ON MOTION FOR REHEARING.
WOODLEY, Judge.The state insists that we were in error in holding that appellant was entitled to an unrestricted charge on self-defense.
The real question is, does the evidence raise the issue of self-defense against an attack threatening death or serious bodily injury, or is the evidence such as to raise only the right to kill in defense against a violent and unlawful assault not involving fear of death or serious bodily injury?
The right of self-defense exists in all cases of unlawful attack, but the right to kill does not co-exist in all such cases. See Forest v. State, 108 Tex. Cr. R. 159, 300 S.W. 51.
It is only in the case of homicide in defense against an unlawful attack other than one giving rise to a reasonable apprehension of serious bodily injury or death that the right to kill is limited by the requirement that no more force than neces*284sary be used. Such character of attack is described in Art. 1224, P.C., wherein the right to kill in defense therefrom is further limited by the requirement that the killing take place while the unlawful attack is in progress, and that all other means be resorted to before killing the aggressor.
If the evidence raises the issue that the unlawful assault being defended against was such as to create in the mind of the accused a reasonable apprehension of death or serious bodily injury, he is entitled to have the jury instructed on his right to kih in defense against such attack, unrestricted by a charge on excessive force.
Appellant testified that having seen what the deceased had done to the others, he “figured” that he was “dangerous to my life.” He further testified that he was afraid the deceased was going to beat him to death because he was a much larger man; that “he thought he was going to have to shoot him to save his own neck.”
The deceased was shown to be 28 years of age and his weight was estimated by one witness at from 230 to 240 pounds. He was described as “a well-built man, one of the best.”
Appellant testified that he was 58 years of age and weighed 175 pounds, and that he was a sick man — had an ulcerated stomach.
It must be remembered that it is the right of an accused to have submitted to the jury every defensive issue that is raised by the evidence whether such evidence be strong or weak. See Perez v. State, 146 Tex. Cr. R. 241, 172 S.W. 2d 314; Pounds v. State, 142 Tex. Cr. R. 52, 150 S.W. 2d 798; Matterson v. State, 142 Tex. Cr. R. 250, 152 S.W. 2d 352.
We remain convinced that appellant’s testimony raised the issue that an unlawful attack made by the dceased upon appellant was such as to create in his mind a reasonable apprehension of serious bodily injury at the hands of the deceased.
The jury should have been instructed as to the law applicable to appellant’s right to defend himself against an attack giving rise to apprehension of death or serious bodily injury, as requested by appellant, as well as an instruction on self-defense against a milder attack such as described in Art. 1224, P. C.
*285The state’s motion for rehearing is overruled.
Opinion approved by the court.