author: PRBNDERGAST, P. J.

text:
    LOWERY v. STATE.
    (No. 4010.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.
    Rehearing Denied April 19, 1916.)
    1. Indictment and Information @=>111(1)— Sufficiency of Indictment — Negative Allegations — Statute.
    Under Pen. Code 1911, art. 748, making it unlawful for any practitioner of medicine to furnish to, or prescribe for the use of, any habitual user any morphine, etc., provided that practitioners of medicine may in good faith prescribe for the use of any habitual user of narcotic drugs such substances as he may deem necessary for the treatment of such habit, an indictment not negativing the prescription of the morphine as a cure for the habit was sufficient, within the rule that where the proviso, whether in the same or some other article of the statute, is not a constituent part of the offense, it is unnecessary to negative it, as in such case', it is a matter of defense only.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 295; Dec. Dig. @=>111(1).]
    2. Indictment and Information @=>111(3)— Negative Allegations — Exception or-Proviso.
    When a statute prescribes an offense and also therein contains an exception or proviso which is made a constituent or necessary part of the- offense, such exception or proviso must be negatived by proper allegation in the indictment to make a good pleading, and this is true whether the exception is in the s'ame or some other article of the statute.
    [Ed. Note. — For other cases, see Indictment, and Information, Cent. Dig. § 297; Dec. Dig. @=>111(3).]
    3. Poisons @=>9 — Prescribing Morphine — Instruction — Evidence.
    In a prosecution under Pen. Code 1911, art. 748, making it unlawful for any physician to prescribe any morphine, etc., to an habitual user, with a proviso permitting a physician to prescribe in good faith any substance he may deem necessary for the treatment of such habit, where the testimony of the alleged addict did not show that defendant in prescribing the morphine for her was treating her for any spell of asthma, nor to cure her of the morphine habit, a charge not to consider the testimony of such addict or of any other witness with reference to her physical condition caused by other physical ailments, except to show that defendant was treating her for the morphine habit and not to consider her testimony that he reduced the amount of the prescription after the indictment, was not reversible error.
    [Ed. Note. — For other cases, see Poisons, Cent. Dig. § 6; Dec. Dig. @=>9.J
    4. Criminal Law @=>1172(7) — Party Entitled to Allege Error.
    In such case, the defendant could not complain of an instruction in his favor.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3160; Dec. Dig. @=>1172(7).]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    T. A. Lowery was convicted for unlawfully prescribing m'orphine to an habitual user, and he appeals.
    Affirmed.
    Mays & Mays, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRBNDERGAST, P. J.

Appellant was convicted for unlawfully prescribing morphine to an habitual user and assessed the lowest punishment, a fine of $25.

Appellant contends that the indictment is fatally defective, in that, in substance, there is no proper allegation therein negativing the proviso.

The statute (P. C. art. 748) is:

“It shall be unlawful for any practitioner of medicine, dentistry or veterinary medicine to furnish to, or prescribe for the use of, any habitual user of the same, any cocaine or morphine, or any salts or compound of cocaine or morphine, or any preparation containing cocaine or morphine or their salts, or any opium or chloral hydrate, or any preparation containing opium or chloral hydrate; and it shall also be unlawful for any practitioner of dentistry to prescribe any of the foregoing substances for the use of any person not under his treatment in the regular practice of his profession, or for any practitioner of veterinary medicine to prescribe any of the foregoing substances for the use of any human being: Provided, however, that the provisions of this section shall not be construed _ to prevent any lawfully authorized practitioner of medicine from prescribing in good faith for the use of any habitual user of narcotic drugs such substances as he may deem necessary for the treatment of such habit.”

The indictment, outside 'of the proper preliminary and concluding allegations, is:

That appellant, in said state and county, on December IB,- 19Í5, “was then and there a lawfully authorized practitioner of medicine, and, as such, did then and there unlawfully prescribe morphine for the use of Josie Evans, who was then and there an habitual user of morphine.”

The same question as to the sufficiency of the indictment in the case of E. D. Fyke v. State, 184 S. W. 197, from the same county was passed upon therein hy us on March 15th, instant, that is raised in this case, and we there held that the indictment was sufficient. We did not there discuss the question, nor cite the authorities. We deem it best to now do ⅜> in this case, which is equally applicable to the Fyke Case.

