¶1 ON REHEARING.
¶2 June 9, 1909.
¶3 This case was affirmed on a previous day of this term, and now comes before us on motion for rehearing.
¶4 Appellant complains that the court erred in holding that the following charge of the court is correct: “If from the evidence you are satisfied, beyond a reasonable doubt, that the defendant, John Barr, on or about the time charged in the indictment, in the county of Mc-Lennan and State of Texas, with a deadly weapon, and with malice aforethought, did assault the said Gr. W. Tilley, with intent then and there to kill and murder him, and if you are further satisfied by the evidence, beyond a reasonable doubt, that said assault was not made under the immediate influence of sudden passion, produced by an adequate cause, as the same is hereinafter explained to you, and not in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, then you will find the defendant guilty of an assault with intent to murder, and so say by your verdict.” To support appellant’s contention he cites us to the case of Bagley v. State, 103 S. W. Rep., 874. The Bagley case is practically in point in favor of appellant’s contention, but after a careful consideration of the charge, in the light of said authority, we are constrained to believe that the authority is incorrect, and that the charge of the court in this case was a proper presentation of the law applicable to the facts of this case. So believing, the Bagley case is hereby overruled.
¶5 Appellant’s motion for rehearing is accordingly overruled.
¶6 Overruled.