ON MOTION FOR REHEARING.
MORROW, Presiding Judge.— The appellant’s testimony, as understood, is summarized as follows: Lawson demanded both checks. Stroud said- that the bet .had been withdrawn. Lawson said: “Yes, but I thought you were joking,” and said; “I want both of those checks or I am going to whip .hell out of you.” Stroud testified: “Lawson told me to put up my glasses,, and I took then) off. He then put his ,hat in the car. I don’t remember any further conversation after that. When he put his hat in his car, he turned around and hit me with a knife in the ear.”
Appellant said- that the first lick that was passed in the encounter was that in which he was struck in the ear with a. knife. From then on the fight proceeded until the deceased was killed. In the course of his testimony the appellant said that he apprehended danger of getting hurt when the first lick was struck by Lawson. He said further: “I didn’t think there was any danger when he told me he was going to whip hell out of me if I didn’t give him- those two checks.”
As interpreted,. subdivision 1, article 1222, P. C., .1925, does not render imperative a charge adverting to .the words as well as acts in specific terms, in ■ every case. This is illustrated in many of the cases to which the appellant refers in his motion for rehearing, notably, Rhodes v. State, 110 Texas Crim. Rep., 353, 7 S. W. (2d) 569, both in the original opinion and that on motion for rehearing; also Dugan v. State, 86 Texas Crim. Rep., 130, 216 S. W., 161.
In the present case, under the facts presented from the appellant’s testimony and from the whole record, it seems clear that in failing to refer in specific terms to the words which were used by the deceased immediately preceding the conflict, the learned trial judge committed no error. The charge is not regarded as restricting to the acts of deceased the right of self-defense, but the language used was broad enough to embrace the words of the deceased, as is illustrated by the following quotation from the charge: “* * * or that at the time it reasonably appeared *477to the defendant that the deceased had made or was making or was about to make an attack upon him, the defendant, which from the manner and character of it, and from all the facts and existing circumstances, in evidence, caused him, the defendant, to have a reasonable expectation of fear of death or serious bodily injury.”
It may be added, however, that the appellant’s claim of self-defense appeárs from his testimony to have been founded upon the act of the deceased and not upon his words. As stated above, appellant disclaimed the thought that his action was because of the words of the deceased, and founded it upon an actual attack by the deceased.
Quotation of abstract statements from the opinions in Lundy’s case, 59 Texas Crim. Rep., 131, 127 S. W., 1032, 1034; Dugan’s case, 86 Texas Crim. Rep., 130, 216 S. W., 161, and others, must of necessity be considered in connection with the facts of the case which are under consideration. For example, in Lundy’s case, supra, the following is shown: “At this time deceased spoke to appellant and said: ‘Get out of the road, you son-of-a-bitch, "or I will fill you full.’ Upon making these remarks, deceased threw his hand to his side, leaving the impression upon appellant’s mind that he was about to draw his pistol.”
The facts of this case differentiate it from the case of Williams v. State, 87 Texas Crim. Rep., 280, 221 S. W., 287. Williams defended upon apparent danger and communicated threats, and the court correctly held the charge faulty in failing to take into account the statutory declaration in subdivision 1, of article" 1222, supra.
In Dugan’s case, supra, according to the appellant, at the beginning of the encounter the deceased said: “Damn you, I will kill you,” at the same time drawing a knife and cutting Dugan under the arm.
In the reviewing court, the charge of the trial court must be construed in the light of the facts, and in estimating the effect'of the charge, the language of article 666, C. C. P., 1925, cannot be ignored. See Davis v. State, 107 Texas Crim. Rep., 389, 296 S. W., 605.
Exception was reserved to that part of the court’s charge which instructed the jury on the presumption arising from the use of a deadly weapon.
In paragraph 10 the jury were instructed that the specific intent to kill was essential; that the instrument used was to be taken into consideration in judging the intent; that if the knife, as used, was not likely to produce death or great bodily harm, it was not to be presumed that death was intended, and if the knife was not a deadly weapon, then the specific intent to kill must be proved by the facts and circumstances.
In the next succeeding paragraph of the charge, the effect of the language used is that if the knife used by the appellant was, from the manner used, ah instrument reasonably calculated to produce death or great bodily harm, the presumption of an intent to kill would exist. The foregoing *478is not the language, but the substance of the paragraphs of' the charge under Consideration; ■ ■
Formerly the ■ statute authorized, and in a. proper ¿ase required, that the jury be given an instruction in substance in" accord with "a statute reading as follows: “If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was Used such" intention" evidently appears.” (Article 1261, P. C., 1925).
In the charge in question, the learned trial judge had in mind that section of the statute. However, the article mentioned was expressly repealed by the Acts' of the 40th Legislature, Regular Session," p. 412, chap. 274, sec. 3, in which it was said: “Chapter 18 of Title 15 of the Penal "Code of 1925’is hereby repealed.” See Davis v. State, 110 Texas Crim. Rep., 605, 10 S. W. (2d) 116.
The statute authorizing a charge on the presumption mentioned having been withdrawn by the. repeal of the statute, the instruction offends against the riile forbidding a charge upon the weight of the evidence, and is calculated to turn the presumption against him on the vital issue of intent to kill.
The contention that there should be an instruction to the jury on the law of assault with intent to murder upon the theory that the act of the appellant was not the cause of the death of the deceased' but that it was due to the intervening cause of peritonitis is not deemed sound. We find in the record no evidence supporting the view mentioned. See Spicer v. State, 115 Texas Crim. Rep., 110, 28 S. W. (2d) 810; Perrett v. State, 75 Texas Crim. Rep., 94, 170 S. W., 316; Lee v. State, 67 Texas Crim. Rep., 137, 148 S. W., 706; Manley v. State, 69 Texas Crim. Rep., 502, 154 S. W., 1008; Corpus Juris, vol. 4, pages 1092-1099, secs. 3075-3078; also Spicer v. State, 120 Texas Crim. Rep., 440, 46 S. W. (2d) 685.
For the same reason, the refusal of a charge on circumstantial evidence was properly denied.
There was no impropriety in submitting to the jury the question of the sanity of the deceased and his consciousness of approaching death at the time he made the dying declaration. See Stroud v. State, 113 Texas Crim. Rep., 621, 24 S. W. (2d) 52.
The omission from the charge of an instruction on the law of defense of property is deemed correct. It is thought that the evidence raises no issue requiring an instruction to the jury covering the appellant’s right to defend against an injury to his person less than intent to kill.
The criticisms of the procedure, particularly the charge of the court, are numerous. They have been examined and discussed so far as deemed necessary to the disposition of the appeal. Without assuming to assert that the parts of the charge not discussed were accurate in all respects, *479we will state that we have failed to perceive any reversible error save such as are hereinabove pointed out.
For the reasons stated, the motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
. Reversed and remanded.