text:
    WATSON et al. v. STATE.
    (No. 4622.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.
    On Motion for Rehearing, Jan. 16, 1918.)
    1. Cbiminal Law <©=>372(12) — Evidence oe Otiieb Forgeries — Coubse oe Conduct.
    Where other notes were in possession of defendants in connection with the forged note upon which the prosecution was founded, and the notes were all used by defendants to swell the apparent assets of the bank of which they were active officers, the admission of testimony tending to show that such other notes had been forged was not error, where such testimony was properly limited by the court’s charge to show a course of conduct.
    2. Criminal Law <©=>1174(4) — Harmless Ekbob — Separation oe Juey.
    Where it appears that a temporary separation of one juror from his fellows did not and could not have affected the verdict or impartiality of the trial, a reversal is not authorized under Vernon’s Ann. Code Cr. Proc. 1916, art. 745, prohibiting the separation of a jury after it is impaneled and sworn to try a felony case.
    3. CrijIiinal Law <©=>957(2) — Impeachment oe Vebdict — Testimony oe Jubok.
    It would be against public policy to permit impeachment of a verdict by testimony that after agreeing to the verdict a juror desired to retract.
    4. Cbiminal Law <£=957(2) — New Trial— Misconduct oe Juby.
    Testimony of a juror that, although he believed defendants not guilty, he acquiesced in a verdict of guilty because he wanted to go home was insufficient to authorize a new trial.
    5. Cbiminal Law <©=>1158(1) — Finding Based on Conelicting Evidence — Review.
    Where on motion for new trial after full investigation the court found upon conflicting evidence that the jury did not misuse accused’s failure to testify, such finding will not be disturbed on appeal.
    6. Fobgeby <©=>44(½) — Sueeiciency oe Evidence.
    In a prosecution of two defendants for forgery, evidence held sufficient to support a conviction of one only.
    On Motion for Rehearing.
    7. Cbiminal Law <©=>1035(5) — Mattees not CONSIDEBED BELOW — REVIEW.
    Where the contention that the insanity of a juror rendered the verdict void was not raised in the court below, it will not be considered on appeal, as relief against void judgments upon matters not contained in the record on appeal must be sought in the court below in the first instance.
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    J. E. and W. R. Watson were convicted of forgery, and appeal.
    • Judgment affirmed as-to defendant first named, and reversed and remanded as to the other.
    Boyd & Bell and Geppert & Wroe, all of Teague, for appellant E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellants were jointly indicted, tried, and convicted of forgery. The instrument which they were charged with forging was a note for $151.25, dated Teague, Tex.; August 20, 1916, payable to the Farmers’ & Merchants’ State Bank or order at Teague, Tex., signed “G. F. Stilwell.” The note was on one of the printed forms of the Farmers’ & Merchants’ State Bank of Teague. G. S. Stillwell testified that he had been a customer of the hank, but had ceased to do business with it about 90 days before it was taken over by the state department. He further said that he did not sign the note nor authorize any one to sign the note for him. 1-Ie said he did know who signed it; the signature did not look like his, and he had never been requested to pay it.

A witness named John Bagett testified to his acquaintance with appellants, and that they were connected with the bank mentioned, and that he had worked for them five years prior to June, 1916; that J. E. Watson was active vice president, and W. R. Watson was cashier. He testified that he was familiar with their handwriting, and said:

“I think J. E. Watson wrote the body of this note, and the figures seem to be in his handwriting, the serial number.”

He said the handwriting on the note resembled J. B. Watson’s handwriting; that he was not positive who wrote it, but that it was shaded like J. E>. Watson wrote, and that was about all that resembled his handwriting ; that the note had no revenue stamp on it; and that he thought that all notes that were used as assets of the bank had revenue stamps on them.

Another witness, Ghancelor, testified that he had worked in the bank, knew appellants, and was familiar with their handwriting, and that J. E. Watson wrote the “$151.25 and the 8/20,” and it looked like he wrote the name of “G. S. Stillwell”; that all the writing on the note was written by the same party; that all the Watsons made loans and took notes for the bank when he worked there in 1911. Cross-examined, he stated:

“Yes, sir, I think J. E. Watson wrote the note but I didn’t see him do.it;” that the note had been shown him before; that he had formed the opinion that J. E. Watson wrote it; that that was his opinion when he took the stand.

He said:

“I am not uncertain about who wrote the name ‘Stilwell,’ but we will all hesitate. I did not have an opinion as to who wrote the note before I saw it.”

J. R. Moore testified that he was appointed receiver of the Farmers’ & Merchants’ Bank of Teague on the 29th of August, 1916, and that the note in question, and several other notes mentioned by him, were turned over to’him as such receiver; that the notes mentioned, including the one in question, when turned over to him, were listed separately from the other assets of the bank, and that, taking these notes into consideration, there were more assets than necessary to balance the hooks. Other witnesses testified that the Stillwell note, the one in question, was among the assets of the bank, and Bank Examiner McKinnon testified that he had examined the hank on various occasions, and that the appellants had assisted him in going over the assets when he requested them to do so; that he had talked to them all with reference to the notes; that he examined the bank in May, 1916, and that he had discussed with them various notes, including some of the notes described in the list which Receiver Moore identified; that he was not certain that he talked to W. R. Watson about these particular notes. Another witness testified that he was present when McKinnon went over the notes described by him with appellant, J. E. Watson. Several witnesses were introduced who testified that the notes mentioned by Moore, receiver, as in the list and which purported to bear the signature of the witnesses were never signed by them or under their authority. These witnesses declared that they had not been called upon to pay them. Several witnesses for the defendants testified that they were acquainted with the signatures of J. E. and W. R. Watson, and that in their opinion the signature to the Stillwell note was not written by either of them. They gave it as their opinion that part of the body of the note was written by J. E. Watson. There was some testimony that there was a package of notes kept on J. E. Watson’s desk which were not used in balancing the books of the bank, and to the fact that the notes that were used for that purpose bore revenue stamps, and that the Stillwell note was without revenue stamp.

Appellant presents three bills of exceptions: First, relating to alleged misconduct of the jury; second, with reference to refusal to instruct a verdict for W. R. Watson ; and the third, omitting the formal parts, is as follows:

“Be it remembered that upon the trial of the above entitled and numbered cause, after the state had rested, the defendants, J. E. and W. R. Watson, filed and presented to the court the following motion: ‘Now come J. E. and W. R. Watson, defendants herein, and move the court to exclude all the testimony introduced with reference to alleged collateral forgeries, because there has been no evidence introduced showing that either one of these defendants participated or was connected in any way wdth said alleged forgeries.’ * * * The court, after considering the above motion, overruled same, and that the said defendants, J. E. and W. R. Watson, then and there excepted in open court, and now tenders this bill of exception, and asks that the same be signed and. filed as a part of the record in this cause. [Signed hy attorneys for defendants.]”

This bill of exception is quite, meager. It fails to set out the evidence which it complains of the failure of the court to exclude or to identify with certainty or show the connecting circumstances rendering it inadmissible. Mallory v. State, 37 Tex. Cr. R. 482, 36 S. W. 750, 66 Am. St. Rep. 808; Phillips v. State, 50 S. W. 378; Kyle v. State, 53 S. W. 846; C. C. P. art. 744; Vernon’s Crim. Stats, vol. 2, p. 542, note 29, and cases cited.

We infer that the other forgeries mentioned in the bill relate to the various notes that were described in the testimony of Moore, the receiver of the bank, as having been listed and turned over to him, and those described by the witness McKinnon as having been discussed by him with the appellants in his examination of the affairs of the bank. Speaking of this discussion, he said:

“We had all the notes of the bank up there and we discussed them; had them up one by -one.”

And in this connection he identified from recollection a number of the notes described in the list referred to by witness Moore with reference to which notes the purported makers gave testimony to the effect that they were not executed by them or by their authority. This testimony was properly limited in the court’s charge, and if the question was properly raised, we cannot say that there was error in its admission. There was evidence from which the jury was authorized to form the conclusion that the various instruments mentioned were in possession of the defendants in connection with the note upon which the prosecution was founded, and that they were all put to a common use, namely, to swell the apparent assets of the bank of which the appellants were the active officers. Ham v. State, 4 Tex. App. 645; Mason v. State, 31 Tex. Cr. R. 307, 20 S. W. 564; Mallory v. State, 37 Tex. Cr. R. 482, 36 S. W. 751, 66 Am. St. Rep. 808; Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; and other cases cited in Branch’s Ann. P. C. p. 864, § 1412.

There were allegations asserting there were comments upon defendants’ failure to testify; that there was separation of the jury; that one of the jurors did not agree to the verdict; that there was evidence considered with reference to the character of appellants, not introduced on the trial. Three supporting affidavits were attached to the motion, one made by juror R. I-I. Red, one by juror Pyrtle Blount, and one by Eubanks, the officer in charge of the jury. Evidence was heard upon the motion, each of the 12 jurors and the officer mentioned testifying. The evidence relied on to show separation was the fact that the jurors occupied two rooms apparently in the courthouse, both of which were used for sleeping rooms, part of the jury sleeping in one, and part in the other; which rooms seem to have been across the hall from each other, and doors connecting them being open, and the jurors throughout their deliberations used the entire apartment. Also upon the fact that after the verdict had been agreed upon, written, and signed, and Eu-bank, the officer in charge, requested to advise the judge, and while they were waiting for the judge to come to the courthouse, one of the jurors, Red, assuming that the transaction was complete, went down the stairway and encountered the officer, Eubank, remarking in .effect, “We have played hell; we have written a verdict;” that the officer directed the juror to rejoin the others, which he did without contact or conversation with any other person or without any further conversation with the officer. The separation of a jury after it is impaneled and sworn to try a felony case is prohibited by statute (article 745, O. C. P.). Passing upon circumstances similar to those detailed, it has frequently been held by this court that a reversal would not result where it was shown affirmatively that there was no influence brought to bear upon the jury in consequence of the circumstance and no opportunity therefor. The purpose of the statute is to preserve the purity of the verdict, and where it is shown that a temporary separation of one of the jurors from his fellows did not and could not have affected the verdict or impartiality of the trial, a reversal is not required nor authorized. Robinson v. State, 58 Tex. Cr. R. 551, 126 S. W. 276; Watson v. State, 52 Tex. Cr. R. 87, 105 S. W. 509; Wakefield v. State, 41 Tex. 556; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; Jack v. State, 26 Tex. 1; Barnes v. State, 61 Tex. Cr. R. 37, 133 S. W. 887; Gallan v. State, 68 Tex. Cr. R. 200, 150 S. W. 1171; Webb v. State, 69 Tex. Cr. R. 413, 154 S. W. 1013; Guerrero v. State, 75 Tex. Cr. R. 558,171 S. W. 731; Lounder v. State, 46 Tex. Cr.. R. 125, 79 S. W. 552; Powell v. State, 49 Tex. Cr. R. 474, 93 S. W. 544; Branch’s Ann. P. C. p. 299, and cases cited; Vernon’s An. C. C. P. p. 562, and cases cited.

