¶1 ON MOTION FOR REHEARING.
¶2 Upon mature reflection we adhere to, our conclusion that the learned trial judge erred in not submitting the issue of manslaughter predicated on the propositions of imperfect self-defense as well as possible fear which might have caused the accused to fire without sufficient reason under .the circumstances indicated in his testimony. Even though appellant in drawing his pistol, as admitted by him, intended to use it in resisting arrest, and he thereby forfeited his perfect right of self-defense against an attack by deceased brought on by appellant’s act in drawing such pistol,- — still if appellant shot to save his life from such attack after the officer had first fired, it might appear to the jury that the attack was adequate cause and that same created in appellant’s mind such passion, etc. as rendered it incapable of cool reflection, and that under the immediate influence of such passion, etc., he fired and killed deceased, he might be found guilty only of manslaughter. See authorities cited in Mr. Branch’s Annotated P. C., Sec. 2008, relating to the submission of the issue of manslaughter in a case of imperfect self-defense.
¶3*236 In what we said in criticism of paragraphs 15 and 15^ of the court’s main charge, we intended to go no further than to say that appellant’s rights should not have been made dependent in the charge on whether the jury believed that he did not give deceased time to declare his purpose or notify appellant of his official capacity and purpose to arrest him. Appellant was engaged in the perpetration of a felony and was subject to arrest by any officer or private citizen who may have seen him so engaged. He admitted that the transaction occurred about 10:30 at night and that they were loading illicit liquor into a car in the dark, and that one of his companions announced that she believed there was some one near, and presently said’ “There he comes now,” and that at this juncture he, appellant, whirled, drawing' his pistol as he turned around. He further asserted that thereupon deceased fired. Other witnesses said that appellant fired first. The law applicable to all the facts in testimony must be charged, and the jury thereunder are charged’ with the duty of deciding which testimony they will accept. If the jury believed that appellant drew his pistol to aid in resisting arrest, or to prevent lawful interference with his illicit enterprise, they would conclude that his act would be illegal and he would be without perfect right of self-defense. If they believed that he drew his pistol with intent only to defend himself against an attack from some unknown person which, from his standpoint, reasonably threatened life or serious bodily injury, he might claim self-defense.
¶4 We know no rule requiring one who approaches a place where he reasonably supposes a felony is being committed, to announce prior to his arrival at the place that he is an officer, or that he intends to attempt to effect the arrest of the parties. The law seems to contemplate that at the time of an arrest, in ordinary cases, an officer should disclose his official capacity, or else at his peril, but we see no application here. If the officer or any citizen purposing the arrest of parties engaged in a felony, should approach with a weapon drawn in the dark to where one was engaged in a felonious enterprise, the rights of the accused would seem to depend on his own purpose and the case as it reasonably appeared to him, and care should be taken not to have the jury drawn aside into a trial of the dead man’s purposes and actions. The motion for rehearing is overruled.
¶5 Overruled.