Appellant is correct in assuming that it was not the purpose of the original opinion to overrule former cases holding that an accused can not be bound by proof of the acts, statements or non-armed condition of the deceased which is unknown to accused which might impinge on his right of self-defense. We have again carefully examined appellant's contention that the first difficulty between appellant and deceased was so closely connected with the second that any evidence tending to show that deceased's gun was unloaded at the time of the first encounter would impinge on appellant's claim that he was acting in self-defense at the time of the killing. In order to appraise this contention we have carefully re-examined all the facts and have been unable to bring ourselves to appellant's way of thinking. It was established by witnesses both for the state and appellant that deceased's gun was loaded at the time of the killing; not only that, but it must have been in readiness for use, for the gun was discharged as deceased was falling, and some of the shot struck an officer who was present. If the jury had believed that deceased's gun was unloaded at the time of the first encounter the undisputed fact that it was loaded when he was killed would seem to work to appellant's benefit rather than against him as it tended to show preparation on the part of deceased.
Appellant renews his criticism of the charge as not embracing "reasonable doubt" in connection with the affirmative self-defense theory. An examination of the charge reveals that it was subdivided by numbers, each subdivision, however, consisting of paragraphs. Sub-division five contains the law relating to self-defense. It is so worded that the jury could not have failed to understand that this entire sub-division related to that subject. In paragraphs two and three of said sub-division the law of self-defense generally is explained and in paragraphs three and four application of it is made to the facts. In paragraph five of said sub-division the jury were told that if they had "a reasonable doubt as to whether defendant was acting in self-defense" to acquit. Where it becomes proper to charge reasonable doubt in connection with an affirmative defense it is not indispensably necessary that the reasonable doubt be embraced in the same paragraph of the defensive charge. All that reasonably could be required is that there be given such a charge in connection therewith as to inform the jury of its application to the defensive issue. This seems to have been accomplished in the present *Page 560 case in such a way that the jury could not possibly have misapprehended its application. As we understand the Regittano case, 96 Tex.Crim. R., 257 S.W. 906, there is nothing in it contrary to the view here expressed. See also Webster v. State, 105 Tex.Crim. R.; 289 S.W. 689 and the cases therein referred to. If the court had included the question of reasonable doubt in the same paragraph submitting the issue of self-defense the point here urged would have been avoided, and as intimated in the original opinion it would perhaps have been preferable for the matter to have been submitted that way, but we are firm in our conviction that no injury could have resulted to appellant from the manner in which the matter was here presented.
Appellant requested a special charge which in substance would have told the jury that if appellant was acting in self-defense when he fired the first shot at deceased and that this shot produced the fatal wound "which did or would" have caused death, that any subsequent shots fired at deceased would not impair appellant's right of self-defense, although the subsequent shots were not fired at a time when he believed his life to be in danger. Appellant urges that the refusal of such special charge was an error which demands reversal. The only authority referred to by appellant in his brief is Decker v. State, 69 Tex.Crim. R., 154 S.W. 566, which appellant seems to recognize does not support his contention, but makes the claim that the opinion is unsound. In the present case deceased received one wound in the left breast which was unquestionably fatal and the evidence indicates that this was the first received. Another bullet entered under the right arm and that wound also was thought by the physician to be fatal. Three other wounds on the body were not mortal. Two, and perhaps three, shots were fired at deceased after he had fallen, and one or two while he was staggering, or falling, after receiving the first shot. The evidence is uncertain as to when the shot was fired which entered under the arm. The shooting was a continuous transaction, lasting only a few seconds; there was no retreat of deceased, no pursuing by appellant, no issue of abandonment of the difficulty or a renewal thereof. The court did not undertake in any way to make the state's case depend on any subsequent shots and in presenting appellant's defense told the jury that if at the time the appellant fired "the fatal shots" it reasonably appeared to him that he was in danger, he should be acquitted, thus leaving the jury to determine the question of the fatal shots. In this connection the jury were also told that under such circumstances appellant not only had the right to kill deceased but had the right to *Page 561 continue to act so long as the appearance of danger to him existed. We fail to see the propriety of an instruction such as here requested, under the facts of the present case where the shooting was continuous, only a few seconds elapsing from the firing of the first shot to the firing of the last one, and when there was no change in the relation of the parties. We think it unnecessary to discuss the matter further but refer to the following authorities which bear somewhat generally on the subject. Hardin v. State, 104 Tex.Crim. R., 283 S.W. 517; Dickey v. State, 99 S.W. 269; Patterson v. State, 105 Tex. Crim. 398,289 S.W. 398; Gardner v. State, 44 Tex.Crim. R.; Duque v. State, 56 Tex.Crim. R.; Maddox v. State,76 Tex. Crim. 217, 173 S.W. 1026.
The motion for rehearing is overruled.
Overruled.