The receipt of other testimony reflecting upon the character of the appellants was disproved; in fact, there was no evidence supporting it.

The intimation that the juror Red, after agreeing to the verdict, desired to re- . tract his acquiescence, was a contested issue, and one upon which the court would not have been unauthorized to have found against the appellants. It is an inquiry, however, that we think could not legitimately be made. It is a character of impeachment of the verdict which is contrary to public policy. Turner v. State, 61 Tex. Cr, R. 103,133 S. W. 1052. The juror Red claimed that he consented to the verdict believing the appellants were not guilty ; that he told the foreman he desired to change his verdict; that the foreman told him he could not do so. This, as above stated, was controverted in substance, the foreman claiming that what occurred about it was in a joking manner, the juror Red remarking while they were waiting for the judge that, if he did not come pretty soon, he would take it hack. Red said, however, that when inquired of by the court that he acquiesced in it for the reason that he wanted to go home. Similar facts were passed upon against apjpellant’si contention in Bacon's Case, 61 Tex. Cr. R. 210, 134 S. W. 690, and in Pilot’s Case, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024, and the principle controlling these cases is affirmed in Henry v. State, 43 S. W. 340; Montgomery v. State, 13 Tex. App. 74; Johnson v. State, 27 Tex. 758.

On the question of alleged comment upon appellants’ failure to testify, it was claimed that such comment was made by the juror Bert McLellan and others not named. McLellan denied any- such comment. The juror Red claimed that during the deliberations and before the verdict, the juror Mc-Lellan remarked that, if the defendants were not guilty, they would have taken the stand. Most of the jurors testified that no reference to the appellants’ failure to testify was made in their presence. One juror besides Red claimed that he heard McLellan make the remark attributed to him, and one of two other jurors thought there was some reference to the fact that the appellants did not take the witness stand. The statute (article 790, C. C. P.) uses the following language :

“The failure of any defendant to testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

It has often been held to be the duty of the court to protect an accused against the use of his silence at a trial as a circumstance against him; and in compliance with this duty it has often been necessary to order a new trial. Where a defendant on trial fails to testify, it is a fact always known to the jury, and in recognition of this this court has drawn a distinction between the mere reference to the failure to testify and the consideration of it as a circumstance against him. Leslie v. State, 49 S. W. 73; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Johnson v. State, 53 Tex. Cr. R. 340, 109 S. W. 936; Veach v. State, 71 Tex. Cr. R. 181, 159 S. W. 1069; Mason v. State, 81 S. W. 718; and other cases listed on the subject in Branch’s Ann. P. O. p. 293. The cases in which reversals have been ordered on this ground have been those in which the discussion or comment upon the prisoner’s failure to testify, and its use as a circumstance against him, has been uncontroverted, as in Tate’s Case, 38 Tex. Cr. R. 265, 42 S. W. 595, and other cases listed in Branch’s Ann. P. C. p. 292, § 569, or in cases where such comment and use have been established by evidence so cogent as to impel this court to annul the finding of the trial' "ourt to the contrary., When the allegations in the motion for a new trial charging that the jury mis- ! used the accused’s failure to testify to his prejudice are controverted, and on investigation and conflicting evidence determined against him, the finding of the court is given the weight attaching to any other question of fact submitted for judicial determination. Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588; Adams v. State, 48 Tex. Cr. R. 452, 93 S. W. 116; Sheffield v. State, 48 Tex. Cr. R. 481, 89 S. W. 274; Douglass v. State, 58 Tex. Cr. R. 122, 124 S. W. 933, 137 Am. St. Rep. 930; Blount v. State, 58 Tex. Cr. R. 509, 126 S. W. 570; and other cases listed in Branch’s Ann. P. C. p. 295, § 574, subd. 3.

In the instant case the inquiry upon • the controverted issue as to the misconduct of the jury was full; and while in some particulars conflict was developed as to whether there was any reference to the failure of the appellants to testify, the finding that there was none is supported, and, further, the conclusion of the court that no inhibited misuse of the defendants’ failure to testify entered into or affected the verdict is established.

On the issue as to whether J. E. Watson wrote the alleged forged note or wrote the purported signature of Stillwell thereto there was a conflict of evidence. This evidence consisted mainly in the testimony of witnesses claiming to know his signature. It was not a case depending upon the comparison of handwriting coming within article 814, O. C. P., prescribing the quantum of proof where the signature was denied under oath, hut upon direct testimony of those claiming to have personal knowledge of the handwriting, such as was used in. Hughes v. State, 59 Tex. Or. R. 294, 129 S. W. 837, and other eases on the subject cited in Jackson v. State, 193 S. W. 302. There was evidence of possession of the instrument by the appellant and his use of same bringing him into close proximity with the alleged forged note. Gaut v. State, 49 Tex. Cr. R. 495, 94 S. W. 1034; Wharton’s Crim. Law, § 931; Fischl v. State, 54 Tex Cr. R. 55, 111 S. W. 410. There was a serial number on the note, No. 3822, and evidence indicating that this number was a part of the system of the bank of which appellants' were officers and managers in dealing with its bills receivable. The only direct evidence as to the execution of the instrument which we find in the record against W. R. Watson is some evidence that this serial number was in his handwriting. It is true that there were some circumstances such as his connection with the bank, his joint possession of this and other notes referred to above, claimed to have been spurious and used to swell the bank’s assets, but we regard the circumstances insufficient to support the conviction of W. R. Watson. On the other hand, we think .that the state’s evidence that appellant J. E. Watson wrote the alleged forged signature, in connection with the other facts testified to on behalf of the state, are sufficient to establish his guilt, and, this being true, the verdict of the jury'against him is conclusive, in the absence of errors in the trial, and, none having been pointed out, the judgment Of the lower court as to J. E. Watson is affirmed, and that as to W. R. Watson is reversed and remanded.

On Motion for Rehearing.

It is claimed that one of the jurors who rendered the verdict against appellant was at the time insane, and therefore an incompetent juror, and that in consequence of such insanity the verdict of the jury is void.

It appears from the motion that the knowledge of this alleged insanity of the juror was not possessed by appellant at the time of the trial and came to him after the term of the court at which he was tried had adjourned. From this it is apparent that the matter was not raised in the court below, and is not raised here by anything upon the record of the trial in the court below. Consideration of it would involve an inquiry by this court into the question of fact and its determination from evidence adduced of the sanity or insanity of the juror. This is not within the province of this court on appeal. It is confined to the record made in the court below in determining whether or not a legal trial was had. The judgment before this, court is one which in the state of the record is presumed on appeal to have been based on the verdict rendered by a lawful jury. Relief against a void judgment upon matters not contained in the record on appeal must be sought in the district court, which is equipped to determine the facts, and from its judgment upon such proceeding appeal will lie to this court.

The other questions raised in the motion for rehearing are fully considered and discussed in the original opinion.

The motion for rehearing is overruled.
      <&=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    WHITE v. STATE.
    (No. 4725.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.
    Rehearing Denied Jan. 16, 1918.)
    1. Intoxicating Liquors <§=3223(5) — Indictment — 1Time Covered.
    An indictment for selling liquors in local option territory embraced the period between the time it was preferred and three years prior thereto.
    2. Intoxicating Liquors <§=3236(8) — Pursuing Business oe Selling — Sufficiency of Evidence.
    Evidence held sufficient to sustain a conviction of pursuing the occupation or business of selling liquors in prohibited territory.
    3. Criminal Law <§=3445 — Internal Revenue License — Admissibility in Evidence.
    An examined verbatim copy of an internal revenue license for selling intoxicants in prohibited territory, having been proven up completely, was properly admitted in evidence in a prosecution for selling in such territory.
    4. Criminal Law <§=3595(10), 596(3) — Dental of Continuance — Reversible Error.
    Where the testimony of two absent witnesses would have been inadmissible and that of another could have been used for impeachment purposes only, overruling motion for continuance was not reversible error, especially where, although defendants’ motion for new trial was not acted upon for nearly two weeks, affidavits of the witnesses were not procured.
    5. Criminal Law <§=>720(1) — Argument of Prosecuting Attorney.
    Where the evidence showed that bootlegging was prevalent in the territory mentioned, the prosecuting attorney’s argument based on such evidence was proper.
    6. Criminal Law <§=>982 — Suspension of Sentence — Evidence of General Reputation of Defendant.
    Testimony that the general reputation of defendant in the community in which he lived was that he deals in and sells intoxicants was admissible on issue of suspended sentence in a prosecution for pursuing the 'business of selling in view of Vernon’s Ann. Code Or. Proc. 1916, art. 865c, providing that the court shall permit testimony as to the general reputation of defendant to enable the jury to determine whether to recommend suspension of sentence.
    7. Witnesses <§=3361(1) — Impeachment—Rebuttal Testimony.
    Where defendant and his witnesses attacked the credibility of the prosecuting witness, the state’s attorney, who employed him as a detective and had made inquiries as to his general reputation in the places where he had lived, was properly permitted to testify that witness’ general reputation in his community was good.
    8. Criminal Law <§=>956(13) — New Trial — Misconduct of Jury — Sufficiency of Evidence.
    Denial of new trial for alleged misconduct of jurors and the deputy sheriff in conversing about the W. boys, of which defendant was one, having been charged with counterfeiting, held, under the evidence, proper.
    9. Criminal Law <§=>1158(1) — Finding Based on Conflicting Evidence — Review.
    The finding of the judge on controverted testimony that there was no misconduct of the jury or the deputy sheriff in his conversation with them warranting a new trial will not be disturbed on appeal; the court being the judge of credibility and the weight to be given testimony.
    Appeal from District Court, Gregg County; Daniel Walker, Judge.
    Jeff White was convicted of pursuing the business or occupation of selling intoxicating liquors in prohibited territory, and appeals.
    Affirmed.
    Young & Stinehcomb and Riley Strickland, all of Longview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of pursuing the business or occupation of selling intoxicating liquors in prohibited territory, and his punishment assessed at the lowest prescribed by law.

