The opinion
WOODLEY, Judge,
(dissenting).
The jury was told in the court’s charge to acquit if they found or had reasonable doubt that appellant killed J. B. Bor-roum to prevent him from killing or seriously injuring her by means of a hammer reasonably calculated from the manner of its use by J. B. Borroum to kill or inflict serious bodily injury upon her.
The jury was instructed to find that the killing was justified if they believed or had reasonable doubt that at the time of the homicide the deceased was then in the very act of making *557 upon the person of the defendant an unlawful and violent attack which might result in harm less than death or serious bodily injury, and that the defendant resorted to all other means for prevention of such harm save retreat.
Also in the charge an acquittal was authorized upon a belief or reasonable doubt that J. B. Borroum was in the act of making an unlawful attack which might result in death or serious bodily injury and that such attack created in the mind of the defendant an expectation or fear that she was in danger of losing her life.
It was appellant’s testimony that at the time she shot her husband “Well, he started to throw that hammer at me, and I just up and shot.”
The act of the husband in drawing back the hammer to throw it did not constitute such use of it as to require a charge under Art. 1223 P.C. Lightfoot v. State, 164 Texas Cr. Rep. 73 , 296 S.W. 2d 554 ; Gunn v. State, 95 Texas Cr. Rep. 276 , 252 S.W. 172 .
The court’s charge fully protected the rights of appellant under her testimony. Threadgill v. State, 156 Texas Cr. Rep. 157 , 239 S.W. 2d 813 ; Gunn v. State, supra.
The introduction in evidence of the pictures did not result in inflaming the minds of the jury against appellant as is demonstrated by the fact that the minimum punishment was assessed.
I respectfully dissent.