The opinion
ON MOTION FOR REHEARING.
MORROW, Presiding Judge.
The following is a synopsis of the State’s evidence of incidents immediately attending the tragedy. The encounter first took place in a building occupied by Hooser’s Drug Store and the post-office, which fronted east on Main Street about thirty feet from Second Street and about 45 yards southwest of Hess & Thompson’s garage. Having a shotgun in his automobile, the appellant drove three blocks to the garage mentioned, where he loitered for about 30 minutes. The deceased appeared on Main Street opposite the garage, walked in the direction of and entered Hooser’s Drug Store. Dismounting from the car, the appellant went rapidly to the side-walk of the drug store and fired into the drug store four or five times, after which he entered it and fired three more shots. At the time the shots last mentioned were fired the deceased was stooping behind some object in the post-office. He was in his shirt sleeves. Immediately after the shots last mentioned were fired, the deceased, leaving a pool of blood and the pistol where he was stooping, left the drug store through the rear door. The appellant left the post-office, and went to his automobile, where he reloaded his pump shotgun. He returned, ran to the sidewalk in front of the post-office, looked through the post-office and drug store building with the gun in his hand, and then ran south, passing three buildings, to the front of a hamburger stand on Main Street. The deceased, in the meanwhile, limping and dragging one leg, went from the rear of the drug store, passed the same three buildings and stopped at the rear of the hamburger stand but did not enter- it. As he turned from it shots were fired from the hamburger stand. The appellant emerged from the rear door with the gun in his hand. The deceased, in the meantime, took refuge behind an iron barrel in the rear of the building adjoining the hamburger stand. The appellant ran to the deceased, struck him with his gun and shot him with his pistol. After the shooting in the drug store and post-office and after the appellant had reloaded his gun, witnesses asked him not to shoot any more.
The following is the appellant’s version: He left the filling station and went to the drug store for medicine. As the deceased entered the drug store he drew his pistol from his bosom and ap
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peared to be endeavoring to shoot from behind a bystander. Upon observing this the appellant grabbed his shotgun and fired into the drug store two or three times, believing that his life was in danger. After firing several shots he entered the drug store, and the deceased either fired or snapped his pistol. He entered the drug store because he was observable by the deceased who was squatting behind a desk. After entering the drug store the appellant fired at the deceased and'thought he heard him say: “Bring me a gun, Grover; shoot him, Grover,” from which he believed that Grover Tirey was coming to the aid of the deceased. Upon leaving the drug store the appellant did not know whether or not the deceased was injured. He got some shells from his car but due to his excitement, he could not say whether he reloaded his gun. ■ He went on foot to the hamburger stand without knowledge that the deceased was there. He entered the hamburger stand for the purpose of avoiding the deceased, but upon hearing some one say that the deceased was approaching, he went to the back door of the hamburger stand and observed the deceased with a pistol in his hand. The deceased fired his pistql and jumped to the left of the door near a window through which the appellant could be seen. Appellant went out the back door and observed the deceased behind a steel barrel in the rear of the building, from which point he fired at the appellant. The appellant’s shotgun snapped and he pulled his six-shooter from under his belt. While the deceased was pointing his pistol at him, the appellant hit the pistol with his shotgun and shot the deceased with his pistol.
Concerning the attack upon the statute re-defining murder and abolishing the specific offense of manslaughter embraced in Chap. 274, Acts of the 40th Legislature, and the request for instructions to the jury on the assumption that the act was invalid, we refer to the discussion of the subject in the original opinion in this case and in Davis v. State, 10 S. W. R. (2d) 116; Crutchfield v. State, 10 S. W. R. (2d) 119.
Supplementing the remarks made in the original opinion in this' case relating to Bill of Exceptions No. 1, we take note of the fact that the bill mentioned is qualified with the statement that after the shooting in the drug store and post-office building the ^witness Waller testified that as the deceased came out of the building the witness told him to get out of the way. He was walking down the street behind the stores. The deceased made no reply. In qualifying the bill the stenographic report of the testimony of the witness Waller on the subject in hand is reproduced. We find nothing in it to the
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effect that the deceased was limping. It appears only, that when the deceased came out of the back door of the'drug store the witness told him to get out of the way. .There is nothing in the testimony indicating that the deceased changed his course or that he said or did anything in response to the remark of the witness that he get out of the way. There was also evidence quoted in the bill that the appellant looked through the store and from where he was standing he could see through it; that after looking through the store he ran down the street with his gun in his hand. From the bill no error is perceived. The soundness of the contention that by the bill there is revealed a departure or conflict from the rule that one defending on the plea of self-defense is not affected by the unknown or undisclosed motives of his adversary, this court is unable to sanction. As stated in the original opinion, Sec. 2, Chapter 274, is not regarded as broadening or expanding the rules of evidence in homicide cases, but is intended merely to emphasize the legislative intent that existing rules have not been abrogated. The paragraph is not deemed to have added or subtracted from the law of evidence as understood and applied at the time the act was passed.
In paragraph 13 of the court’s charge there was embraced an instruction to the jury on the law of abandonment of the difficulty by the deceased. In the same paragraph there was embraced the converse of that theory in substance as contained in the appellant’s special charge No. 5, which special charge was given at the request of the appellant after the main charge was prepared, and which special charge reads thus:
.“You are further instructed that if you believe from the evidence, or have a reasonable doubt thereof, that after the first shooting in the Hooser Drug Store and Post-office, if any, that the defendant re-loaded his gun and went to Lyerla’s Hamburger Stand without knowing what had become of the deceased, and while there was suddenly confronted by the deceased under such circumstances as it reasonably appeared to him, defendant, viewed from his standpoint at the time, that he was in danger of losing his life, or sustaining serious bodily injury from the hands of deceased, he would have the right to use all means necessary to defend himself, and if you further believe that viewed from the defendant’s said standpoint it appeared to him that the deceased was retreating to a vantage ground for the purpose of gaining an advantage over the defendant and shooting him through a window or other aperture in the building, and the defendant under such belief pursued the deceased, in such pursuit
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passed out at the back door of said building and thereafter discovered the deceased behind a barrel and further attempting to shoot deceased — and it then appeared to the defendant that it was necessary for him to advance upon deceased as the best means for his defense, and he did so pursue and advance upon deceased, and it reasonably appeared to defendant that it was necessary to kill deceased to avoid being, himself, killed, or sustaining serious bodily injuries, and he did kill deceased by shooting him with a gun or pistol, then defendant would be justifiable under the law of self-defense and you will acquit him.”
The charge of the court is attacked in the twelfth and thirteenth paragraphs pf the exceptions thereto upon the assertion that the facts warranted no instruction on the issue of abandonment of the difficulty by the deceased. In the light of the evidence before the jury and the record presented, the court is not deemed to have committed error in refusing to eliminate that part of his charge which dealt with the subject of abandonment of the difficulty by the deceased. That such a charge, on appropriate facts, should be given has often been declared. See Bordeaux v. State, 58 Tex. Crim. Rep. 61; Neyland v. State, 79 Tex. Crim. Rep. 652; Swann v. State, 92 Tex. Crim. Rep. 153.
The propriety of receiving in evidence the apparel worn by the deceased where it tends to solve a controverted issue of fact is not open to question. See Trigg v. State, 99 Tex. Crim. Rep. 376, and authorities collated. In the present instance the bill of exceptions as qualified, declares that the trial presented an issue of fact upon which the clothing worn by the deceased was relevant.
The motion for rehearing is overruled.
Overruled.