There are two rules, each fully and well established — one, that when a statute prescribes an offense, and also therein contains an exception or proviso which is made a constituent or necessary part of the olfense, then such exception or proviso must be negatived by proper allegation in the indictment or information to make a good pleading. Tire second is that where the exception or proviso is not made a constituent or necessary part of the offense hy the statute itself, then it is wholly unnecessary for the indictment or information to negative such exception or proviso. In that event, the exception or proviso is a matter of defense only. And in both rules, it makes n'o difference whether the exception or proviso is in the same, or some other article of the statute. These two rules are not always kept clear in the decisions. It is sometimes held by decisions that simply because the exception or proviso is in the same article, or what is called the “enacting” article of the statute, it must be negatived, regardless of whether or not it is made a constituent or necessary part of the offense. Herein is where the seeming conflict in the decisions arises.

The second, and not the first, rule above, is applicable in this case to the statute under which this prosecution and conviction was had. The proviso in said statute in no proper sense is made either a constituent or necessary part of the offense, but instead, is made a matter of defense only. The statute in plain terms prescribes: It shall be unlawful for any practitioner of medicine, dentistry, or veterinary medicine, to prescribe for the use of any habitual user of tile same, any morphine. That is the offense. Then, as a matter of defense for the lawfully authoriged, practitioner of medicine only, the statute further prescribes:

“Provided, however, that the provisions of this section shall not be construed to prevent any lawfully authorized practitioner of medicine from prescribing in good faith for the use of any habitual user of narcotic drugs, such substances as he may deem necessary for the treatment of such habit.”

The case of Brown v. State, 74 Tex. Cr. R. 498, 168 S. W. 861, is exactly in point in this case. We there cited some of the authorities, among them, U. S. v. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538, and Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, and also Ann. Cas. 1913B, 112. In the Slack Case, in the opinion of Judge Harper on rehearing, we cited and quoted from many decisions directly in point on the question, completely establishing and sustaining the second rule hereinabove stated. Ordinarily, we would not again cite and quote these authorities, but in this instance, we will again cite and quote some of them, as well as cite some others.

This court, through Judge Ramsey, in Newman v. State, 58 Tex. Cr. R. 228, 124 S. W. 956, expressly stated, in substance* that the second rule above stated was recognized and held by this court, and cited Mosely v. State, 18 Tex. App. 311, Hodges v. State, 44 Tex. Cr. R. 444, 72 S. W. 179, Wilkerson v. State, 44 Tex. Cr. R. 455, 72 S. W. 850, Osborne v. State, 42 Tex. Cr. R. 557, 61 S. W. 491, and Hankins v. State, 72 S. W. 191. There are also many other decisions 'of this court to the same effect cited by Judge Harper in said Slack Case, and also in said Brown Case, supra. We will not again here cite those same cases. We now cite and quote from some of the decisions cited and quoted by Judge Harper in said Slack Case.

In United States v. Cook, supra, it is held:

“Commentators and judges have sometimes boon led into error by supposing that the words ‘enacting clause,’ as frequently employed, mean the section of the statute defining the offense, as contradistinguished from a subsequent section in the same statute, which is a misapprehension of the term, as the only real question in the case is whether the exception is so incorporated with the substance of the clause defining the offense as to constitute a material part of the description of the acts, omission, or other ingredients which constitute the offense. Such an offense must be accurately and clearly described, and if the exception is so incorporated with the clause describing the offense that it becomes in fact a part of the description, then it cannot he omitted in the pleading; but if it is not so incorporated with the clause defining the offense, then it is matter of defense and must be shown by the other party, though it be in the same section or even in the succeeding sentence. 2 Lead. Or. Gas. (2d Ed.) 12; Vavasour v. Ormrod, 9 Dowl. & Ryl. 597; Spieres v. Parker, 1 T. R. 141; Commonwealth v. Bean, 14 Gray (Mass.) 52; 1 Stark Cr. Pl. 246.”

In State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488, it is held:

“Prom a careful examination of all the authorities upon this subject, we are of opinion that it is only necessary in an indictment for a statutory offense to negative an exception to the statute, when that exception is such as to render the negative of it an essential part of the definition or description of the offense charged. It is the nature of the exception, and not its locality, that determines the question whether it should be stated in the indictment or not. The question is, as stated in State v. Abbey [29 Vt. 66, 67 Am. Dec. 754], ‘whether the exception is so incorporated with, and becomes a part of the enactment as to constitute a part of the definition or description of the offense; for it is immaterial whether the exception or proviso be contained in the enacting clause or section, or be introduced in a different manner.’ ‘It is the nature of the exception, and not its location,’ which determines the question. Neither does the question depend upon any distinction between the words ‘provided’ or ‘except’ as they may be used in the statute.”

See, also, Metzker v. People, 14 Ill. 101; Stanglein v. State, 17 Ohio St. 453; State v. Miller, 24 Conn. 522; State v. McGlynn, 34 N. H. 422; State v. Wade, 34 N. H. 495.

In Territory v. Burns, 6 Mont. 74, 9 Pac. 432, it is held:

“It is a rule of pleading in criminal law that the indictment should set forth all that is necessary to constitute a complete description of the offense charged. This is especially true of statutory offenses, which is the character of the misdemeanor alleged in the above indictment. The indictment in such case should state all the ingredients of which the offense charged is constituted as contained in the statute which declares and defines such offense. When that is done, the prosecution has set forth a prima facie case, which is all that the law requires.
“When an exception is stated in the statute, it is not necessary to negative such exception unless it is a constituent part of the definition of the offense. The exception must be a constituent or an ingredient of the offense declared by the statute, in order to require that it shall be negatived by the indictment. It would appear to have formerly been the rule, that, ‘if the exceptions themselves are stated in the enacting clause, it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute.’
“But, however correct or otherwise this view may be, the current of authority now is that it makes no difference in what part of the statute the exception may appear; whether in what is commonly called the enacting clause or not. The criterion which determines the necessity to negative such exception is that it be a constituent or ingredient of the offense. In other words, that such exception is necessary to its complete definition. When the exception is not a part of the definition of the offense, and in this way does not, therefore, become a part of the enacting clause, it is a matter of defense. The enacting clause of a statute is not necessarily alone, or only that which purports to be such, but comprehends every part of the statute" which should be stated in order to define the offense with clearness and certainty. When this view of what constitutes the enacting clause is considered, it will be seen that the rule in relation to what should be set forth in indictments for statutory crimes has been uniform. The exception contained in the above statute is not a part of the definition of the offense. * * * United States v. Cook, 17 Wall. 168 [21 L. Ed. 538]; State of Nevada v. Ah Chew, 16 Nev. 50 [40 Am. Rep. 488]; Territory v. Scott, 2 Dak. 212 [6 N. W. 435]; State v. Robey, 8 Nev. 312; People v. Nugent, 4 Cal. 341; Foster v. People, 1 Colo. 294; Commonwealth v. Hart, 11 Cush. (Mass.) 130; Commonwealth v. Jennings, 121 Mass. 47 [23 Am. Rep. 249]; Commonwealth v. Byrnes, 126 Mass. 248; Commonwealth v. McClanahan, 2 Metc. (Ky.) 8; Fleming v. People, 27 N. Y. 329.”

In Stanglein v. State, 17 Ohio St. 453, it is held:

“A negative averment to the matter of an exception or proviso in a statute is not requisite in an indictment; unless the matter of such exception or proviso enter into and become a part of the description of the offense, or a qualification of the language defining it.”

In State v. Dry Fork Railroad Co., 50 W. Va. 235, 40 S. E. 447, it is held:

“The better rule, however, is that no matter whether the exception or proviso is in the enacting clause or not, if it is not a part of the-description of the offense in the statute, it need not be negatived in the indictment. 10 Ene. of PI. & Prac. 495.”

In Kitchens v. State, 116 Ga. 847, 43 S. E. 256, it is held:

“Where a statute provides in general terms that the commission of a given act by any person shall constitute a penal 'offense, and then provides that the law thus framed shall not apply to a given class of persons, it is not necessary that an indictment based upon the statute should aver that the accused does not belong to the class of persons thus excepted from the operation of the law.”

In Villines v. State, 96 Tenn. 141, 33 S. W. 922, it is held:

“Whether an indictment shall negative a proviso contained in the statute creating an offense depends not upon the place that the proviso or exception occupies in the statute, but rather its relation to that clause of the statute defining the offense. ⅜ * ⅜ If the proviso is so expressed in the statute as to be incorporated in the definition of the offense, the indictment must negative the proviso, otherwise it need not be-done, although the proviso may be contained in the section that defines the offense.”

The rule is tersely stated in section 238 of Wharton’s Pleading and Practice:

“Unless the proviso is so expressed in the statute as to be incorporated in the definition of the offense, it is not necessary to state in the indictment. that the defendant does not come within the exception.”

