In his well prepared motion appellant renews complaint of the definition of malice aforethought as given in the charge. It seems to us that in giving to the jury, in substance, what was formerly a definition of express malice aforethought, the trial court erred in favor of appellant and placed an undue burden on the State, and that appellant having been found guilty and his punishment fixed at two years, thereby indicating that the jury believed him to have been without malice at the time of such homicide, we have no doubt that our disposition of this complaint was correct in the original opinion.
The fact that deceased, prior to the fatal difficulty, had cut appellant, and the serious nature and extent of the wounds then inflicted, and that appellant suffered many days therefrom, — was proven by appellant as original defensive testimony. Evidently to show, in so far as it might, that appelant's suffering was not alone from the cuts then inflicted, and that the length of time same took to heal was not because of the extent or nature of the wounds inflicted, we think it proper for the doctor, who gave evidence for the appellant, to be asked on cross-examination and to testify that appellant suffered from these unhealed wounds until, after *Page 410 obtaining a history of his case, said doctor treated him for syphilis, and that thereafter the wounds healed.
Not being able to agree with appellant's contentions, the motion for rehearing will be overruled.
Overruled.