The indictment was duly preferred by the grand jury on May 3, 1917, alleging the offense to have been committed on or about December 20, 1916, “and anterior to the presentment of this indictment,” and that in the pursuance of said business appellant did unlawfully sell intoxicating liquors to D. C. Philpot on or about December 20, 1916, and to J. A. D’ Or say on January 14, 1917.

•Of course, tlie indictment embraced tlie period from tlie time it was preferred, May 3, 1917, back within the period of limitation, three years.

The state proved that prohibition was in force in Gregg county ftom February, 1903, ■by the proper orders of the commissioners’ court and the due publication thereof by the ■county judge.

Mr. Stuckler, the agent of the Wells Fargo Express Company at Longview testified that appellant received from that company at Longview intoxicating liquors as follows: 'January 1, 1916, 12 quarts of whisky; March 4th, 4 quarts; March 6th, 6 quarts; March 31st, 6' quarts; July 14th, 12 pints; August 15th, 36 pints of beer; August 29th, 36 pints of beer; September 6th, 4 quarts whisky; October 5th, 4 quarts; October 28th, 6 quarts; November 15th, 6 quarts; January 26, 1917, -8 pints; March 14th, 1 gallon wine; March 21st, 4 quarts whisky. The evidence does not ■disclose how much other intoxicating liquors, if any, appellant received from other sources during said period.

D. C. Philpot swore that he bought a pint of whisky from appellant about December 20, 1916, and paid him $1 therefor.

J. A. D’Orsay swore that on January 13, 1917, he bought one bottle of whisky from appellant; that on January 14th he bought another; that on January 24th he bought another; that on January 25th he bought another; that on January 26th he bought ■another; that he paid for every bottle he bought from him; and that all this was in ■Gregg 'county. This made five separate and distinct sales by appellant to D’Orsay of intoxicating liquor, whisky. D’Orsay further swore that either on the first or second occasion when he bought a bottle of whisky from appellant, appellant said that when he got whisky he got it to sell, and not to drink, and that he had to be careful whom he sold it to.

G. E. Knox swore that in January, 1917, he bought a pint of whisky from appellant and paid him a dollar for it. He further swore:

“I got whisky from Mm more than once, but I do not remember the times. * * * All I ever got from him was for other people. I didn’t have any money to buy for myself. The reason I got it was that I would get a drink out of it. That’s the way I got my drink. I have gotten from Mr. White [appellant] three or four pints, I guess, or five; I don’t know how much. I don’t know how long he has been selling whisky, but some time last fall and winter. * * * I would get whisky from him wherever he might be, if he had any. He would be carrying it in his pocket. * * * I generally went to his room. I don’t know how many times I went to his room, but it was two, three, four, or five times. I got it in pint bottles. I gave Mm a dollar for it. I said I got it from him four or five times altogether.”

On cross-examination he swore:

“The space of time covered by the first time I got whisky fr'om him, and the last was something- like four or five months. I got some of it in 1916 and some of it in 1917.”

Mr. D. F. Meridith, the sheriff of Gregg county, testified that he examined the records of the internal revenue collector at Austin with reference to the licenses for selling intoxicating liquors in said county, and that he took an exact copy of the license to White & Foster, the firm composed of J. D. White, the defendant, and J. M. Foster, the license to extend from September 1, 1916, for a year. This examined verbatim copy of the license was proven up and introduced in evidence. Appellant himself swore on his- direct examination that he took out the said revenue license for himself and Foster in September, 1916. He also swore that he was prosecuted in the county court of Gregg county for making a sale of whisky to said D’Orsay on January 24, 1917; that he pleaded guilty, and was fined $25, and confined in the county jail for 20 days. In addition, the state introduced in evidence the information charging him with the commission of said offense of making said sale to D’Orsay and that he pleaded guilty, his punishment was assessed as stated, and that he paid the fine and costs and served the term of 20 days in jail.

There is more or less testimony by other witnesses tending rather strongly to corroborate the said witnesses as to the respective sales made by appellant to them.

Appellant denied making any of said sales, and swore he did not engage in said business or occupation.

The evidence was unquestionably sufficient to show appellant’s guilt and sustain the verdict of the jury.

He objected to the introduction of said examined copy of the internal revenue license. This examined copy was proven up completely, and was clearly admissible, as has uniformly been held by this court. Lucio v. State, 35 Tex. Cr. R. 320, 33 S. W. 358; Gersteman v. State, 35 Tex. Cr. R. 318, 33 S. W. 357; Gerstenkorn v. State, 44 S. W. 501; Gerstenkorn v. State, 38 Tex. Cr. R. 621, 44 S. W. 503; Thurman v. State, 45 Tex. Cr. R. 569, 78 S. W. 937; Maddox v. State, 55 S. W. 832; Terry v. State, 79 S. W. 319; Biddy v. State, 52 Tex. Cr. R. 412, 107 S. W. 814; Novy v. State, 62 Tex. C. R. 492, 138 S. W. 141; Broadnax v. State, 68 Tex. Cr. R. 177, 150 S. W. 1169; King v. State, 53 Tex. Cr. R. 103, 109 S. W. 182.

Appellant made a motion for a continuance on account of the absence of John O. Douglass, who lived in Henderson, in Rusk county, and Dan Griffin and Irwin Gray, who lived at Longview, in Gregg county, where this case was tried. The application alleged that he expected to prove by Douglass that he knew the witness D’Orsay and his general reputation in Rusk county for truth and veracity, and that it was not good. By Gray he alleged he expected to prove that said D’Or-say and Albert Hamby, another state’s witness, were frequently about bis café at nigbt for something like a month, and that nearly every night they would come in his place with lewd women and drunk; that by Griffin he expected to prove that said D’Orsay had one time sold him (Griffin) a pint of whisky. The alleged testimony by Griffin and Gray would have been inadmissible; that of Douglass could have been used for impeachment purposes alone. Hence the overruling of the application for continuance shows no reversible error. Trinkle v. State, 59 Tex. Cr. R. 259, 127 S. W. 1060; Gee v. State, 57 Tex. Cr. R. 151, 122 S. W. 23; Powell v. State, 49 Tex. Cr. R. 474, 93 S. W. 544; Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184; Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866; Franklin v. State, 34 Tex. Cr. R. 203, 29 S. W. 1088; Bolton v. State, 43 S. W. 1010; 2 Vernon’s Crim. Stat. p. 317, note 25. Moreover, appellant’s motion for new trial was not acted upon by the court for nearly two weeks after the trial, and no affidavit of either of these witnesses was procured, showing they would have testified as alleged. The diligence to procure the attendance of said Griffin and Gray was insufficient.

Appellant has a bill to what he claims was said by the prosecuting attorney in argument, to the effect-

“We find that the defendant was around Long-view Junction, a place where whisky was sold in every nook and corner, and which is the bootlegging territory of Gregg county.”

He objected to this argument, but he did not ask any charge. The court qualified the bill by stating:

“That the evidence in this case showed that bootlegging was prevalent in the Junction territory; and the district attorney’s argument was not m the exact language quoted, but was based on the facts as shown.”

The record unquestionably shows that bootlegging, as the unlawful sale of intoxicating liquors is commonly denominated, was prevalent in the territory mentioned, and the argument complained of, as stated by the court, was clearly based on the facts as shown in the record.

Appellant has bills which show he complained of the admission of the testimony of each of the witnesses Rosson, Bailes, Morgan, Northeut, Cunyus, and Mayfield, wherein the court permitted each one of them to testify, in substance, that they knew the general reputation of appellant in the community in which he lived as that he was a man that deals in and sells intoxicating liquors. Appellant’s objection was that it was an attack on his general reputation, and that he had not put that in issue. The court qualified each of these bills by stating, in substance, that appellant had pleaded for a suspended sentence, and that he admitted that testimony because thereof, and at the time, in each instance, instructed the jury that such testimony could be considered by them only on the issue of a suspended sentence.

This testimony was clearly admissible as expressly enacted by the Legislature (article S65e, 2' Vernon’s Grim. Stats.) and as held by the uniform and many decisions of this court (Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360; Conaster v. State, 75 Tex. Cr. R. 91, 170 S. W. 314; Martoni v. State, 74 Tex. Cr. R. 93, 167 S. W. 349; Backus v. State, 77 Tex. Cr. R. 653, 179 S. W. 1166; Casey v. State, 180 S. W. 673; Medlock v. State, 185 S. W. 567; Holland v. State, 187 S. W. 944; House v. State, 189 S. W. 468). Besides, the testimony of Judge McHaney fully to the same effect was admitted without any objection by appellant. Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169; Tinker v. State, 77 Tex. Cr. R. 509, 179 S. W. 572; and many other eases.

