Now, you are instructed that if, from the evidence, you believe the defendant killed the said John Patton, but further *Page 602 believe that at the time of so doing the deceased had made or was making an attack on him, which, from the manner and character of it, caused the defendant to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him and say by your verdict, not guilty."

The appellant pertinently excepted to said charge among other grounds for the reason that it required the jury to believe the defensive theory before they could acquit the defendant and failed to give him in connection therewith the benefit of the reasonable doubt. This charge was clearly more onerous on the defendant than the law requires and a charge in nowise unlike it was expressly condemned by this court in the case of Regitano v. State, 257 S.W. 906. It was also condemned in the case of Hathcock v. State, in an opinion delivered March 17, 1926. Also see Tucker v. State on rehearing this day decided. The state in our opinion correctly confesses error in regard to this matter.

Appellant complains at the court's action in permitting proof of the details of a fight between the defendant and another party some time prior to the difficulty. In the event of another trial unless there is testimony in some manner connecting the deceased with this prior difficulty, we think the evidence of it should be excluded. We know of no rule that would permit proof of the details of a prior difficulty between an appellant and a third party to be introduced in evidence in the trial of a homicide case unless the deceased was in some manner connected with said prior difficulty.

Complaint is also made at the court's action in permitting proof by the state that the witness, Mrs. Wagner, who was connected with the appellant in the picture show business, fainted when told about the killing. This testimony in our opinion was improperly admitted. It had no bearing on the subject under investigation and shed no light on the difficulty. If it had any effect one way or the other it could have been only to prejudice the appellant's case before the jury. It is always a safe rule to follow in the trial of a criminal case for the trial court to confine the testimony to matters that shed light on the transaction under investigation. The two matters last discussed may not have been sufficient within themselves to have caused a reversal of the case but they are discussed in view of another trial.

For the error in the court's charge the judgment is reversed and the cause remanded.

Reversed and remanded.*Page 603

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.

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