In his motion for rehearing appellant again urges that the trial court was in error in refusing to give to the jury his requested charge which is copied in our original opinion to which reference is here made without again setting it out.
Stripping the charge down to the essentials it would have told the jury if the words or acts of deceased made appellant so angry that he could not control his acts, and he killed under those circumstances he would not be guilty of murder with malice.
Art. 1257c, Vernon's Ann, Tex. P. C., Vol. 2, p. 765, Acts 42nd Leg., p. 94, Ch. 60, defines murder without malice as a killing under the immediate influence of sudden passion arising from an adequate cause, "by which is meant such cause as wouldcommonly produce a degree of anger, rage, resentment, or terrorin a person of ordinary temper sufficient to render the mindincapable of cool reflection." (Italics ours.) It will be observed that the requested charge entirely ignored that part of the statute above italicised, and would have directed an acquittal of murder with malice if the words or acts of deceased made appellant angry, regardless of whether they would have so affected a person of ordinary temper. The requested charge was properly refused. The court in his main charge instructed *Page 25 the jury in accord with the statute referred to above. This was all appellant was entitled to on the subject.
The motion for rehearing is overruled.