ON MOTION FOR REHEARING
LATTIMORE, Judge.Appellant renews complaint of paragraph sixteen of the charge of the trial court, o which contains part of the charge on self-defense. We have examined same in the light of the motion and the authorities cited therein. Appellant did not claim that his wife was making any attack upon him which caused him to fear death or serious bodily injury, nor that in self-defense against any such attack he killed her. At most he said she was attacking him with her hands, and that he shoved or struck her in such manner as that she fell, striking her head against a chair, and that he had no intent to kill her. He also said that she was highly nervous, and that her heart beat too fast.
In said paragraph sixteen the trial court went no further than to tell the jury that if deceased was making or about to make an attack upon appellant, and he struck his wife in any *398way, after he had made every reasonable effort to ward off her attack, and that such act on his part caused her death, he should be acquitted. The rule is well settled that the charge of the trial court must be looked to as a whole. In paragraph seventeen thereof the court fully applied the law of self-defense to .the facts as testified to by appellant, and told the jury that if he and his wife were in a difficulty and he pushed or slapped her without specific intent to kill, — and she was thereby thrown down and struck her head on the floor or a chair, and her death ensued either from the striking, or that coupled with her overwrought condition, they should acquit. In Fleming v. State, 101 Texas Crim. Rep., 19; Best v. State, 58 Texas Crim. Rep., 327, and Casner v. State, 57 S. W., 821, cited by appellant, we condemned identical charges in each case which, as part of the definition of justifiable homicide, told the jury that in such case all other means must be resorted to, etc. We do not think these cases any authority for holding the charge here given, to be erroneous.
Appellant’s renewed criticism of paragraph seventeen of the charge is not well founded. The testimony showed that the skull of deceased was fractured. The woman in the next apartment said she heard deceased calling for help; that appellant was killing her. She said she heard appellant “Beating on her”; ■heard appellant say, “Yes, damn you, I will kill you.” Morgan, who responded to the calls for help, said that appellant told him .that deceased was fighting him, and he “Tried to knock the top of her damned head off.” Appellant testified, as above set out, that when he came to their room, just before the killing, deceased attacked him, and that he fought back with his hands only, and that when he shoved or slapped her she fell and struck a chair, and that she presently died from either the contact with the chair or from some internal condition for which he was not responsible. In presenting appellant’s defensive theory in paragraph seventeen, the court charged as follows: “If you believe from the evidence, or if you have a reasonable doubt thereof, that at the time and place in question, the defendant and the deceased became embroiled in a fight or difficulty, and that while so engaged the defendant slapped and pushed the deceased away from him, without any specific intent to kill and without any specific intent to injure her, and that she thereby was thrown to the floor and struck her head upon the floor or a chair, and from such striking alone, or from the striking coupled with her overwrought physical condition, if any, her death was caused, then you will acquit the defendant of any offense *399charged against him and say by your verdict not guilty.” We think this not open to appellant’s criticism.
Mrs. Perkins in the next apartment swore that she heard . appellant choking his wife and beating on her, and heard deceased say “Come quick Mrs. Perkins, he is killing me; he is killing me; he is choking me.” Appellant insists in his motion that we erred in holding it proper to allow this witness to so testify upon the ground that it was but a conclusion. We noté further in Mrs. Perkins’ testimony that she said “I could tell by her voice that he was choking her. Anybody could recognize that she was being choked by her voice.” The statement made by deceased was part of the res gestae. What she then said was admissible, as detailed by Mrs..Perkins as was witness’ statement that she heard him beating and choking his wife.
We have examined all the cases cited in the motion and find in them no support for appellant's contention. The facts are vastly different in the case at bar from those in the authorities cited. In Steed v. State, 276 S. W., 281, the statements held inadmissible were not res gestae, and were also made by the accused while under arrest.
Insofar as said motion relates to the supposed error of the admission of appellant’s treatment of his wife something like a year before this killing, if we understand the record, there was no objection made to this testimony, but a motion was made to exclude it, which was overruled. It was not set up in said motion that appellant’s objection was based on the fact that the details of the former difficulty were gone into. Appellant’s contention in his motion that such was the ground of his objection seems untenable. Unquestionably proof of former difficulties may be given as supporting the inference of malice and intent.
Being unable to agree with appellant’s contentions, the motion for rehearing will be overruled.
Overruled: