Appellant was convicted for the murder of Olin H. Hemmenway and the jury assessed his punishment at five years in the penitentiary.
Appellant and Hemmenway were employees of an ice plant in Beaumont where the killing occurred.
According to the state’s evidence, the deceased had been fired or laid off by appellant on the day of the homicide, and had gone to the plant to get his belongings; he was shot and killed without justification by appellant, who had been drinking.
Appellant testified that the deceased attacked him with a 2-pound hammer; that he fired in self-defense while the assault was in progress and after the deceased had grazed his eyebrow and as he was again striking at him with the hammer. He testi*609fled also that he believed at the time he fired the shot that the deceased was about to execute a previous threat to kill him.
It was agreed by the state and appellant that the 2-pound hammer, identified by appellant as having been used by the deceased, was a deadly weapon, and that if a person were struck in a vital part of the head it would inflict serious bodily injury and produce death.
The trial court, in his charge, instructed the jury on the law of self-defense and communicated threats, but failed to charge on the presumption arising from the use of a deadly weapon by the deceased.
The testimony called for the application of Art. 1223, P.C., and it should have been charged upon. See Hurst v. State, 151 Tex. Cr. R. 615; 210 S.W. (2) 594; Whatley v. State, 141 Tex. Cr. R. 436, 149 S.W. (2) 98; Gay v. State, 134 Tex. Cr. R. 356, 115 S.W. (2) 929.
The omission was timely called to the court’s attention in the objection to the charge and appellant excepted to the overruling of such objection.
Because of the error in the charge, the judgment is reversed and the cause remanded.
Opinion approved by the court.