ON MOTION FOR REHEARING.
HAWKINS, Judge.The State in its motion for rehearing expresses apprehension that the effect of our original opinion is to again read into the present murder statutes degrees of murder, thereby recognizing two offenses. We disclaim any such intention. Our expressions heretofore support such disclaimer. See Herrera v. State, 117 Texas Crim. Rep., 389, 36 S. W. (2d) 515; Hunt v. State, 123 Texas Crim. Rep., 559, 59 S. W. (2d) 836; Chappell v. State, 124 Texas Crim. Rep., 187, 61 S. W. (2d) 842.
Art. 1257b, P. C., provides in part that “unless from all the facts and circumstances in evidence the jury believes the defendant was prompted and acted with his malice aforethought, they cannot assess the punishment at a period longer than five years.” The punishment assessed in the present case was eight years, therefore, the jury must have found that appellant was prompted by malice aforethought. Our purpose in the original opinion was simply to hold that from all the facts and circumstances proven by the State the jury was unwarranted in finding that the killing was upon malice aforethought. We did not intend to leave the impression that there must of necessity be evidence of premeditation or previously formed design to kill. A killing might occur under circumstances where malice could be inferred. A re-examination of the evidence indicates that deceased for some unexplained cause may have entertained ill-will towards appellant, but the record fails to show that appellant ever entertained any such feeling towards deceased. The State’s own testimony excludes any fact or circumstance usually regarded as evidencing malice, and excludes conditions from which malice may be inferred. Such being the record, this court finds itself under the necessity of making application of Art. 848, C. C. P., which expressly authorizes a reversal as well upon the facts as upon the law. *469If any fact could be discovered in the record which would warrant the penalty assessed this court would not disturb itself' with the weight of the testimony supporting such fact, but in the absence of evidence to support the finding we must in good conscience reverse the judgment.
Various complaints were registered against the court’s instructions. We advert to only one. Section (d) of paragraph nine was objected to as requiring the jury to find that deceased did not intend to kill appellant before the latter would be entitled to kill deceased as against an attack which appellant did not believe to be deadly, the criticism being that appellant’s rights could not depend on the intent of deceased, but only upon his (appellant’s) own intent. We call attention to this matter so that in event of another trial the charge may be so worded as to avoid the criticism.
The State’s motion for rehearing is overruled.
Overruled.
Morrow, P. J., absent.