x999-2" type="rehearing">

ON STATE’S MOTION FOR REHEARING.

HAWKINS, Presiding Judge.

It is the State’s contention that the effect of our original opinion is to read into our present murder statutes (Articles 1256, 1257b, 1257c, Vernon’s Ann. Texas P. C., Vol. 2,) “adequate cause” as a matter of law. It was not our intention to so do, nor do we think our opinion can reasonably be so construed.

Art. 1257c (Acts 42d Leg., page 94) reads as follows: “In all cases tried under the provisions of this Act it shall be the duty of the Court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.”

The trial court advised the jury as to the terms of said statute, and made application thereof as follows: “You are further instructed that if you believe from the evidence, or have a reasonable doubt thereof, from all the facts and circumstances in evidence, both those occurring at or about the time of the homicide, or prior thereto, that the mind of the defendant was in such condition of sudden passion arising from an adequate cause as to render it incapable of cool reflection, and that such cause or causes, if any, was such as would have commonly produced a degree of anger, rage, resentment, or terror, in a *674 person of ordinary temper sufficient to render the mind incapable of cool reflection, and that, while in such condition of mind, the defendant committed the offense charged in the indictment in this cause, then the penalty assessed cannot be more than five years in the penitentiary.”

Under ordinary circumstances the application so made by the trial court would be all that is required as has been heretofore held in Youngblood v. State, 121 Texas Cr. R. 465, 50 S. W. (2d) 315; Privett v. State, 123 Texas Cr. R. 86, 57 S. W. (2d) 1102; Smith v. State, 124 Texas Cr. R. 389, 61 S. W. (2d) 835; Butler v. State, 121 Texas Cr. R. 288, 51 S. W. (2d) 384. We are also mindful of the fact that in the Butler and Privett cases (supra) and also in Hettich v. State, 130 Texas Cr. R. 580, 95 S. W. (2d) 113, we said the trial court was not called upon to group or enumerate the various things claimed to have produced in accused’s mind a condition which rendered it incapable of cool reflection. We now reaffirm such statement as a sound legal principle in the ordinary case where the issue of a killing without malice arises.

If the facts raise the issue of a killing by one who because of his own conduct is deprived of the perfect right of self defense, yet does still have under certain state of facts, the imperfect or impaired right of self defense which makes applicable Art. 1257c (supra), how is the jury to know it unless the trial court has in appropriate terms in the charge applied the law to the facts as developed from the evidence?

We take the following to be a sound legal proposition supported by the many' authorities cited in our original opinion from Branch’s Ann. Texas P. C. If appellant’s conduct was intended by him to bring on trouble with Cook, and was calculated to and did cause Cook to strike appellant, but appellant had no intention to kill Cook, and the jury should find the facts so to be, and should further find that the result of the blow by Cook caused appellant to have a reasonable apprehension that he might suffer death or serious bodily injury at the hands of Cook, and further find that there was created in appellant’s mind a degree of anger, rage, resentment or terror which rendered his mind incapable of cool reflection, and that the facts and circumstances were such as would have produced such state of mind in a person of ordinary temper, and that while in such state of mind appellant had killed Cook, the jury, if they found such to be the facts, would not have been warranted under the provision of Art. 1257b in assessing a greater punishment than *675 five years in the penitentiary. If appellant killed Runnels while trying to kill Cook under the same circumstances the punishment would be the same. See Solis v. State, 76 Texas Cr. R. 230, 174 S. W. 343.

We are not undertaking to set out a form of charge, but it occurs to us if the evidence raises the issues suggested in the foregoing statement under the facts, a further application of Arts. 1257b and 1257c would be called for in substance, as indicated.

In reply to the State’s motion for rehearing appellant calls attention to his bills of exception complaining of the argument of the attorney for the State as referring to the failure of appellant to testify. A further examination of said bills leads the present writer to the conclusion that in some of the arguments counsel came dangerously close to violating the statute (Art. 710, C. C. P.) which forbids a reference to the failure of the defendant to testify as a witness.

Upon another trial, if appellant does not testify, it would be much safer for the representative of the State to discuss the admitted evidence, thereby avoiding the question raised in the bills mentioned.

The State’s motion for rehearing is overruled.

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