets run, they are going to kill us,” was clearly a part of the res gestae. See: Wade v. State, 98 Tex. Cr. R. 27, 263 S. W. 589; King v. State, 185 S. W. (2d) 987; Barfield v. State, 118 Tex. Cr. R. 394, 43 S. W. (2d) 106; Vallone v. State, 141 Texas Crim. R. 220, 147 S. W. (2d) 227; Washington v. State, 113 Tex. Cr. R. 291, 21 S. W. (2d) 524.
Appellant having objected to the whole of the statement and a part thereof being admissible render unnecessary a determination of the admissibility of the remainder of the statement, under the rule that where a' part of the testimony objected to is admissible a general objection to all of the evidence, including the admissible portion, is too general. Branch’s P. C., Sec. 211; Cadle v. State, 122 Tex. Cr. R. 595, 57 S. W. (2d) 147; Tracy v. State, 111 Tex. Cr. R. 160, 12 S. W. (2d) 205.
The trial court having included in the charge submitting the right of W. W. Scott to shoot in defense of himself the words “or if you have a reasonable doubt thereof,” we are unable to agree with appellant that the charge shifted the burden of proof to establish such defense.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.