In State v. O’Donnell, 10 R. I. 472, it is said:

“Much confusion has been caused by using the phrases, ‘enacting clauses,’ ‘purview,’ ‘proviso,’ and ‘exception,’ in different senses. * * * The case of State v. Abbey, 29 Vt. 60 [67 Am. Dec. 754], contains the most sensible remarks on those rules we have seen. ‘The rule is founded on the general principle that the indictment must contain the statement of those facts which constitute an offense under the statute.’ A prima facie case must be stated, and matter of excuse must be shown by the defendant. ‘The question is, whether the exception is so incorporated with and becomes a part of the enactment as to constitute a part of the definition or description of the offense.’ It is the nature'of the exception and not its location which is incorporated.”

In State v. Rush, 13 R. I. 198, it is held:

“What exceptions in a penal statute are t,o be negatived in pleading, and what are merely matters of defense, was. quite fully considered by this court in State v. O’Donnell’s case. ⅜ * ⅜ 0⅞6 conclusion was there reached that the question was to be determined by their nature, and not their location with reference to the enacting clause.”

The same rule is announced in the case of State v. O’Gorman, 68 Mo. 179.

In Commonwealth v. McClanahan, 59 Ky. (2 Metc.) 8, it is held:

' “Nor is it necessary to allege that he is not within such proviso, even though the purview should expressly notice them, as by saying none shall do the act prohibited, except in the cases thereinafter excepted. Wharton’s Criminal Law, 190; [Matthews v. State] 2 Yerg. (Tenn.) 233; Commonwealth v. Young, 7 B. Mon. 1.”

.In addition, Judge Harper, in the Slaelr Case, further cites a large number of cases in the notes to volume 8 of the Digest of the United States Supreme Court Reports.

In a note to the Slack Case, reported also in, the Ann. Cas. 1913B, p. 135, the said second rule above stated is again laid down, and it is stated that it is supported in a large number of recent cases as follows:

United States. — U. S. v. Breed (C. C.) 179 Fed. 236.

Alabama. — Hyde v. State, 155 Ala. 133, 46 South. 489; Wright v. State, 3 Ala. App. 140, 57 South. 1023.

Arkansas. — Kansas City Southern R. Co. v. State, 90 Ark. 343, 119 S. W. 288.

California. — People v. Bartley, 12 Cal. App. 773, 108 Pac. 868; Hogan v. Superior Ct., 16 Cal. App. 783, 117 Pac. 947; People v. Priestley, 17 Cal. App. 171, 118 Pac. 965.

Colorado. — Fitch v. People, 45 Colo. 298, 100 Pac. 1132.

Delaware. — State v. Polk, Pennewill, 456, 69 Atl. 1006.

Florida. — Goff v. State, 60 Fla. 13, 53 South. 327.

Georgia. — Livingston v. State, 6 Ga. App. 208, 64 S. E. 709; Jones v. State, 8 Ga. App. 411, 69 S. E. 315; McAdams v. State, 9 Ga. App. 166, 70 S. E. 893.

Illinois. — People v. Evoldi, 152 Ill. App. 658; People v. Ezell, 155 Ill. App. 298; People v. Doschio, 157 Ill. App. 51.

Indiana. — State v. Barrett, 172 Ind. 169, 87 N. E. 7; Witty v. State, 173 Ind. 404, 90 N. E. 627, 25 L. R. A. (N. S.) 1297; Schondel v. State, 174 Ind. 734, 93 N. E. 67. See, also, State v. Bridgewater, 171 Ind. 1, 85 N. E. 715; Regadanz v. State, 171 Ind. 387, 86 N. E. 449; Walters v. State, 174 Ind. 545, 92 N. E. 537.

Kansas.— State v. Buis, 83 Kan. 273, 111 Pac. 189; State v. Belle Springs Creamery Co., 83 Kan. 389, 111 Pac. 474, L. R. A. 1915D, 515.

Kentucky. — Commonwealth v. McNutt, 133 Ky. 702, 118 S. W. 978; Commonwealth v. Louisville, etc., R. Co., 140 Ky. 21, 130 S. W. 798.

Louisiana. — State v. Slover, 128 La. 460, 54 South. 942.

Maryland. — Weber v. State, 116 Md. 402, 81 Atl. 606.

Mississippi. — Bennett v. State, 100 Miss. 684, 56 South. 777.

Missouri. — St. Louis v. Tielkemeyer, 226 Mo. 130, 125 S. W. 1123; State v. Smith, 233 Mo. 242, 135 S. W. 465, 33 L. R. A. (N. S.) 179. See, also, State v. Gow, 235 Mo. 307, 138 S. W. 648.

