Appellant takes us to task for the statement in our opinion that some of the witnesses testified that the deceased had no pistol. The witness Seyfus testified that he saw the deceased immediately before he was shot and saw no pistol. This we think supports the statement made originally. Irrespective of this, the facts clearly show a case of provoking the difficulty. This the appellant concedes. All the witnesses testified that the appellant fired the first shot from the porch while the deceased was going toward an automobile. This forfeited appellant's right of self defense, and it is of no moment as to whether the deceased was armed or not at the time he was finally killed by the appellant's third bullet.
Appellant's contention is that, since the trial court did not charge the jury on the law of provoking the difficulty, the jury were bound to find that the appellant acted in his own self defense because some of the State's witnesses testified that the deceased was armed. With this we cannot agree. This is not a case where the court erroneously instructed the jury as to the law of the case. The failure of the court to charge on this phase of the State's case could not render a conviction, otherwise supported by the evidence, invalid.
Remaining convinced that we properly disposed of this cause originally, appellant's motion for rehearing is overruled.