Judge McHaney testified that he was then county attorney of Gregg county, and had been for six years, and that before then' he had been county judge of said county for eight years; that upon consultation with the sheriff they had determined that it was necessary that they had to procure a detective doubtless to ferret out and run down persons who were selling intoxicating liquors illegally; that they thereupon employed said D’Orsay, who did not live in Gregg county; that he first met him on December 8, 1916; that subsequently he made inquiry from the officials of Rusk, Cherokee, Hunt, Smith, and Kaufman counties as to his general reputation ; that these inquiries were made in the places where D’Orsay had lived and among the people with whom he had associated, and from these inquiries made by him and reports received by him he swore:

“I think I can state what his general reputation was in his community as to truth and veracity. It was entirely good as far as I could get any report from the officials” of said counties.

They told him he was all right with the better class of people, but did not stand well with the bootleggers. Appellant objected to this testimony on the ground that the witness had not qualified himself to testify as to the general reputation of said D’Orsay for truth and veracity, and that his general reputation in that respect had not been attacked, and and that the testimony was hearsay. In approving this bill the court stated:

That, “in order for this court to fully understand this testimony, it would be necessary to read the cross-examination of the witness D’Or-say; that the defendant attacked this witness very severely in his cross-examination; that D’Orsay was a stranger in Gregg county, being there only in the capacity of a detective.”

The cross-examination of this witness shows that he was assailed by many questions attacking his credibility and tending to bring him in. disrepute before the- jury; and in addition appellant by several witnesses attacked his credibility and in effect attempted to impeach him by showing he made statements which’ he denied máking, and they swore to such a state of fact, if believed, as to bring him in disrepute before the jury. Under such circumstances this testimony by Judge McHaney was clearly admissible. Phillips v. State, 19 Tex. App. 164; Crook v. State, 27 Tex. App. 241, 11 S. W. 444; Harris v. State, 49 Tex. Cr. R. 339, 94 S. W. 227; Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597; and other cases.

The court gave a complete and apt charge such as has many times been approved by this co.urt. • There was no testimony which made it proper for the judge to tell the jury that a few sporadic sales were not sufficient to constitute pursuing the occupation or business of selling intoxicating liquor.

The record shows appellant requested several special charges, but there is nothing in them or the record that shows they were presented to the judge at the proper time as required by the statute. Neither is there any exception by him to the refusal of the court to give his special charges, or any of them. Apparently he acquiesced in the court’s refusal to give them. But, whether he did or not, none of them are presented in such a way as to call for a review of any of them. Even if there was, none of them should have been given.

The only other question is that the court erred in overruling his motion for new trial on the ground of the claimed misconduct of J. V. Harrison, a deputy sheriff who was in charge of the jury, and in connection therewith the claimed misconduct of the jury about the same matter. The alleged misconduct of the deputy sheriff was, in substance:

That he “talked with the jury about the case, saying, in substance, that the defendant, or defendant and some of the White boys, had been guilty of counterfeiting, or were charged with counterfeiting, and that the White boys, including the defendant, had organized a show to go over the country and give performances and charge admissions therefor for the purpose of dealing out counterfeit money in giving change.”

The misconduct of the jury-alleged was:

That they “talked among themselves about the defendant, or his brothers, or both, having been charged with counterfeiting, and permitted J. V. Harrison, an officer1, to talk with them about the defendant, or his brothers, or both, having been charged- with counterfeiting.”

In acting on the motion for new trial on these grounds the court heard.the testimony of said deputy sheriff and every one of the jurors. Appellant introduced only one of the jurors, Mr. Echols,. The state introduced the other 11 and the deputy sheriff. Erom all this testimony the judge was authorized to find and believe, and doubtless did reach these conclusions:

(1) That said deputy sheriff did not make to the jury any such statement as was alleged he made.

(2) That the jurors did not discuss or talk among themselves that the defendant had been charged with counterfeiting, etc.

(3) That what’ was said by the jurors and deputy sheriff about the “White boys” counterfeiting, or passing counterfeit money, did not include, but excluded, appellant.

(4) That whatever was said by some of the ;urors and deputy sheriff, even if it included appellant, had no influence on the jury, and none of them acted thereon, in finding their verdict.

(5) And that under all the facts the judge correctly overruled appellant’s motion for a new trial.

Mr. Harrison was the deputy sheriff in charge of the jury. The evidence had been concluded the evening before, but no' argument had been heard. The officer and jury were in the courtroom in the morning just before the court convened. No one else was present. All that was said by the officer or jurymen was at this time. The substance of the testimony of each will be given, avoiding unnecessary repetition:

The officer, J. V. Harrison, swore:

“Some one asked me if I knew whether the defendant was the party that was indicted here for counterfeiting money or not, and I told them he was not. He then asked me which one it was, and I said that there was a report of some kind to that effect, but not about him. I don’t know now who it was that asked the question, but it was some one sitting back in the jury box. There was no other reference made to the matter by me. I heard a few more words passed in regard to it, but did not pay any attention to it, not enough to tell it like it was. I recall that P. L. Birdsong was talking about an experience he had long years ago at London, in Rusk county. He said that several years ago, in 1896, I believe it was, there was a man came to his place of business where he was running a picture gallery, and tried to hire to him to work, in order that he could pass out some counterfeit money, and my recollection is that he said his name was White, but that he did not look like the defendant, or that he looked much younger than the defendant. Some one, Mr. Cunningham, perhaps, said that was ten years after the occurrence of the White boys being charged with counterfeiting. I spoke to some one and told him that it was not this defendant. That is all that I recall that happened with reference to this counterfeiting business.”

Cross-examined, he swore:

“I heard P. L. Birdsong say that when he was running a picture gallery a good many years ago a man named White wanted to hire to him to pass off some counterfeit money. He said that the man looked younger than the defendant. He said he did not think it was the defendant; that he looked so much younger than he.”

Juror Pite swore:

“Mr. Birdsong was telling a little joke about a fellow trying to pass some counterfeit money off on him, or something like that when he was running a picture gallery a good many years ago. There was nothing said about this defendant in that conversation. We were all telling jokes, but Mr. Birdsong was the man telling the joke then. I was sitting on the front row of seats of the jury box, and the other jurors were all around in the jury box. I did not hear the matter of counterfeiting money, or counterfeit money, mentioned any more during the entire deliberation.”

Cross-examined, he swore:

“I may have heard the White boys mentioned in that conversation. I don’t remember whether I did or not, because all of the talks was jokes. I did not know anything about the White boys. I don’t know that I thought about the White boys. I don’t think I heard anything said about the White boys.”

Juror Evers swore:

“I do not remember anything about this conversation. I must have been sitting on the second or third row of seats in the jury box. If any conversation occurred with reference to any counterfeiting I did not liear it or did not take any notice of it.”

Cross-examined, he swore:

“Some of the different jurors were talking with other jurors about other things. I did not hear anything said about the White boys that morning. It could have been said and I not hear it.”

Juror Burton swore:

“I heard the conversation about counterfeiting, but I do not remember who it was talking. I heard a conversation going on about some counterfeit money. I did not hear any questions asked with reference to it. I did not see any one manifest any interest in the conversation. Some of the jury were talking and some were reading.”

Cross-examined, he swore:

“I just heard a conversation that they had been counterfeiting money. I didn’t hear anything said with reference to organizing a show. I thought they were talking about the White boys, and I understood in talking about the White boys they were talking about the defendant and his family. The matter was not mentioned any more after that morning.”

Juror Blalock swore:

“I do not remember any conversation having taken place on the morning of the argument about counterfeiting. I think I was in a way of joking, passing off the time, talking to some one, and the conversation could have occurred, and I not hear it.”

Juror Doby swore:

“I do not remember any conversation taking place about counterfeiting. Something like 10 or 15 minutes before the court opened the jury were all up. in the jury box. Some person and I were sitting on the far seats, and we were talking, and if any conversation occurred about counterfeiting I did not hear it. I was possibly talking to some one else about something else, and did not hear it. It could have occurred, and I not hear it.”

Juror Halsey swore:

“I remember some kind of conversation in which the matter of counterfeiting was mentioned. I do not know who was talking. We were all talking about one thing and another, and I remember that some of the folks here in the box were talking about some counterfeiting. I do not know that they ever referred to the defendant at all. That is all I heard of it. I did not hear the matter discussed after that.”

Cross-examined, he swore:

“I don’t remember who they were talking about. I just heard of the conversation while I was either talking or reading. I did not hear the name of the White boys mentioned. I heard something about a show being organized to go over the country to distribute the counterfeit money. I had never heard before that Jeff White or any of his brothers had been charged with passing counterfeit money.”

Juror Moore swore:

*'I never heard this matter of the White boys being charged with counterfeiting mentioned. I was sitting on one of the end seats of the jury box, and presume I was talking to somebody, but I do not remember who; I might have been reading or engaged in conversation with some juror about something else. This mattef could have been mentioned and I not hear it.”

Juror Harris swore:

“I remember about this conversation. I heard that the White boys had some connection with counterfeiting, but did not hear what White boys. Nobody called any names. I do not remember who it. was talking unless Mr. Harrison, I thought, said something about passing counterfeit money off in Harrison county, somebody wanting him to help him pass it off. That is the way I thought it started. Mr. Harrison was talking about somebody passing counterfeit money, and afterwards this matter came up about the White boys. That is my understanding and recollection of it. I was sitting in the jury box upon one of the back seats. I did not hear any further discussion or reference to the matter. I did not recall anything that was said in connection with it.”

Cross-examined, he swore:

“In the reference to the White boys I understood it meant the defendant and his brothers. It was something to- the effect that the White boys had counterfeited money and got up a show to go over the country to dispose of the money in change. I had never heard of it before.”

