ON APPELLANT’S second motion for rehearing
DAVIDSON, Judge.Appellant insists that the evidence raises the issues of self-defense from the lesser attack, as provided by Art. 1224, P. C.
The facts have again been examined in the light of this contention.
It will be remembered that the facts presented two distinct and variant issues: One, as shown by the state witnesses, was that the death of deceased was caused by appellant pounding deceased’s head against the pavement. The other, as shown by the testimony of the appellant and his witnesses, was that deceased came to his death from an injury to his head received in falling against an automobile when knocked down in a fist fight by the appellant.
Appellant’s defensive rights under such an issue, as also the lack of an intent to kill, was amply covered in the court’s charge.
Neither the state nor appellant contended that any blow inflicted in the fight caused the death of deceased.
We remain convinced that the trial court was not in error in failing to submit self-defense from the lesser attack.
Appellant’s second motion for rehearing is overruled:
Opinion approved by the court.