ON MOTION FOR REHEARING.
KRUEGER, Judge.In his motion for rehearing appellant asserts that we erred in several respects in disposing of this case on the original submission. He first contends that we were in error in holding that the trial court did not commit any error in declining to give his Special Instruction No. 2 to the effect that in passing upon the guilt or innocence of the defendant, Baldomero Martinez, the jury may “take into consideration the knowledge, if any, of Jose Martinez as to the dangerous character of the deceased, and his knowledge, if any, of a previous difficulty with the deceased, and his knowledge if any, that the deceased was a marihuana smoker, and the conditions which confronted the said Jose Martinez, as viewed from his standpoint, at the time of the alleged homicide.” In our opinion, this charge, if it had been given, would have been on the weight of the evidence in specifically singling out and directing the jury’s attention to certain matters and thereby giving undue emphasis to certain facts. Furthermore, any knowledge on the part of Jose Martinez as to the dangerous character of the deceased, unless the same had been imparted to the appellant, could hardly have influenced or justified the appellant in his actions. Consequently the refusal to give this instruction was not detrimental to the rights of the appellant.
Appellant next contends that we erred in holding that the trial court committed no error in failing to instruct the jury that the defendant had a right to arrest the deceased who committed an unlawful assault in his presence, and that in doing *324so, he had a right to use all reasonable force necessary to apprehend him. If the evidence had reasonably raised that issue, appellant might have been entitled to such an instruction, but, in our opinion, the evidence wholly fails to' raise such an issue. It appears from the testimony in the record that appellant and his co-defendants met the deceased at a dance hall and invited him to fight; that the deceased, in company with another person, left the dance hall and went up town; that appellant and his co-defendants soon thereafter left the dance hall, because, as they claimed, they were afraid that the deceased might return and start a difficulty; that after they had gone up town they saw the deceased on the street; that they got out of their car and started toward him and he began to flee; that they pursued him, ran him down, struck him with a hammer and stabbed him to death; that when the officer appeared on the scene and took hold of appellant, his. co-defendants jerked the officer loose, released the appellant and then all of them fled. When appellant reached his car he remarked: “That is the end of that white pimp s— of a b — .” If these facts indicate an intent on the part of the appellant and his co-defendants to arrest the deceased, we admit that we are unable to comprehend the meaning and import of such language.
Appellant’s third contention is that there is no evidence that he stabbed the deceased or that his co-defendant, Jose Martinez, stabbed him to death. It is true that no one saw. a knife in the hands of either Jose Martinez or the appellant, but appellant had a hammer and he and Jose Martinez were pursuing the deceased. They struck him on the head with a hammer. They overtook him, a struggle ensued, and deceased soon fell to the ground with a number of stab wounds in his chest and in his body, from the effects of which he died before he could be carried to a hospital. The doctor who attended the deceased testified that he found a “stab wound under the left nipple, one above and across the left of the flank and one in the scalp.” He examined the one below the left nipple and found that it went into the heart, that is, it penetrated the heart, and that this wound caused the death of the deceased; that these wounds were made with a sharp instrument. The remark by appellant to the effect that “that is the end of that white pimp s— of a b — ” indicates their intent. It occurs to us that it was immaterial whether the appellant stabbed the deceased or whether Jose Martinez stabbed him to death. They were acting together with a common intent and a common design; and the act of one *325was the act of both or all, and each is responsible for the act of the other. See Mitchell v. State, 36 Tex. Cr. R. 278.
Believing that the proper disposition of the case was made on the original submission, appellant’s motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.