Juror Bagwell swore:

“I was sitting on the first row of seats in the jury box, and Mr. Harrison, the deputy sheriff, was sitting three or four feet from me, about the witness stand. As well as I remember, Mr. J. L. Birdsong was telling of some little experience he had several years ago when he was running a picture gallery in London, in Bush county. He said that a man came to him and wanted to work for him so that he could pass out counterfeit money in making change. As soon as he told this experience, Mr. Harrison remarked that the White boys had been accused, convicted, or something like that, of passing counterfeit money. There was something said about the show, but I do not recall' what was said. The conversation stopped at about, that point. I do not know that Mr. Harrison called any name, but he just mentioned the White boys. The jury, was scattered .up there in the jury box, talking to one another, and Mr. Cunningham and Mr. Birdsong and I were sitting about the first row of seats of the jury box, with Mr. Harrison, the deputy sheriff, right in front of us. I remember Mr. Cunningham saying something to the effect that he had heard about that.”

Cross-examined, he swore:

“I did not hear any question asked directly about the White boys being charged with either counterfeiting or passing counterfeit money. Mr. Harrison said something about it, but I do not remember exactly what he said. Something was said about a show and that they intended to work this money off in making change. My understanding of what was said was that Mr. Harrison said something about the White boys either having counterfeit money, or having been charged with passing counterfeit money, and that there was a show organized by the White boys for the purpose of going about the country and giving it off in change. I had never heard of that before. In speaking of the White boys I understood that the statement included the defendant, but I did not know how many of the White boys there were. The matter of the White boys being charged with counterfeiting did not come up before Mr. Birdsong told his experience. The telling of his experience started the conversation. After he got through Mr. Harrison made the remark,”

On redirect examination lie swore:

“The jury did not generally manifest an interest in the conversation. I do not know of any question being asked about it. The matter was not referred to any more in our deliberations.”

Juror Birdsong swore:

“I heard some one, I will not be positive who it was, make the remark that the White boys, I didn’t distinguish what White boys, counterfeited some money. I did not charge my mind with it, not anticipating that anything would come of it. I never gave it but very little thought. We were all passing off the time cracking jokes one way or the other, and I did not give it any special attention. If any one asked any question, I do not remember hearing ⅛ I do not know that any member of the jury manifested any interest in the conversation. I will not be positive who it was talking, but Mr. Harrison, the deputy sheriff, and some of the members of the jury, is my recollection, but I will not be positive who they were. I never heard the matter referred to any more during the entire day of our deliberation on the case. That conversation had no weight whatever with the verdict I returned. There was no dissension in the jury room with reference to the guilt or innocence of the defendant. On the first ballot the entire jury voted that he was guilty.”

On cross-examination he swore:

“The matter of the White boys counterfeiting money was mentioned by some one, and in a voice that I heard. There could have been some of the jurors that did not hear it. I would suppose that they could all hear it if they had been listening. It was either Mr. Harrison or the jury talking about it. * * * I had never heard of Jeff White being accused of counterfeiting before. I suppose that in discussing about the White boys I understood it to mean tbe defendant and bis brothers.”

Juror Cunningham swore:

“Some one said something about the counterfeiting, and I believe I said something, and some one else spoke something about it. A few words were spoken, and I don’t remember who it was that started the conversation. I believe one juror, I don’t know who it was, asked something about further information, but I was not clear on that. I don’t know who he asked. They were talking about the White boys in the conversation, but did not say what White boys. All I remember saying is that I had heard of it, but that I didn’t know anything about it. I had heard of the incident. It is a matter that occurred a long time ago. I did not hear the matter mentioned in the jury room, nor in any of our deliberations.”

Cross-examined, lie swore:

“The matter of counterfeiting and the White hoys was referred to by somebody. My memory is that after the conversation started some one of the jury, whom I do not now recall, asked about what it was, and made some question about it, but I don’t remember who that was. I think perhaps all of them heard what was said. * * * In speaking of the White boys I understood that the defendant was in it, that he was one of the White boys, but I did not know anything about the trial of the case. In talking about the matter I knew that the term ‘White boys’ included the defendant and his brothers.”

Juror Echols swore:

“I have heard the grounds of the motion with reference to statements being made about the White boys being charged with 'counterfeiting. There was something said about them in the presence of tbe jury. * * * All of tbe jurors were present and in or about the jury box.
” * * I was sitting where the stenographer sits, about three or four feet from the jury box, and I heard ¡some 'one, whom I think was Mr. J. V. Harrison, and Mr. Cunningham, one of the jurors, talking. My understanding is that Mr. Cunningham or Mr. Harrison, or both of them, had said that the White boys had a show, and that they had counterfeit money, and that they got rid of the money in that way, by giving it out as change. I could not give verbatim exactly what they said, but this was the effect of it. I was astonished at it myself, and did not think it was a proper thing to talk about it, especially for an officer to be concerned in talking about it, and I remarked that we bad better ask the judge whether that was proper testimony before the jury or not, and about the time I made that statement the judge of the court walked in at the door. When 1 made the statement somebody asked how he would know it, and I answered that I supposed he ought to know, or words to that effect. I know that Mr. Cunningham and Mr. Harrison were in the conversation about it, and that was the general trend of the conversation, but I could not say what all they said. I was reading the morning Shreveport Times when I was attracted to this conversation. I thought it was very improper.”

Cross-examined, he swore:

“I think they, desisted when I called their attention to it. 1 did not hear any more said about it. The matter was not further discussed in my presence. It was not mentioned when we were out in the jury room deliberating. I could not say what White boys I beard Cunningham and Harrison talking about. I do not know that they particularized what White boys. Their conversation did not affect me in arriving at my verdict. I had heard of the charge of counterfeiting against the White boys before. If I beard Mr. Birdsong, a juror, say anything with reference to the charge of counterfeiting in that conversation, I do not remember it. I only charged my memory with the fact that the thing had been talked about. I do not remember any juror except Mr. Cunningham talking about it. I thought it was an improper thing, and said so. * * * When the jury retired to consider of their verdict, there was but one ballot given on the question of guilty or not guilty, and all voted guilty. The only argument the jury had was on the question of whether or not they would suspend the sentence. I do not remember that I made a statement in the jury room to the effect that the defendant would get a new trial, but I think I made the statement here in the jury box, before the jury went out, that the conversation referred to would likely affect the case, and that we had better ask the judge about it. The defendant was not especially referred to in the conversation, except as being one of the White hoys. The statement was that the White boys had that manner of getting rid of the counterfeit money, by going around with a show and giving it out in change. All of the jurors were sitting near by, and I supposed that they heard it.”

On redirect examination he swore:

“I understood that the conversation was about the White boys having been charged with counterfeiting money, and that they were using a show as a means of disposing of it. I understood that the defendant was included in the mention of the White boys. I understood that they had reference to Jeff White, the defendant, and his brothers. I knew when I was taken on the jury that the White boys had been charged with counterfeiting, but never knew anything about whether they were tried or convicted or what the outcome of it was. I knew of the incident. I have had the general understanding that the defendant was acquitted of the charge.”

Mr. Echols was the juror who made the affidavit attached to appellant’s motion. The affidavit is:

“That he heard J. V.' Harrison saying something to one of the jurors about the White boys, and he understood that_he was talking about the White boys at one time being charged with counterfeiting money, or handling counterfeit money, and that said J. V. Harrison, or the juror, or both, stated that the White boys got up a show to go over the country so they could distribute the money. Affiant says he then asked if that was proper evidence to come before the jury, and suggested that they ask the court whether or not it was proper evidence, and some one said that the court would not know anything about it.”

The judge heard all these witnesses testify and saw them when they testified, and on a question of fact of this kind he was the judge of the credibility and the weight to be given to the testimony. He could tell what was the true state of facts in the matter from all this testimony better than this court or the judges thereof can tell. It has all the time been held in such questions that his finding on such dispute or controverted testimony will not be disturbed on appeal. Lamb v. State, .75 Tex. Cr. R. 80, 169 S. W. 1158; Watson v. State, 199 S. W. 1113; Blount v. State, 58 Tex. Cr. R. 511, 126 S. W. 570; Williams v. State, 58 Tex. Cr. R. 284, 124 S. W. 916; Douglas v. State, 58 Tex. Cr. R. 127, 124 S. W. 933, 137 Am. St. Rep. 930; Benevidas v. State, 57 Tex. Cr. R. 170, 121 S. W. 1107; Fox v. State, 53 Tex. Cr. R. 155, 109 S. W. 370; Veas v. State, 55 Tex. Cr. R. 126, 114 S. W. 830; and a great many other cases.

The judgment is affirmed.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J. MORROW, J. PRENDERGAST, J.

