Posos v. State

ON MOTION POE REHEARING.

MORROW, Presiding Judge.

Upon a reconsideration of the record in the light of the able motion for rehearing and oral argument thereon, we think we were wrong in holding that the paragraph of the charge quoted in the original opinion embracing the substance of Art. 1147 of the Penal Code, was not prejudicial to the appellant. Art. 1147, supra, reads thus:

“The instrument or means by which a homicide is committed are' to be taken into consideration in judging of the intent of the party offending’; if the instrument be one not likely to produce death, it is not to be…