ON MOTION FOR REHEARING.
GRAVES, Judge.The district attorney of Harrison County files a motion for a rehearing suggesting that we were in error in our original opinion herein, and cites us to Art. 1266 of the Penal Code in which it is said:
“To constitute the offense it is necessary that the threat be seriously made, and it is for the jury to determine whether the threat, if made, was seriously made or was merely idle and with no intention of executing the same.”
We do not think it is shown from the evidence that this man seriously intended to kill the complaining witness. Nothing was present keeping him from doing so, if he thus intended, and we do not think the jury was justified in its conclusion that he did so seriously intend to carry out his statement made at such time.
The presence of the complaining witness on property under rental contract to appellant might or might not have con*409stituted a trespass upon appellant’s rights, depending upon their rental contract, but it does seem reasonably clear to our minds that the testimony shows that appellant claims he was merely attempting to protect himself and his property, and under Art. 1267, P. C., if he was merely trying to prevent the commission of some unlawful act by another; that is the taking of appellant to town against his consent, we think he would be entitled to have Art. 1267 P. C. given in charge to the jury in the event of a further trial herein.
The motion is overruled.