text:
    MERKA v. STATE.
    (No. 4415.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.
    On Motion for Rehearing, Jan. 16, 1918.)
    1. Criminal Law <§=>829(3) — Request Covered by Instruction.
    Requested instruction that to convict of murder defendant must be proved to have had the specific intent to kill was fully covered by general instruction that the jury must be satisfied beyond a reasonable doubt that defendant was actuated by malice aforethought, and with specific intent to kill, and the requested instruction need not be given.
    2. Homicide <§=>309(6) — Instructions—Manslaughter.
    In prosecution for murder, evidence held insufficient to raise issue of manslaughter.
    3. Criminal Law <§=>810 — Contradictory Instructions — Manslaughter.!
    In prosecution for murder, where accused requested instruction to acquit if he did not have specific intent to kill, it was proper to refuse instruction submitting manslaughter; the two instructions being contradictory.
    4. Homicide <§=>43 — Manslaughter — Passion-Cause.
    To reduce homicide to manslaughter, it is essential that there be sudden pássion arising from adequate cause.
    5. Homicide <§=>230 — Intent—Evidence.
    Evidence held to show that when accused struck deceased on the head with an ax handle it was his intent to kill him.
    6. Homicide <§=>304 — Instruction — Negligent Homicide.
    Evidence held insufficient to require submission of issue of negligent homicide.
    7. Criminal Law <§=>826 — Trial — Instructions — Time eor Request.
    Where accused in prosecution for murder made no objection to the charge for failure to charge on aggravated assault, and requested no special charge, but after the charge had been read and the argument of all attorneys concluded, except the final argument for the state, accused then asked a charge on aggravated assault, it was properly refused in view of Code Cr. Proc. 1911, art. 737a, added by Acts 33d Leg. c. 138 (Yernon’s Ann. Code Cr. Proc. 1916, art. 737a), prohibiting giving instructions after the' argument begins.
    On Motion for Rehearing.
    8. Homicide <§=>231 — Murder—Malice—Evidence.
    Evidence held insufficient to show express malice on the part of accused in killing deceased.
    9. Homicide .<§=>310(2) — Instructions — Included Offenses — Aggravated Assault.
    In view of Pen. Code 1911, art. 1147, requiring means of causing homicide to be considered on intent, article 1148, providing that if injury be inflicted in cruel manner with instrument not likely to produce death the killing will be manslaughter -or murder according to the facts, article 1149, providing that where a homicide occurs under the influence of sudden passion, but by means not calculated to produce death, the party may be prosecuted for any grade of assault and battery, and ■ an ax handle not being per se a deadly weapon, it was for the jury whether the manner of its use clearly showed intention to kill, and the jury should have been instructed on aggravated assault.
    10. Criminal Law <§=>1056(1) — Appeal.
    An omission to charge is not subject to review in the absence of exception or proffered special charge at the time of trial.
    11. Homicide <§=309 (3) — Questions eor Jury —Manslaughter.
    Where instrument in homicide is not per se deadly weapon, manslaughter need not be submitted on proof of sudden passion without proof of adequate cause arousing such passion.
    Appeal from Criminal District Court, Williamson County; George Calhoun, Judge.
    John Merka was convicted of murder, and he appeals. Affirmed. On motion for rehearing.
    Motion overruled.
    J. F. Taulbee and A. S. Fisher, both of Georgetown, H. C. Mantor and H. Z. Daril, both of Taylor, and A.- S. Fisher, Jr., of Georgetown, for appellant. E. B. Hendricks, Asst. At'ty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of the murder of W. G. Jones, and his punishment assessed at 20 years in .the penitentiary. The facts of the case were established by clear, undisputed, and unim-peached testimony.

Deceased was a man of small stature, 54 years old, and weighed about 125 pounds. He lived with his family at Waterloo, about 5½ miles north of Taylor. Appellant, as most of the witnesses designated him, was a young man. He was a little larger than Jones, and lived at or near Taylor. One witness said be was about 19 years old at tbe time of tbe trial, in January, 1917. Tbe day before appellant billed deceased, be went to deceased’s place. Mrs. Jones, deceased’s widow, swore be was there and sbe saw him talking to her husband, but did not bear what be was talking about. Tbe next morning about 9 o’clock appellant called up Mrs. Jones over the phone at her borne and asked her if deceased was there. Sbe told him be was not, but was in the field pulling corn. He asked, “Is be coming to town?” Sbe replied, “He is coming this afternoon.” Appellant said, “1 will see him when be comes.” Deceased did go to Taylor that evening with a load of cotton seed, reaching there about 3 o’clock in tbe afternoon of October 2Sth. About that time he went to see the assistant county attorney in bis office. About an hour and a half thereafter be returned,-to this attorney’s office and remained there with tbe attorney and another witness, Mr. Kettler, about 10 or 15 minutes, and had a conversation with the attorney. He and the attorney with Mr. Kettler then left tbe attorney’s office, which was upstairs over the First National Bank, to go to the office of the justice of the peace, diagonally across two streets in another block, perhaps a little more than a half block distant from the ¡attorney’s office. While Mr. Kettler came downstairs with them he stopped on tbe sidewalk near the corner at said bank.

Just before deceased and Mr. Kettler went up to the attorney’s office the second time, deceased and Mr. Kettler were talking on the sidewalk at said hank corner. Appellant came up and spoke to them, saying, “Howdy do.” He then said, “I want to see you, Mr. Jones.” Jones replied, “I will see you a little bit later.” Appellant said, “No, damn it; I want to see you right now.” Jones said, “You go on now; I don’t want to fool with you.” Appellant then walked away from them, and Jones and Kettler at once went up in tbe attorney’s office. Appellant walked down the street about a half block to a store, went in and borrowed an ax handle, which weighed just one pound and a half. He then returned to the bank corner with the ax handle, and waited around there, without doubt, waiting for Mr. Jones to return to the street from the attorney’s office. Just after what was said between appellant and Jones just above related and before appellant got the ax handle Mr. John Fojtik, an acquaintance of appellant, approached him, spoke to him, and asked him what was the matter. He cried and said, “He got trouble with Mr. Jones; he got trouble; Mr. Jones is to see me next time.” A short time before this Mr. Fojtik saw him across the street from the bank and had some conversation then with him about getting him to take him, the witness, out to Waterloo. At that time appellant said nothing about Mr. Jones. When appellant returned to said bank corner with the ax handle, Mr. Fojtik went 'to him and spoke to him again, and said to him, “You had better let that trouble alone and get on.” But appellant commenced crying, and just said, “John, you go away and let me alone.” And the witness vyalked off from him, and had no more talk with him.

When deceased and the attorney left the office of the latter together going to that of the justice of tbe peace, they stepped off of the sidewalk at the bank corner and walked side by side until they got about half way across one street. Appellant with his ax handle then stepped off of the sidewalk at the bank corner following Mr. Jones. After getting a few steps he called to Mr. Jones. Mr. Jones partially turned without stopping and said something. No witness could tell what he said. He and the attorney continued going. Appellant continued after Mr. Jones rapidly. Mr. Jones and the attorney proceeded some steps further, without either of them looking back or knowing that appellant was approaching. When he got close enough to Mr. Jones, he raised the ax handle with both hands, and overhanded struck Mr. Jones on the right side of his head, to the rear of about the center of his head, an awful blow, which felled Mr. Jones on the street. The attorney said that the crash of the blow attracted his attention, and he turned and saw Jones as he fell upon the ground, though he did not see the blow struck. After striking Jones this blow and felling him to the ground, one witness said that appellant still held tbe ax handle in both hands, and gazed at Jones on tbe ground for a short time. Doubtless seeing he had accomplished his intention of killing him, he struck no more, but walked away. Eyewitnesses, who saw and testified to all this, at once went to and picked Mr. Jones’ body up and carried it into one of the stores. Mr. Jones never spoke after appellant struck him. A doctor was immediately summoned and at once had the body removed to bis office, where a hurried examination was made, and ascertaining that the wound was a very serious one, had him taken to tbe sanitarium, where a thorough examination was made of deceased’s skull. The doctors testified that they found bis skull crushed in by the blow an area about the size of a large egg. Tbe bones were driven into the brain tissue; that the skull was broken in as if you would take an egg and knock it. The doctors dressed the wound, removing therefrom two or three pieces of the broken skull about the size of a half dollar. When they first made this thorough examination, and before these bones were removed, a considerable portion of deceased’s brains poured out of the wound. Tbe doctor further testified that while there might be stronger places of the skull than where this blow was struck, it was about the average of the skull; that the skull bones at this point were in two layers — the brain was beneath the second; that this blow crushed both layers. Appellant did not testify at all. When the doctor was testifying that the blow with an ax handle would cause the crushing of deceased’s skull and his death, appellant admitted that that was the eause of his death. Mr. Jones died a few hours after appellant struck him and crushed his skull.

The court gave a full and apt charge submitting murder alone. He correctly stated the case and told the jury what the offense of murder was in accordance with the statute. He correctly and fully defined malice aforethought.

The appellant complained of the court’s refusal to give his special charge as follows:

“That before you 'can convict the defendant in this case you must find from the evidence and beyond a reasonable doubt that at the time the defendant struck the deceased, if he did strike him, with an ax handle, that the defendant had the specific intent to kill deceased, and if you have a reasonable doubt about the intention of the defendant, you must acquit him.”

The judge at the time refused this charge, stating that it was covered by the general charge of the court.

The court in his main charge in one paragraph instructed the jury:

“To warrant a conviction for murder, the jury must be satisfied from the evidence, beyond a reasonable doubt, that the defendant, in the commission of the homicide, was actuated by malice aforethought, and with specific intent to kill.”

In two other paragraphs he instructed them:

“What is meant by deadly weapon, whenever used in this charge, is meant a weapon which from the manner used is calculated or likely to produce death or serious bodily injury.
“The instrument or means by which a homicide is committed are to be taken into consideration in judging the intent of the party offending. If the instrument be oiie not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used, such intention evidently appears.”

Then,, in the next paragraph, submitting the case to the jury for a finding, he instructed:

“Bearing in mind all the instructions given you, if you believe from the evidence in this case beyond a reasonable doubt that the defendant John Merka, in the county of Williamson, state of Texas, on or about the 28th day of October, A. I>. 1915, did then and there, unlawfully and with malice aforethought and with intent to kill, and with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, strike one W. G. Jones on the head with an ax handle, and thereby killed the said W. G. Jones, as charged in the indictment, you will find the defendant guilty of murder as charged, and assess his punishment at death, or by confinement in the penitentiary for life or for any term of years not less than five, as the jury may determine and state in their verdict. And unless the jury so find from the evidence the facts to be beyond a reasonable doubt, then they will acquit the defendant and say by their verdict, ‘Not guilty.’ ”

In addition, in a separate paragraph, the court told the jury:

“In all criminal cases the burden of proof is on the state. The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and in case you have a reasonable doubt as to the defendant’s guilt you will acquit him, and say by your verdict, ‘Not guilty.’ ”

Undoubtedly the court’s charge fully covered appellant’s special charge, and the judge correctly refused to give it.

Appellant objected to the court’s charge because he did not submit the question of manslaughter, claiming that the evidence raised that issue, and asked a charge on that subject. The court refused to charge on that subject on the ground, expressly stated by him, that the evidence did not raise the issue. The judge’s action was correct. The evidence did not raise manslaughter.