Nevada.—Ex parte Davis, 33 Nev. 309, 110 Pac. 1131.

New York.—People v. Schultz, 149 App. Div. 844, 134 N. Y. Supp. 293.

Ohio. — Hamilton v. State, 78 Ohio St. 76, 84 N. E. 601.

Oklahoma.' — Smythe v. State, 2 Okl. Cr. 286, 101 Pac. 611, 139 Am. St. Rep. 918; De Graff v. State, 2 Okl. Cr. 519, 103 Pac. 538.

Texas.—Jelinek v. State, 52 Tex. Civ. App. 402, 115 S. W. 908; Newman v. State, 58 Tex. Cr. R. 223, 124 S. W. 956; Doyle v. State, 143 S. W. 630.

Vermont. — State v. Carruth, 85 Vt. 271, 81 Atl. 922.

Virginia. — Devine v. Commonwealth, 107 Va. 860, 60 S. E. 37, 13 Ann. Cas. 361.

Washington.—State v. Davis, 43 Wash. 116, 86 Pac. 201; State v. Seifert, 65 Wash. 596, 118 Pac. 746.

Wisconsin.- — Splinter v. State, 140 Wis. 567, 123 N. W. 97.

Wyoming. — Vines v. State, 19 Wyo. 255, 116 Pac. 1013.

Canada.- — Rex v. Gill, 18 Ont. L. Rep. 234, 12 Ont. W. Rep. 742.

The first rule above is also stated in said note, and authorities cited to support it.

The only other question is appellant’s complaint of one paragraph of the court’s charge, which, we think, under the facts of' this case, presents no reversible error. We will state, in substance, all the testimony.

Josie Evans testified:

That she had lived in .Ft. Worth eight months. “I have used morphine for nearly eight years, and soon after I came to Ft. Worth, I went to Dr. T. A. Lowery’s office, and he prescribed the prescriptions introduced here in evidence which show that the 46 prescriptions of 10 grains each were issued to me within a period of a little less than two months. I paid him §1 each for the first prescriptions, and later paid him 50 cents each for the others. I have been suffering from asthma from childhood; that is, not continually, but severe spells at times. He reduced the other prescriptions later to 3 grains, but this was after he was indicted for unlawfully prescribing narcotics.”

The druggist Gaither testified that he filed the said prescriptions issued by appellant to Josie Evans for morphine, “as shown here in the evidence.” Whereupon the state rested.

The appellant then introduced five doctors, who purported to testify solely as experts to the effect that reduction is one of the oldest and best known methods of treating addicts, but they really should he confined or guarded during the treatment; that at times the patient has not this protection. Then follows their answer, evidently to a purely hypothetical question, which was based on a state of fact in no way disclosed by the testimony, and especially the testimony of Josie Evans.

He next introduced Mr. Musick, the deputy United States revenue collector, who stated that, after the United States Harrison Narcotic Law was passed, appellant advised with him thereabout, and that he explained to him what he understood applied to said Harrison Law. It is unnecessary to further state this. This was all the testimony appellant introduced.

The state then had four doctors to testify that it was impossible to treat an addict permitted to run at large when the reduction treatment is used, but it takes only from 6 to 10, or 15 days to reduce them, and take them from the drug, and then they give their opinion on a hypothetical question unnecessary to state. This was all the testimony.

So far as the court’s charge is concerned, it required the jury to believe from the evidence, beyond a reasonable doubt, everything that was necessary before they could convict him, and in his behalf, went further than the testimony would authorize, in that he told them, in effect, that if appellant in good faith deemed the prescription of said morphine to Josie Evans was necessary for the treatment of the habit, or if they had a reasonable doubt, to acquit him. However, that was in his favor, and he could not, and does not, complain of it. What he complains of is that the judge instructed the jury not to consider the evidence of Josie Evans or any other witness, if any, with reference to the physical condition of the said Josie Evans, caused by other physical ailments, except for the purpose of showing that appellant was treating her for the habit of using mor-pihine, nor to consider her testimony to the effect that he reduced the amount of the prescriptions to hereafter the indictment herein. This charge presents no reversible error, for the testimony of Josie Evans does not show that in prescribing the morphine for her by appellant, he was treating her for any spell of asthma, nor to cure her of the morphine habit. If the testimony had shown that he prescribed this morphine to relieve her at the time from a severe spell of asthma, a different question would be presented. In the Fyke Case, supra, we discussed this question, and there held, as the testimony in that case clearly raised the issue, that the doctor had a right to prescribe morphine to relieve pain when the patient was suffering from a different and additional severe infliction, not for the morphine habit. The testimony in the Fyke Case on this point was altogether different from the testimony in this case.

