Cook v. State

Appellant contends in his motion that the trial court erred in failing and refusing to charge on a milder attack as set forth in Article 1224, P. C. It is noted therefrom that it is necessary that the injured person shall be in the act of making an unlawful and violent attack at the time the right shown in Art. 1224, supra, arises. There is no such violent attack shown herein. An expected or apparent attack alone was shown by the testimony; that is, appellant's testimony shows that the injured party had arisen and was placing his hand in his pocket, but made no further demonstration at the time he was struck and injured. We think that a charge on a lesser or milder attack was not called for.

The motion for rehearing will be overruled.