Even if manslaughter could have been raised by the mere fact that the ax handle might not have been a deadly weapon per se, and that appellant might not have intended to kill the deceased when he struck the fatal blow, yet he cut himself off from a submission of that issue by specially requesting his special charge above copied. Doubtless the court, because of that special charge and appellant’s contention therefor, instructed the jury as he did as copied above, “To warrant a conviction for murder, the jury must be satisfied from the evidence beyond a reasonable doubt that the defendant * * * was actuated by malice aforethought, and with specific intent to kill,” and required the jury to believe beyond a reasonable doubt that at the time he struck him he did so with intent to kill, before they could convict him of murder; “and unless the jury so find from the evidence the facts to be beyond a reasonable doubt, then they will acquit the defendant and say by their verdict, ‘Not guilty.’ ” To have then told the jury that if he did not intend to kill to find him guilty' of manslaughter would have been in direct conflict with his charge telling them if he did not intend to kill “you must acquit him.”

Our statute (article 1128 et seq.) on manslaughter is clearly and fully to the effect, as has many, many times been held by this court, that to constitute manslaughter two things are absolutely necessary: First, sudden passion; and, second, that that passion must arise from an adequate cause. If either of these requisites are wanting, an unlawful homicide cannot be manslaughter.

In Davis v. State, 70 Tex. Cr. R. 37,155 S. W. 546, this court, through Judge Davidson, said:

“It may be laid down as an uncontrovorted proposition that two things are requisite to constitute manslaughter: First, adequate cause; second, existing passion. If these coexist, the homicide is manslaughter. If they do not combine or coexist, it may be murder in one of the degrees.”

In Redman v. State, 67 Tex. Cr. R. 374, 149 S. W. 670, this court said:

“The statute itself defining manslaughter requires two requisites to reduce voluntary homicide to, manslaughter, to wit: ‘Sudden passion,’ and that that passion ‘must arise from an adequate cause.’' If either of these requisites are lacking, the offense cannot be manslaughter, but must be murder in one or the other degrees.”

In McKinney v. State, 8 Tex. App. 626, this court, through Presiding Judge White, said:

“A killing upon such sudden passion as is mentioned may be murder in the second degree, even though the passion was anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection. To make such killing manslaughter, there must actually have existed not only such state or emotion of the mind, but the adequate cause which produced them must also exist. Penal Code, art. 602 [1137]. Insulting words or gestures, or an assault a_n.d battery so slight as to show no intention to inflict pain or injury, may be sufficient to cause the emotions of the mind known as anger, rage, sudden resentment, or terror, to the extent even of rendering it incapable of cool reflection, and yet a killing under such circumstances would not be manslaughter. Why? Because such insulting words or gestures, or such assault and battery, are not adequate causes (P. C. art. 596 [1131]), and manslaughter cannot be predicated upon any voluntary homicide upon sudden passion not arising from an adequate cause (P. C. art. 593 [1128]).”

To precisely the same effect as these cases quoted from is the very recent case of Marshbanks v. State, 192 S. W. 247. And also Wilson v. State, 71 Tex. Cr. R. 403, 160 S. W. 83, Kelly v. State, 68 Tex. Cr. R. 317, 151 S. W. 304, Clore v. State, 26 Tex. App. 624, 10 S. W. 242, Hill v. State, 11 Tex. App. 456, Neyland v. State, 13 Tex. App. 536, Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597, Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836, Ex parte Jones, 31 Tex. Cr. R. 422, 20 S. W. 983, and a great many other cases. The testimony herein not only shows no adequate cause, but it excludes any such idea. It also not only fails to show any sudden passion of appellant aroused by any adequate cause, but it affirmatively shows, and authorized the jury to find and believe, that appellant bore maliqe against deceased, and for that reason slew him, and the jury so believed and found. The evidence would not have authorized the jury to.believe that any passion of appellant against deceased, even if it was sufficient to show any at all other than malice, was caused by what occurred at the time he- killed deceased or that day prior thereto. It shows that appellant went to deceased’s place the day before and sought, and had an interview with, deceased at the time. What then occurred and was said the state could not prove. Appellant had the rignt to refuse to testify and tell anything about it. He had killed the deceased, so that deceased could not tell it. No one was present at the time. Deceased’s widow did not hear what was said and could testify only, as she did, that appellant talked to the deceased at the time. It further shows that he again sought, the deceased the next morning, calling for him at his residence over the phone, and when Mrs. Jones told' him that he was In the field pulling corn, he asked if- he was coming to town. She told him he was that evening, and then he said that he would see him at that time, and he did. He told Mr. Eojtik just a few minutes before he killed the deceased that he had trouble with Mr. Jones, and that Mr. Jones would see -him the next time. He thereupon armed himself with an ax handle. This handle was produced, identified, and introduced in evidence. The jury saw and must have handled it. They, therefore, from it and the other testimony, could tell with certainty, as used and the effect it had, that it was a deadly weapon. Crutchfield v. State, 68 Tex. Cr. R. 476, 152 S. W. 1053; Luttrell v. State, 70 Tex. Cr. R. 193, 157 S. W. 157. From all the facts and circumstances the jury were clearly justified in believing it was a most deadly weapon. As used it killed deceased. As soon as he procured it he .returned to where he knew Mr. Jones would necessarily return shortly. 1-Ie laid in wait there for him. When Mr. Jones did return where he must have seen him he did not then approach him to his face and say or do anything to him, but he waited till Mr. Jones got some distance from him with his back to him. Then he stealthily slipped up behind him, and without any notice to him, and without Mr. Jones knowing his danger, assassinated him by striking him a most powerful blow on the back of his head, crushing his skull, and felling him like a beast to the ground, from which, in a few hours, he died. These facts all show, and authorized the jury to believe, as they did, that appellant bore malice against Mr. Jones, and caused by this malice aforethought he stealthily slipped upon him from behind and struck him such a blow on the skull with such an instrument as to crush his skull and thereby unquestionably show that his intention was to kill him as he did.

Appellant relies upon Johnson v. State, 42 Tex. Cr. R. 377, 60 S. W. 48, as in point on the question of manslaughter. Some expressions of Judge Henderson in the opinion in that case if taken alone might be construed as tending to show that from the mere fact that the instrument used might not be a deadly weapon per se, that that would raise the issue of manslaughter, but when rightly considered in connection with the whole opinion and all the facts of that case, that fact alone was not held to raise manslaughter, but that it should be considered by the jury in determining whether or not appellant intended to kill the deceased. Judge Henderson in that case says that the stick used in that instance was not a weapon ordinarily calculated to produce death. “At least this fact should have been presented to the jury, so that they might pass upon it.” That was done in this case fully and completely by the charge of the court. He expressly told them what was meant by a deadly weapon in clear language, and just such language as has all the time been approved as correct by this court. 2 Branch’s Ann. P. O. p. 935.

From the decisions of this court Mr. Branch correctly says:

“A charge is correct which informs the jury that a deadly weapon is one which, from the manner used, is calculated or likely to produce death or serious bodily injury. Kouns v. State, 8 Tex. App. 13: McReynolds v. State, 4 Tex. App. 328; Hardy v. State, 36 Tex. Cr. R. 400, 87 S. W. 434Wilson v. State, 37 Tex. Cr. R. 159, 38 S. W. 1013; Henry v. .State, 54 S. W. 592; Tollett v. State, 55 S. W. 335; Leal v. State, 46 Tex. Cr. R. 336, 81 S. W. 961; Prescott v. State, 54 Tex. Cr. R. 485, 113 S. W. 530: Harris v. State, 72 Tex. Or. R. 491, 162 S. W. 1150.”

Judge Henderson further said in said Johnson Case that the issue therein for the jury was whether the circumstances showed appellant evidently intended to take the life of the deceased by the blow given; and if he did so, then he might be guilty of murder or manslaughter “according to the other facts of the case.” In that case it does not appear that the court told the jury what would be a deadly weapon as the court did in this case. Doubtless “the other facts” in that case might have raised manslaughter, but in this case they did not.

Now further as to the question of whether or not the evidence in this ease was sufficient to show and authorize the jury to find as they did that appellant intended to kill the deceased. The question of intent, as held by Judge Hurt in Fitch v. State, 37 Tex. Cr. R. 500, 36 S. W. 584, and other cases where the instrument used in the killing might not be a deadly weapon per se, is a fact to be found by the jury from all the evidence, and is .not a matter of law alone. In this case, as shown, this question of fact was expressly left to the jury for its finding from all of the testimony. The court did not charge as a matter of law that appellant’s intent was to kill, but left that question to the jury for it to find and determine as a fact. Now, how is this intent to be shown? As stated, appellant did not testify himself that he had no such intent. He had the right to testify, and he had the right to decline. He declined. Therefore the question of intent must be ascertained from all the facts and circumstances.

Judge White in his Annotated Penal Code, 1901, § 74, says:

“A man is always presumed to intend that which is the necessary, or even probable consequence of his acts, unless the contrary appears. McCoy v. State, 25 Tex. 42, 78 Am. Dec. 520; Aiken v. State, 10 Tex. App. 610; Lane v. State, 16 Tex. App. 172; High v. State, 26 Tex. App. 546, 10 S. W. 238, 8 Am. St. Rep. 488; Wood v. State, 27 Tex. App. 393, 11 S. W. 449; Hatton v. .State, 31 Tex. Cr. R. 586, 21 S. W. 679; Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361.”

Our statute (article 1149, P. C.) in homicide cases expressly states in effect when and how the intent of an accused when he has killed another may be found, stating that where a homicide occurs even under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill. This statute was expressly given to the jury by the judge in his charge, and, as stated, the question of what appellant’s intent was at the time when he struck the fatal blow was to be found as a matter of fact by the jury, and they were told that they must believe beyond a reasonable doubt that at the time he struck the blow he did so with the specific intent to kill, and unless the jury found beyond a reasonable doubt from the evidence that that was his specific intent at the time, that they not only could not convict him of murder, but they must find him not guilty. There can be no question but from the charge in this case the jury had to find and- believe beyond a reasonable doubt that it was appellant’s intention to kill the deceased at the time he struck the blow, and unless they did they had to acquit him. The evidence was amply sufficient for the jury to believe that that was his intent, and they so found.

