ON APPELLANT’S MOTION FOR REHEARING.
DAVIDSON, Judge.Appellant insists with much earnestness that the facts are insufficient to show that deceased came to his death as a result *516of a blow on the head with a beer bottle inflicted by the appellant.
There is no question but that appellant struck the deceased over the head with a beer bottle and that deceased died within a short time thereafter.
Dr. Fussell, a duly licensed physician, who arrived at the scene of the difficulty before the deceased died, testified that deceased came his death as a result of concussion of the brain and that he based such conclusion upon the fact that deceased’s eyes were extremely dilated.
Dr. Wiedeman, who saw the deceased within twenty or thirty minutes after death and before the body had been moved, testified that “there was a mashed area over the left part of the skull, just in front and somewhat above the ear, which showed that what a doctor would say he was struck with some blunt object . . . .”
Upon the testimony stated, the jury was warranted in finding that the deceased died from concussion of the brain caused by the appellant striking him on the head with a beer bottle.
While it is true there was much testimony indicating that the death of deceased was occasioned by an impaired heart condition and was not a result of the blow to the head, we cannot say as a matter of law that the jury was bound thereby. It was the province of the jury to accept the testimony of the state’s witnesses and to reject the testimony of the witnesses for appellant.
In addition to what we said in the original opinion, holding that the rule announced in the case of Reeves v. State, 131 Tex. Cr. R. 560, 101 S. W. 2d 245, was not here controlling, it is pointed out that the lack of proof upon which the reversal was ordered in the Reeves case — that is, that the' physician there stated no facts upon which he expressed the opinion as to the cause of death — was, in the instant case, supplied. Here. Dr. Fussell stated the condition upon which he based his opinion— which was that of the dilated eyes. Whether that was sufficient, or not, was for the jury’s determination.
We remain convinced that appellant’s affirmative defenses— that is, a lack of intent to kill and that the deceased died from a heart ailment rather than from the blow to the head — were sufficiently submitted by the trial court in his charge:
*517Believing our original conclusion correct, the motion for rehearing is overruled.
Opinion approved by the court.