The opinion
■ON REHEARING.
April 10, 1918.
MORROW, Judge.
After considering the motion for rehearing we have reached the conclusion that we were in error in failing to sustain the assignment which related to the trial court’s refusal of appellant’s request to instruct the jury in appropriate language that the jury would not be authorized to draw an inference adverse to appellant upon the issue of self-defense from his possession of the pistol at the time of the encounter. This phase of the case was not referred to. in the original opinion. The circumstances surrounding appellant at the time he met deceased tend to show that his possession of the pistol was not unlawful in that he being a traveler came under one of the exemptions of the statute against the unlawful carrying of arms. Duke v. State, 61 Texas Crim. Rep., 19 , 133 S. W. Rep., 432 ; Schauer v. State, 60 S. W. Rep., 249 . The evidence suggests that the meeting with deceased was casual and unexpected by appellant, and the court having limited appellant’s right of self-defense by instructing the jury on the law of provoking the difficulty, it was incumbent- upon him to give an appropriate charge with reference to appellant’s possession of the pistol. Among the authorities on the subject are Shannon v. State, 35 Texas Crim. Rep., 2 ; Wilson v. State, 36 S. W. Rep., 587 ; Dodd v. State, 44 Texas Crim. Rep., 480 , 68 S. W. Rep., 992 ; Grayson v. State, 57 S. W. Rep., 808 ; Crow v. State, 18 Texas Crim. App., 419, 88 S. W. Rep., 814 ; Humphrey v. State, 73 Texas Crim. Rep., 433 , 165 S. W. Rep., 589 ; Smith v. State, 81 Texas Crim. Rep., 368 , 195 S. W. Rep., 595 ; Stanley v. State, 81 Texas Crim. Rep., 31 .
Because of the error herein pointed out the motion is granted, the affirmance set aside and the judgment of the lower court is reversed and the cause remanded.
Reversed, and remanded.
PRENDERGAST, Judge, absent.