Another contention by appellant is that the court refused to submit the issue of negligent homicide in the second degree. And he asked a charge on that subject which the court refused to give, stating thereon at the time that the evidence did not raise the issue of negligent homicide. The court’s action was right. The evidence did not raise the issue of negligent homicide. A case might well be supposed where negligent homicide would arise. Thus in this case if there had been any testimony, for instance, that appellant merely intended to give the deceased a beating with the ax handle, and that as he attempted to strike him therewith on some other portion of his body other than his skull the deceased dodged or stumbled, or he himself stumbled, and he accidentally struck him on the head when he intended to strike him elsewhere on the body which would not have proved fatal, then negligent homicide might have been in the case; but there is no such state of fact, and none such could be inferred from the evidence. The evidence from no viewpoint would have authorized or justified the court to have submitted a charge on negligent homicide either from the statutes on the subject or any decision thereunder. Mr. Branch in 2 Branch’s Ann. P. C. § 1990, truly states the law thus:

“The facts showing an intentional blow without negligence, the issue of negligent homicide is not raised; on the contrary, if the defendant did not intend to kill but intended to beat the deceased with a stick, a weapon not necessarily deadly but calculated to inflict and which did inflict serious bodily injury, the issue of aggravated assault, but not of negligent homicide, is raised.”

He further says:

“An intentional killing is not negligent homicide. Thompson v. State, 2 Tex. App. 558; Dwyer v. State, 12 Tex. App. 540; Tomerlin v. .State, 26 S. W. 66; Flynn v. State, 43 Tex. Cr. R. 407, 66 S. W. 551.” .

Again, lie says:

“The court need not charge on negligent homicide in the absence of facts showing no apparent intention to kill. Aiken v. State, 10 Tex. Cr. App. 617; Houston v. State, 34 Tex. Cr. R. 587 [31 S. W. 403]; Clifton v. State, 47 Tex. Cr. R. 478 [84 S. W. 237, 111 S. W. 740, 122 Am. St. Rep. 715].'’

The evidence may have raised, and it may have been proper for the court to have charged on, aggravated assault, but the record conclusively shows that the court under the statute, after the evidence was closed and before the argument was begun, submitted his charge to the appellant and his attorneys for their action thereon. They did not then make any objection whatever to the court’s charge because he had failed or omitted to charge on aggravated assault. Neither did they at the time request any special charge .on that subject. However, after the charge of the court had been read to the jury and the argument of all the attorneys concluded, except when the district attorney, who made the final argument for the state, was about concluding his argument, the appellant’s attorneys for the first time then asked a special charge on aggravated assault. The court refused to give it at that time, stating the facts above as the reason therefor. His action was strictly in compliance with the statute which forbade him to give a charge at that stage of the case. Article 737a, O. O. P., as added by Act April 5, 1913, p. 278 (Vernon’s Ann. Code Cr. Proc. 1916, art. 737a).

The judgment is affirmed.

On Motion for Rehearing.

MORROW, J.

The appellant was a youth about 19 years of age, not fully grown. Deceased was a man about 54 years of age, weighing about 125 pounds. On the morning ol' the day of the homicide appellant talked over the telephone to the wife of deceased. Inquiring if deceased was at home, and learning that he asked whether he was coming to town, and on being informed that he would that afternoon, said, “I will see him when he comes.” This occurred about 9 o’clock in the morning. On the day prior to this conversation, the father of appellant had been to the deceased’s home and had a conversation with him. During the afternoon, while the deceased and a witness were in conversation on the street, appellant approached, and after saying “Howdy do” to the deceased, said, “I want to see you, Mr. Jones,” to .which deceased replied, “I will see you a little bit later.” Appellant said, “I want to see you right now.” Deceased replied, “You go on now; I don’t want to fool with you.” Appellant walked away, and the witness and the deceased walked upstairs to the office of Mr. Peters, assistant county attorney. The three, the witness, Jones,’ the deceased, and Peters shortly afterward walked down the stairway together, Peters and deceased starting to walk across the street. The appellant, who in the meantime had borrowed an ax handle, approached them and called to the deceased, and when called, the deceased, who had his back to appellant, turned around and spoke to appellant, and after doing so walked on, appellant following him, striking him one blow .with the ax handle, holding it in both hands when he struck. The deceased fell, was taken to a sanitarium, and shortly thereafter died.

A witness testified that shortly before the homicide, during the afternoon he had met the appellant and had a conversation with him, in which nothing was said about the deceased; that afterward the witness saw him talking with deceased, and thereafter he met appellant again, and he cried and said he had trouble with Mr. Jones, the deceased. At that time he did not have an ax handle, but the witness later saw him with an ax handle crying, and said to him, “John, you had better let that trouble alone and go on.” Appellant would not talk, pushed him away, and said, “Let me alone.”

There was evidence by the attending physician that the blow crushed the skull of deceased; that the bones were driven into the brain tissues on an area about as large as an egg; that two pieces of bone about the size of a half dollar which were broken into' fragments were removed from the head, and as a result of the blow a part of the brain exuded or poured out of the wound.

This is a substantial statement of the facts. I do not find in it any evidence of express malice. The cause of the difficulty or trouble between the appellant and Jones is not disclosed. The facts, I think, are sufficient on the question of manslaughter to raise an issue as to whether his mind was in a.condition for cool reflection, but there is an absence of testimony of the other essential element to reduce the homicide to manslaughter, namely, evidence of adequate cause. The appellant’s theory in the trial of the case was to the effect that the issue of manslaughter would exist without proof of adequate cause. This idea was founded upon decisions of this court in the Johnson Case, 42 Tex. Cr. R. 377, 60 S. W. 48; Betts v. State, 60 Tex. Cr. R. 635,133 S. W. 251; Lee v. State, 44 Tex. Cr. R. 460, 72 S. W. 195; Taylor v. State, 41 Tex. Cr. R. 151, 151 S. W. 1106. These cases construe articles of the Code relating to a homicide taking place by the use of a weapon other than a deadly weapon.

Article 1147 is as follows:

“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 presumed that death was designed, unless, from the manner in which it was used, such intention evidently appeared.”

Article 1148 is as follows:

“If any injury be inflicted in a cruel manner, though with an instrument not likely under ordinary circumstances to produce death, the killing -will be manslaughter or murder, according to the facts of the case.”

Article 1149 is as follows:

“Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill, but the party from whose act the death resulted mag be prosecuted for and convicted of any grade of assault and battery.”

The ax handle was not per se a deadly weapon. Branch’s Ann. P. C. § 2102, and cases cited. It therefore became a question of fact for the jury as to whether from the manner in which the ax handle was used, the intention to Mil evidently appeared. Branch’s Ann. P. 0. p. 1180. The court gave the sub- ' stance of this statute (article 1147) in charge to the jury. He submitted no issue except that of murder. Under the facts of the case the instrument not being per se a deadly weapon, and the question of the evident intent to kill, in the manner of its use, being one of fact, the charge to have been complete in submitting the law should have charged on aggravated assault. See Hill v. State, 11 Tex. App. 470, and numerous cases following it listed in Branch’s Ann. P. C. p. 1182. In other words, the jury should have been informed of what offense appellant would have been guilty in the absence of an intent to kill. Beaupre v. State, 70 Tex. Cr. R. 19, 156 S. W. 626.

This being an omission in the charge, however, is not subject to review in the absence of an exception, or proffered special charge at the time of the trial, and the special charge on aggravated assault which was requested by appellant not having been requested until argument was practically completed, its refusal is not available for review.

In Johnson’s Case, 42 Tex. Cr. R. 377, 60 S. W. 48, Judge Henderson, delivering the opinion of this court, used the following language:

“We believe, under our statutes, in every case where it becomes a question whether or not there was an intention to kill on the part of the slayer suggested by the character of weapon used not being deadly, that it is the duty of the court to submit the issue of manslaughter; and, furthermore, if there was no intention to kill, he should submit the issue of aggravated assault. See Fitch v. State, 37 Tex. Cr. R. 500 [36 S. W. 584]; Taylor v. State [51] Tex. Cr. App. [148] 51 S. W. 1106; Dones v. .State, 8 Tex. Cr. App. 112; Whitaker v. State, 12 Tex. Cr. App. 436.”

This does not seem to have been necessary in deciding the case. A similar construction of the statute is given in Taylor v. State, 41 Tex. Cr. R. 148, 51 S. W. 1106; Lee v. State, 44 Tex. Cr. R. 460, 72 S. W. 195; Betts v. State, 60 Tex. Cr. R. 635, 133 S. W. 251.

We believe that in so far as these decisions that lay down the proposition that the statutes quoted above require the submission of manslaughter without proof of adequate cause where the instrument used is not per se a deadly weapon, that they misconceive the purpose and effect of the statute. This is the view of Mr. Branch as stated in his Ann. P. O. p. 1183. This is in accord with the opinion of this court written by Judge Hurt in the Hill Case, 11 Tex. App. 470. Relying upon this interpretation in the published opinions of this court in Johnson v. State, supra, and the other cases mentioned in that connection, appellant’s counsel regarded the evidence such as to require the trial court to submit the charge of manslaughter and excepted to its failure to do so. The exception was general, however; its terms being, in substance, such as were held insufficient in the cases cited in Branch’s Ann. P. C. p. 1131, § 2004. The trial court, guided by the opinion of this court in Hill v. State, supra, and its own interpretation of the statute, held, we think correctly, that the issue of manslaughter was. not raised.

The manner in which the blow was struck with the ax handle, in connection with the circumstances, and the effect of the blow in crushing the bones of the skull of deceased, was such that we would not be justified in holding the evidence insufficient to sustain the finding of intent to kill.

I therefore believe that the motion for rehearing should be overruled.

PRENDERGAST, J.

I concur in overruling the motion. In the original opinion by mistake I stated it was appellant who called on deceased at his home the day before he killed him. It was not appellant, but his father. This mistake was in no way material. against appellant.
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