I concur in the result, but do not agree to some of the propositions and discussion thereof in the opinion. I do not believe that the stenographer's report shows that appellant took his bills of exception to the admission or rejection of testimony in such shape as to require same to be reviewed. If it be conceded that the bill of exceptions with regard to the hat alleged to have been worn by the deceased at the time of the homicide is in such shape as presents the question, I do not think the court committed any error in admitting said evidence. *Page 629
The conviction in this case being for manslaughter, the correctness of the court's charge on manslaughter, self-defense, and defense of another is only involved. An examination of the court's charges, in connection with the requested charges on said subjects, which were given, in my opinion properly safe-guarded all of appellant's rights. The court, however, gave a charge on the evidence with regard to the hat alleged to have been worn by deceased. The testimony on this subject was original evidence, and the court had no right to single it out, and to charge the jury in regard thereto. The effect of the court's instruction on this subject was tantamount to telling the jury to consider same on a vital point in the State's case, to wit: as to whether appellant fired a shot at deceased. This, in my opinion, was such error as must cause a reversal of the case, and on that ground I concur in the disposition thereof.