ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.In our original opinion we set out Special Charge No. 1 requested by appellant, and then said that Special Charge No. 2 while in different language was to the same practical effect as No. 1. In this we were in error. We here copy Special Charge No. 2, italicising the language which corrects the omission from No. 1, and which brings it within the purview of Art. 1224, P. C. “In connection with the instructions-heretofore given you, and as a part of the law in this case by which you are to be governed in rendering your verdict, you are further instructed, that even though you should believe and find from the evidence that the attack made upon the defendant Edgar Prater by the deceased Cecil Moore, if any you find was so made, was not of such character or with such weapons as to put the said *629Prater in fear of losing his life or suffering serious bodily injury by reason thereof; but you should believe and find that in truth and in fact the said deceased Cecil Moore, at the very time he was killed, was in the act of making an unlawful and violent attack upon the person of the said Edgar Prater, and that the said defendant had no other reasonable and practical means of preventing the said attack, then in that event, if you so find the facts to be, or if you have a reasonable doubt thereof, you are instructed that the defendant would have a right to shoot and kill the deceased, and if you find that the killing of the deceased Cecil Moore took place under the circumstances and conditions above stated, or if you have a reasonable doubt thereof, you will acquit the defendant, and say by your verdict ‘Not guilty’.”
We have again examined the evidence and without setting it out, express the opinion that appellant’s testimony was such that if believed the jury might have reached a conclusion that the attack on appellant was unlawful and violent, but not of a nature to create in appellant’s mind an apprehension of death or serious bodily injury. If such conclusion should have been reached by the jury they were without information as to the law under such a finding. See Taylor v. State, 122 Tex. Cr. R. 507, 56 S. W. (2d) 646, and cases there cited.
A further consideration of the case leads us to the conclusion that the trial court should have given Special Charge No. 2 or one of similar import.
Appellant’s motion for rehearing is granted, the judgment of affirmance is set aside and the judgment of the trial court is now reversed, and the cause remanded.