ON MOTION FOR REHEARING.
LATTIMORE, Judge.Upon facts the same as appear in this record, upon a former appeal, we said: “The ommission from the charge of an instruction on the law of defense of property, is deemed correct.” Appellant stresses in his motion his right to have a charge given the jury presenting this theory. The right to defend on such grounds seems entirely lacking, in supporting testimony. The check demanded by deceased of appellant immediately before the difficulty, — upon defense of which demand appellant seems to predicate his claim of a killing in defense of property, — was not in the pocket of appellant or on his person, but was at some place in a lock box or other receptacle when the difficulty took place. Argument or further statement is not deemed necessary to demonstrate that in our opinion appellant was not entitled to an instruction upon the right of defense of one’s property. The authorities cited by *493appellant seem to be upon altogether different facts and have no application.
It is again urged that this court should have held it erroneous for the trial judge to refuse appellant’s special charge seeking to have the jury told that the bet made between appellant and deceased was unlawful, and hence the attack upon appellant because he would not deliver the check put up, — was also unlawful. If the the attack of deceased had for its object to force appellant to turn over to deceased said check, this could not have given appellant any greater right of self-defense than was accorded him in the charge of the court as given, in which the court told the jury that appellant had the right to defend against any unlawful and violent attack by deceased. We are still of opinion that there is nothing to this point.
So also since appellant was given his free and full right of self-defense as against an unlawful and violent attack by deceased, we can not agree with his insistence that Dr. Moore should have been allowed to testify that in his opinion the signet ring worn by deceased could not have made the slight cut observed on the ear of appellant, when examined by Dr. Moore after the difficulty. While appellant said deceased struck him in the ear, and that this was the first blow in the difficulty, and that deceased had a knife or some small instrument in the hand with which he struck, appellant also detailed twelve or fifteen blows struck by deceased thereafter and before appellant struck or cut deceased inflicting the fatal wound. Dr. Moore said that appellant’s ear was not seriously wounded; that the wound caused some blood. If deceased had a closed or opened knife in his hand, appellant did not claim to have seen it, and the wound inflicted was not more serious apparently, than could have been inflicted by a blow from a hand with a ring on it. The court placed no restriction on appellant’s right of self-defense based on the character of the attack by deceased, or the instrument in the hand of deceased, and we are not able to agree that the rejection of the testimony of Dr. Moore could have injured appellant’s rights.
We are still of opinion that the jury could not have failed to use for the purpose of determining whether deceased was conscious of approaching death, — the statement complained of in the testimony of Dr. King and Mrs. Streit set out in our original opinion. Such being our view, it would follow that no error appears in refusing the special charge limiting the purpose for which said evidence could be considered. If it could be considered but for one purpose, it manifestly would not be error *494to fail or refuse to tell the jury that they could only consider it for the purpose for which it was intended. We see no application of what we said in Hays v. State, 164 S. W., 841.
The court below, as applicable to murder with, — as well as murder without, — malice, told the jury in paragraph fifteen of his charge, that before they would be warranted in finding the accused guilty of murder, they must find and believe beyond a reasonable doubt that he had a specific intent to kill at the time he cut deceased with his knife. He also told them that they could take into consideration all the facts and circumstances in evidence, both those occurring at the time of the killing and prior thereto, in determining whether the mind of the accused was, — at the time, — aroused by sudden passion, rendering him incapable of cool reflection, and that if so, and the cause thereof was such as would commonly produce that condition in. the mind of a person of ordinary temper, — they could not give appellant a higher penalty than five years. We find nothing in this charge subject to appellant’s criticism. There are other matters appearing in the motion, each of which has been considered, but in none of them do we find any error upon which a reversal might be predicated.
The motion for rehearing is overruled.
Overruled.