Upon the corrected record, we find that Bill of Exception No. 4 requires consideration. The bill complains of the refusal of the court to instruct the jury on the law as set forth in article 1223, P. C., 1925, touching the presumption of intent to kill or do serious bodily injury arising from the use of a deadly weapon. From the bill and from the evidence it appears, as shown in the original opinion, that in the conflict there was used an iron pipe about half an inch in diameter, twenty inches long and weighing about one or one and a half pounds. It was shown that the deceased was about six feet tall. There was opinion evidence that the instrument, in the manner used, was a deadly weapon. It is thought that in refusing to give the instruction requested the court fell into error. See Carter v. State, 97 Tex.Crim. Rep.; Hoobler v. State,114 Tex. Crim. 94; Dennis v. State, 101 Tex.Crim. Rep.; Gaither v. State, 109 Tex.Crim. Rep.; Lowe v. State,111 Tex. Crim. 137. See, also, precedents cited in Vernon's Ann. Tex. P. C., 1925, vol. 2, art. 1223, note 1; also, 1933 Supplement, p. 136, and notes.
The motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded. *Page 109