The opinion
ON REHEARING
January 23, 1924.
MORROW, Presiding Judge.
The motion for rehearing challenges the correctness of the ruling of the court upon various matters discussed in the original opinion. The remarks complained of transgressed no constitutional or statutory provision. In deciding whether the argument is of a nature demanding a reversal of the judgment, the language used is not alone the test. The evidence and the verdict must be considered. Hart v. State, 57 Texas Crim. Rep., 21 ; Davis v. State, 48 Texas Crim. Rep., 466 ; Borrer v. State, 83 Texas Crim. Rep., 199 .
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Under the State’s evidence, the assault and the motives inspiring it are not such as would warrant the conclusion that the penalty-assessed was the result of passion due to the argument of counsel.
Concerning the complaint of the failure to use the word “unlawful” in the seventh paragraph of the charge, it is argued that the appellant might have inflicted the injury upon Bullock with a deadly weapon with malice aforethought with intent to kill him and the act still not be unlawful. That is true because that might have been justified, but if the jury believed that an assault of the nature mentioned above was made while tile mind of the accused was not under the influence of passion produced by an adequate cause and he was not acting in self-defense, it could hardly be said that the assault was other than unlawful. The evidence suggests no justification save self-defense, no mitigation save passion rendering the mind incapable of cool reflection.
The paragraph of the charge in question, while omitting the word “unlawful,” gives a specific instruction to acquit if the assault was made under the influence of a sudden passion produced by adequate cause or was made in self-defense, or if upon those issues the jury entertained a reasonable doubt. There is no such fault in the charge mentioned as to warrant a reversal. Particularly is this true when considered in the light of Art.. 743 of the C. C. P., which forbids a reversal because of a defect in the charge not calculated to injure the rights of the accused. Green v. State, 32 Texas Crim. Rep., 298 .
As stated in the original opinion, the calling of the injured party in rebuttal was made proper by the testimony of the accused imputing to the injured party certain acts. He was with propriety recalled to deny the version given by -the appellant of the incidents of the assault. The fact that in-this examination there was some repetition of the matters gone into on the original examination of Bullock would not vitiate the verdict. The matter of the order of presenting evidence and of hearing testimony in rebuttal is discretionary with- the trial court, and in the absence of facts clearly showing an abuse of this discretion to the prejudice of the accused, a reversal would not be justified. Beeson v. State, 60 Texas Crim. Rep., 39 ; Dickson v. State, 66 Texas Crim. Rep., 270 , 146 S. W. Rep., 914 ; Montgomery v. State, 68 Texas Crim. Rep., 78 , 151 S. W. Rep., 813 ; Flowers v. State, 68 Texas Crim. Rep., 547 , 152 S. W. Rep., 925 ; DeLerosa v. State, 74 Texas Crim. Rep., 604 , 170 S. W. Rep., 312 ; Thomas v. State, 83 Texas Crim. Rep., 325 ; Brown v. State, 88 Texas Crim. Rep., 55 ; Anselmo v. State, 82 Texas Crim. Rep., 595 ; Mandosa v. State, 88 Texas Crim. Rep., 84 , 225 S. W. Rep., 169 .
The motion for rehearing is overruled.
Overruled.