¶1 ON MOTION FOR REHEARING.
¶2 Appellant renews his complaint of the charge of self-defense, based on threatened danger of an attack by deceased and his brother, which charge is set out in our original opinion. The contention is that the charge held objectionable in the Brookerson case, supra, is in effect identical with the one here complained of. In order that the comparison appear, we quote the charge held bad in the Brookerson case. Same is as follows:
“At the time of the killing the mind of the defendant was rendered incapable of cool reflection, by reason of any condition or circumstance, or combination of circumstances, or acts and conduct of the deceased, Oscar Knight, or his brother, Oliver Knight, or either of them, calculated to create and did create in the mind of the defendant, either of the emotions known as anger, rage, sudden resentment, or terror, at the time of the homicide, rendering the mind of the defendant incapable of cool reflection, then you will find the defendant guilty of manslaughter.”
¶3 The language of said charge is plain and gave the accused the right to defend against the “acts and conduct of the deceased, Oscar Knight, or his brother, Oliver Knight, or either of them.” The ruling in said case would have been different had the charge quoted used the following language: “acts and conduct of the deceased, Oscar Knight, and his brother, Oliver Knight, or either of them.” The use of the conjunction “and” makes the acts- and conduct referred to in the charge in the instant case, include the acts and conduct of both. Appellant asserts that he cited seven authorities in his brief supporting his contention in this regard, all of which are "in conflict with our original opinion. We find in his brief the Brookerson case cited and the six authorities, which are referred to, in the opinion in the Brookerson case, but none of them are at variance with the holding in our original opinion.
¶4 No state witness gave testimony that appellant was at the west door of the courthouse, where the shooting occurred, waylaying deceased. All the eye-witnesses, including appellant, said the parties met at said west door. Appellant said that he opened the door to go out — the brother of deceased said that deceased opened the door to go in. It appears that appellant had a sub *166 poena issued for two witnesses while this case was pending in Fisher County before the venue was changed to Nolan County. Said witnesses were not present when the case was tried in Nolan County, and appellant offered in evidence said subpoena, but the state’s objection was sustained and the subpoena not admitted. No continuance had been sought because of the absence of said witnesses. Appellant renews a complaint made because the court sustained the state’s objection to the introduction. of this subpoena. As we view the matter, said subpoena, if in evidence, would have proved nothing material in this case. According to the state’s contention, appellant shot and killed deceased while fleeing from him, and upon evidence offered in support of this proposition he was convicted of murder. We find nothing supporting any contention that deceased was shot by appellant from ambush.
¶5 Finding nothing in the motion for rehearing justifying the granting of same, it will be overruled.
¶6 Overruled