The opinion
ON REHEARING.
November 30, 1921.
LATTIMORE, Judge.
Appellant insists in his motion for rehearing that his exception to the charge of the trial court for its failure to submit the theory of self-defense as against a knife attack on the part of deceased, was well taken. The matter was not discussed at length in the opinion. The trial court gave to appellant a more favorable charge on his right to defend against an attack by deceased with a pistol than appellant was entitled to. Such charge was given without being made subject to a decision by the jury of the question of conspiracy between appellant and his companions. If it had been found by the jury that appellant and his companions had conspired to kill deceased, and that in the consummation of such conspiracy the attack was made and the wounds inflicted upon him which resulted in his death, there would have been no question of self-defense involved. Nor do we think appellant entitled to the special charge submitting unqualified self-defense against a knife attack, which charge was asked and refused.
Consecutively stated as they affect this issue, the facts are that appellant stated that when the car in which he and his companions were, and that in which were deceased and his companions, were both stopped first, he went back to the other car and offered deceased a drink of whisky, which the latter refused but accepted one from Simeon Hays; that when the car stopped the second time he went to the car in which deceased was, climbed on the running board near deceased, and said to the driver of the car: “This is the fellow I want to see,” and as deceased raised his hand with a pistol in it, appellant reached around the neck of deceased with one hand and caught the pistol and they
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scuffled oyer it; that deceased shot him and he fell off the running board; that he then heard other shooting and got up, and when he did so he saw deceased in the rear of the car, and went toward the car; that as he approached the car deceased'cut at him and he began cutting at deceased, not being able to state how many times he cut the latter. The facts from other witnesses show that at once after the first encounter at the place of the homicide deceased got out of the car and ran and was pursued and shot in the back, and kicked or “stomped” by some members of appellant’s party; that as a result of this shooting the leg of deceased was paralyzed. He was then put back into-the car from which he had fled, and was lying or sitting in the rear seat when appellant approached the car and the cutting was done. Just after being put back in the car and before appellant cut him, deceased was struck over the head with a flash light by appellant’s brother,, Simeon Hays. It was a dark night. Appellant did not claim that either he or deceased said anything just before the cutting began and at the time he approached the car. Based on these facts we conclude that appellant has not shown himself entitled to a charge on self-defense against a knife attack by deceased. Till he fled from the car after appellant was shot, it is not shown that deceased ever left said car. Appellant makes no explanation of his purpose in going back to said car and getting up on the running board, when he said to the driver that deceased was the fellow he wanted to see. He was perfectly aware that as a result of what took place at that time, he was shot in the body. In a moment or two he starts back to said car again in the darkness, and without a word of warning or explanation. He offers no word as to his motive or purpose in going to the car at this time. He says deceased struck at him then .with a knife as he approached. It occurs to us that if he started at a man who had just shot him, his act and that of his adversary would take color from what had preceded. The transaction was continuous; events moved swiftly. The court told the jury that if he had the right to defend against the-pistol attack, he should be acquitted whether he shot or cut deceased. We think this is all he was entitled to. If we take the State’s evidence as a whole, it seems to clearly show an acting together between appellant and his companions in a preconcerted attack on deceased, and that they pressed the attack from different angles until mortal wounds-were inflicted upon him. In such case there arose no self-defense. They stopped their car first on a bridge and compelled the stopping of the other which was behind them. After starting again they soon stopped their car, and when that in which deceased was riding attempted' to pass them, one of appellant’s companions threw himself upon the car and demanded that it be stopped. Immediately, according to the State witnesses, appellant went to the car and said that deceased was. the s — n of a b — h that they were after, and attacked him with blows in the face and, as some of the witnesses said, by choking him. When the deceased defended and tried to get away he- was caught, shot,.
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kicked, and after being put back in the car was cut in nineteen places with a knife. According to this record appellant appears to be the only one who used a knife upon the person of deceased. The doctor who attended him said that the death of deceased was caused by knife wounds. We are not inclined to think our former opinion in error on the point raised by this objection.
The matter of allowing appellant to attack the reputation of- Miss Edith Tittle was sufficiently discussed and we think correctly decided in our opinion. That appellant believed, or had reason to believe, her unchaste or of bad reputation, would afford him no justification for attempting to force her to drink whisky, or to make any kind of assault upon her while in the car with deceased. He swore that she .was not offended by what he did, and nowhere in her testimony did she say that she was offended. This occurred but a short time after the parties left the dance and but a few moments before the killing occurred. Anything which elucidated the condition, feeling and disposition of appellant and those acting with him toward deceased and his companions, would seem to be admissible.
The other contentions of appellant in this motion for rehearing have already been discussed by us and we deem them without merit.
The motion for rehearing will be overruled.
Overruled.