On a previous day of this term of court the judgment in this case was affirmed.
We do not care to review on this motion for rehearing the questions decided in the former opinion. Appellant reserved a bill of exceptions to the rejection of the testimony offered by himself while upon the witness stand. This evidence was in regard to the general bad reputation of Purvis, as being "that of a dangerous man or otherwise," and would have answered that such reputation was bad. The court excluded the offered testimony. As a usual rule reputation of this character follows evidence of threats. Threats were not proved in this case and the efficacy of threats and dangerous character of the party making the threats as a general proposition, become more or less potential in cases of apparent danger. But where the danger has been merged into actual danger and the party making the threats is actually firing at his antagonist, the reputation of the assailant becomes of much less importance and the rejection of such testimony as a rule, under such state of case, would not be reversible. Appellant offered as a witness, himself only to prove the general reputation. It has been held that one witness is not sufficient to prove the fact of general reputation. But be that as it may, we are of opinion that the rejection of the evidence in this case is not of sufficient importance to require a reversal. There were two theories as stated in the original opinion, presented by the evidence, one that appellant, after his first difficulty with the policeman Brannon went away, armed himself and was walking along the street when seen by Brannon. That he immediately fired upon Brannon with a shotgun and who returned the fire. This was the State's case. Appellant's theory was that he was fired upon first by somebody, he not being aware that he was being shot at, at first. Upon looking up, he discovered a man behind the house, shooting from that vantage ground, whom he took to be Purvis, a bright mulatto, with whom, he testified, he had a difficulty the night before. Under appellant's theory of the matter he was being fired upon by his enemy, Purvis, before he was aware of Purvis' presence. The appearances of danger were not involved in the case. It was one of actual and serious danger arising from an enemy shooting under cover and from a decided point of vantage with a six-shooter within easy range. If danger ever would become real from a standpoint of actual firing, appellant made this so *Page 646 by his testimony, and the fact that Purvis may or may not have been a man of dangerous character or one of bad reputation would be largely immaterial. At least the exclusion of such testimony would be harmless. Out of deference to the able and urgent insistence of counsel for appellant in regard to the exclusion of this testimony, we have reviewed the question thus briefly. For collation of authorities see White's Annotated Penal Code, section 1180.
The motion for rehearing is overruled.
Overruled.