The State has filed a motion for rehearing insisting that our original opinion affirming the judgment was correct and that we fell into error in granting appellant's motion for rehearing and reversing. It is insisted that regarding the court's charge as a whole there could have been no injury to appellant, and no probability of the jury misunderstanding the charge, and therefore the case should be affirmed. After again carefully examining the charge we are unable to agree to the state's contention. If the court had instructed the jury substantially that attempted use of violence to one's person, or *Page 81 the apparent use of such attempted violence which fell short ofjustifying appellant in acting in self-defense as it reasonablyappeared to him from all the circumstances at the time, — but that if such attempted violence or apparent attempt thereat, in connection with all the other facts and circumstances in evidence, created in appellant's mind such sudden passion of anger, rage, resentment or terror as rendered his mind incapable of cool reflection, and that this condition of mind under said circumstances would have been created in the mind of a person of ordinary temper then it would be deemed adequate cause, — there could have been no opportunity for a misconception on the jury's part of what the court was evidently undertaking to explain to them. We have been unable to bring ourselves to say that the charge as given was not harmful for the reasons stated in our opinion upon appellant's motion for rehearing.
For the reasons given the state's motion for rehearing will be overruled.
Overruled.