The opinion
on appellant’s motion for rehearing.
BEAUCHAMP, Judge.
Appellants have filed a motion for rehearing in which they discuss at length the logic of the opinion treating the testimony of Johnnie Lindsey, wherein he said that he and his brother did not go to the filling station for the sole purpose of beating up and killing the deceased.
Whether or not this testimony was over-emphasized in the opinion is immaterial. The facts reviewed show a most brutal beating by the appellant Bennie Lindsey, while Johnnie, with his gun, kept a witness from interfering to aid his friend, the deceased. The entire circumstances of the killing were considered in arriving at a conclusion.
The reasonableness of the defensive testimony was before the jury which had a right to find, under the instruction of the court that they did intend to kill the deceased. The serious wounds on the head of their victim, inflicted by the shoe heel of Bennie Lindsey, were of an extent and inflicted under circumstances that thoroughly justified the jury’s verdict. The wounds on the face were visible to both of the appellants and were of an extent to materially support the jury’s finding.
We said in Ammann v. State, 165 S. W. (2d) 744 , that “Such intent may be inferred when the instrument used in committing the assault is a deadly weapon. If the weapon used is not deadly, the intent to kill on the part of the accused may be ascertained from and shown by the surrounding facts and circumstances.” See Branch’s P. C., Section 1636, and authorities there discussed.
Added to the usual circumstances as described in the original opinion, both appellants were former prize fighters. They were in their thirties. Each weighed about a hundred and eighty pounds and they were well muscled, healthy men, while the deceased was a fat man and in his fifties. The physical advantage of the assailants may also be considered.
We think the conclusion reached in the original opinion was correct. The motion for rehearing is overruled.