The State has filed a forceful motion for a rehearing taking issue with the statement in our original opinion wherein we said in substance that no evidence had been discovered raising an issue of an attack by appellant at the time Cason struck appellant with the wrench.
The evidence to which our attention is called does show that Cason may have anticipated and been fearful of an attack from appellant; indeed, he may have believed from what had occurred between them previously that appellant was about to attack him (Cason.) From this it is argued that if Cason had killed appellant under such circumstances and was upon trial that he (Cason) would have been entitled to a charge on self-defense. This may be conceded, yet it would not justfy the limitation on the charge of presumption from the use of a deadly weapon by deceased in the absence of evidence of an actual attack by appellant against which deceased was defending. In the absence of an actual attack by appellant Cason would *Page 215 be defending against appearance of danger as it looked to him; but appellant's legal rights cannot thus be measured. He is on trial, not the deceased. The jury had no instructions from the court — and could not properly have had any — advising them as to self-defense by Cason from apparent danger. In the absence of such instruction the jury under the limitation complained of, in the absence of an actual attack by appellant, was left to exercise their own opinions as to what might or might not be an attack by appellant.
The present writer has again reviewed the facts and reiterates that the evidence does not show any actual attack by appelant upon Cason at the time of the unfortunate fatal encounter, and thinks in the absence thereof the evidence did not justify the limitation of which appellant complains. If the opinion in Squyres v. State, 174 S.W.2d 601, is construed to so hold, then that case should be qualified as here suggested.
It was the lack of evidence showing an actual attack to which the original opinion referred.
My brethren have concluded that the State's motion for rehearing should be granted. For the reasons herein stated I am still of opinion that the original disposition of the case was correct, and respectfully register my dissent.
ON APPELLANT'S MOTION FOR REHEARING.