ON MOTION FOR REHEARING.
LATTIMORE, Judge.In his motion for rehearing appellant insists that we should reverse this case because there was no charge on circumstantial evidence, the charge given being excepted to for such reason. We do not think this a case on circumstantial evidence. Positive proof was put before the jury of the fact that appellant struck deceased with a billiard cue; that he got astride the prostrate body of deceased as he lay on the concrete 'floor and beat him in the face with his fist as hard as he could, and stamped him with his feet. A doctor who came in while appellant was so engaged testified that deceased was *507practically dead when appellant was pulled off his body. The doctor said he died from the effects of the violence inflicted.
It is urged that the charge was defective for not instructing the jury to acquit unless appellant had the specific intent to kill. Paragraph eleven of the charge is as follows:
“You are further charged that before you can convict the defendant of murder you must find and believe from the evidence beyond a reasonable doubt that at the time of the homicide, if any, the defendant had the specific intent to kill the deceased.”
We find nothing wrong with the court’s charge in this regard, nor in his definition of malice aforethought.
Complaint is made of the failure of the court to charge that appellant had his right of self-defense as against any unlawful violence or assault, — and specifically that in his charge on aggravated assault the court gave no instruction on appellant’s right of self-defense in case his offense, if any, was not deemed greater than aggravated assault and in this connection our attention is called to the cases of Forest v. State, 300 S. W., 51, and Rojas v. State, 91 S. W. (2d) 370. In the Forest case it became necessary to reverse for other reasons, but we called attention to the fact that a charge on aggravated assault should be accompanied by one instructing the jury on the right of the accused to defend himself against an attack less than deadly, which should be given in an appropriate case. The Rojas case, supra, and other opinions of this court illustrate and emphasize the point. The Rojas case was one in which, upon indictment charging assault to murder, the accused was convicted of aggravated assault, and was reversed because the trial court had refused to charge on the right of self-defense against such violence and assault as constituted aggravated assault. In the instant case self-defense was properly charged as applicable to the murder case involved, but had the conviction been for aggravated assault, we might have been forced to reverse because the jury were not instructed as against an assault less than deadly, or less than likely to inflict serious bodily injury.
The appellant in this case having been given fully in the charge all he was entitled in the matter of an instruction on self-defense in a murder case, and having been convicted of murder, we are unable to agree with apellant that any injury appears.
The motion for rehearing will be overruled.
Overruled.