ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.In a very forcible motion for rehearing appellant urges that the matter complained of in Bill of Exceptions No. 16 was an error which calls for a reversal of the judgment. The motion is predicated on the proposition that the bill reflects that the cross-examination of appellant by the state over objection proved not only the disparity in the comparative size and strength of appellant and deceased, but also proved that the latter was weak and sickly. Of course, appellant was before the jury and they could appraise his physical condition from his appearance, but we observe from the statement of facts that without objection the state elicited from appellant on cross-examination that he was six feet tall, weighed about 175 pounds and was in “perfect physical condition.” The trial court directed the bill to be in question and answer form, but when analyzed it shows that in connection with appellant’s evidence on cross-examination of his own physical condition, he further testified in substance, over objection, that he knew as a fact that H. C. Love wasn’t over five feet, seven inches high; that he did not know what Love weighed, but imagined 130 pounds was about right; that he did not know that Love was a sickly kind of fellow; that he did testify that Love had quit working in the store for awhile, voluntarily, and went out and worked in the harvest field with a combine; that he did not know that Love had to quit his job of working with that combine before the season was over because he wasn’t physically able to stand the work involved. We call attention to this because to our minds the bill in question only presents objection to evidence as to the comparative size and weight of appellant and the deceased.
Appellant particularly challenges the following general statement found in our original opinion in discussing Bill of Exceptions No. 16, “Surely, if the testimony had shown that appellant, rather than the deceased, was a much smaller man, such would doubtless have been admissible; then the facts being shown to be the opposite, we think the state had a right to let the jury know the size and condition of the deceased, such testimony coming from the appellant and therefore known to him.” We think the language employed was too broad, and perhaps leaves the impression that such evidence would be material regardless of whether the issue of self-defense was in the case. If *358a general statement as to the law should be employed, which is always of doubtful propriety, we think it would be more correct to say that where a homicide is committed with firearms, or other deadly weapon, and no issue of self-defense is in the case, evidence of the relative size and strength of accused and deceased would, ordinarily, be immaterial, but in so far as it might be germane to some issue in the case it would be receivable in evidence. The cases specially relied on by appellant have been again reviewed. They are Hickman v. State, 93 Tex. Cr. R. 407, 247 S. W. 518; Watson v. State, 123 Tex. Cr. R. 360, 59 S. W. (2d) 126; Watson v. State, 120 Tex. Cr. R. 482, 48 S. W. (2d) 623; Burton v. State, 77 Tex Cr. R. 314, 178 S. W. 334; Taylor v. State, 41 Tex. Cr. R. 148, 51 S. W. 1106. These cases support appellant’s proposition that where the killing occurs with a firearm, and the issue of self-defense is not raised, evidence of disparity in the size and strength of accused and deceased is ordinarily immaterial. Such appears to be the holding whether the evidence was offered by accused and excluded on objection from the state, or offered by the state and admitted over objection from accused. However, none of the cases were reversed because of the admission or exclusion of such evidence, and about as far as any of them go was to say that the evidence seemed to be immaterial, and in the event of another trial should not be admitted.
It would be ill-advised and unsound to say that in no case where the killing was committed with firearms, and the issue of self-defense was not raised, that evidence of disparity in the size and strength of accused and deceased would be admissible because that must of necessity depend on the facts of the particular case. We are inclined to the view that the case now before us furnishes an illustration of where such evidence was admissible. It appears in said Bill of Exceptions No. 16 that when appellant was asked on cross-examination by the state as to the size of deceased, and appellant objected, the trial judge said, “In view, of the turn of this case at this time, I overrule the objection.” We find no explanation of what “turn” of the case was in the court’s mind, but evidently the development of the case had been such that he deemed the evidence receivable. The case had so developed that the state was contending that the testimony of appellant and his wife as to the claimed misconduct of deceased with the wife was fabricated, and there can be no dispute but that such issue was raised. It will be recalled that appellant had testified that while he and Dillard were in the back seat of the car after they left the cafe, appellant, while feigning sleep or unconsciousness, witnessed his wife and de*359ceased, who were on the front seat, hugging, fondling and kissing each other. The natural reaction of the husband would be to violently resent such conduct toward his wife instantly, unless deterred therefrom by the superior strength of the one guilty of such conduct. There was no such reaction on the part of appellant. There being no such restraining influence present in the instant case, it occurs to us that evidence of such fact, that is, inferiority in size and strength of deceased to that of appellant, was proper to go to the jury on the issue of whether such conduct occurred as claimed by appellant and his wife, or whether their evidence regarding it was fabricated.
Appellant complains seriously because in dealing with his Bill of Exceptions No. 5, which was directed at the argument of District Attorney Croslin, we made no specific holding regarding same. The argument complained of was as follows:
“Now, gentlemen, you have a serious responsibility in a case of this kind. We all do. I know that we in representing the State have a serious responsibility. You have a duty to perform to Crosby County and under the circumstances in this case to Floyd County and the people of West Texas to impose upon this man a penalty that will say to him, ‘Fred Jones, when you have committed the offense of murder, you are going to pay the price provided by the law.’ ”
Appellant lays much stress upon the fact that the court certified in the bill that no evidence was introduced showing that the jury had any duty to perform to Crosby or Floyd County, or to West Texas. From this it is argued that the district attorney was declaring to the jury new facts not in evidence. We do not think the argument subject to such contention. The law laid upon the jury the duty to reach such a verdict as was demanded by the evidence, and this we construe to have been the effect of the argument. See McKenzie v. State, 116 Tex. Cr. R. 395, 11 S. W. (2d) 172, at p. 179; Maddox v. State, 138 Tex. Cr. R. 210, 133 S. W. (2d) 977; Cloud v. State, 150 Tex. Cr. R. 458, 202 S. W. (2d) 846. We do not review the cases relied upon by appellant. Some are distinguishable, and in others the argument was held reversible because the jury were told what verdict the “citizens” or the “people” expected from the jury.
All other matters urged in the motion for rehearing have been considered, and the question again reviewed. Believing they were properly disposed of in our original opinion, they will not be written upon further.
*360The motion for rehearing is overruled.