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


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    LUNDSCHIEN v. STATE.
    (No. 3991.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    Criminal Law <S=>1095, 1102 —Appeal — Statement of Facts — Bills oe Exception-Time por Filing.
    Statement of facts and bills of exception in a misdemeanor case, filed after the expiration of 20 days after the adjournment of the court trying tie case, will be stricken on motion of the Attorney General.
    [Eld. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. <§=»1095, 1102.]
    Appeal from De Witt County Court; R. J. Waldeck, Judge.
    E. C. Lundschien was convicted of willfully and maliciously killing a mule, and he appeals.
    Judgment affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State. *
   HARPER, J.

Appellant was prosecuted for willfully and maliciously killing a mule, the property of W. F. Lundschien, and his punishment assessed at a fine of $200.

Appellant was tried the 8th day of last October, and that term of court adjourned on October 23, 1915. The Assistant Attorney General has moved to strike out the statement of facts and bills of exception, because not filed within the time allowed by law. The motion is sustained, and the judgment is affirmed. De Friend v. State, 153 S. W. 881; Durham v. State, 155 S. W. 222.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    FREGIA v. STATE.
    (No. 4022.)
    (Court of Criminal Appeals of Texas.
    April 6, 1916.)
    1. Homicide <s=»90 — Assault to Murder-Deadly Weapon.
    A pocketknife is not per se a deadly weapon. Consequently, where accused assaulted his wife with a pocketknife, he cannot be convicted of assault with a deadly weapon, unless he was in such a position that he could inflict bodily injury, or the knife was such that he could inflict serious or mortal wounds. Consequently, a charge which merely submitted the question whether accused made an assault with a deadly weapon, and authorized a conviction of assault to murder in case he did, is erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 119; Dec. Dig. <⅜^>90.] ■
    2. Homicide <§=>94^-ássault to Murder-Defenses.
    Where, acting under influence of a sudden passion aroused by adequate cause, accused assaulted his wife with a pocketknife, but death did not result, he cannot be convicted of assault to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 122; Dec. Dig. ⅞⅛94.]
    3. Homicide <§=j257(8) — Assault to Murder —Intent to Kill.
    Proof that accused used a pocketknife in an assault on his wife does not of itself show intent to kill.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 551; Dec. Dig. <⅜=>257(8).]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Joe Fregia, alias Joe Williams, was convicted of assault to murder, and he appeals.
    Reversed and remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of assault to murder, his punishment being assessed at two years’ confinement in the penitentiary.

Exceptions to the court’s charge were presented in due time, properly approved by the judge. The exceptions are: First, that it is not authorized by the undisputed evidence of the state’s witnesses, which testimony shows that defendant was at no time within such distance of Dizzie Fregia as to inflict injury upon her vdth the knife; second, there is no evidence that authorizes the submission to the jury of a charge of assault with intent to murder with a deadly weapon.

The court submitted the state’s case on the theory that the weapon used was a deadly weapon, and as used, if the jury so found, Would entitle the state to a conviction for assault to murder. It is deemed unnecessary to go into a detailed statement of the facts. The alleged assaulted party was appellant’s wife. The trouble occurred at a social function, defendant coining upon the scene and finding his wife selling ice cream in connection, or apparently so, with another man. There had been trouble between defendant and his wife. She testified that he had been cruel to her prior to this time, having made personal assaults on her. The only evidence in the case with reference to the instrument used was that it was a pocketknife. Its length, or its size, is not given, except that it was a poeketknife. There is same dispute as to whether it was open or not, even from the state!s standpoint; but there is conflict in the testimony from the defendant’s side that it was not, and that he did not make an assault upon her with a knife. The evidence is variant as to the immediate difficulty, the wife testifying that appellant had a poeketknife and cut at her. He denied this. The distance between them, or whether she was in danger of being cut by the knife, is left too uncertain and indefinite, we think, to show that he was within striking distance by means of the use of the knife. He followed her to her father’s house and near by was shot by the man who was with her at the social function.

The court should not have assumed, under these facts, that the weapon was a deadly weapon. A poeketknife is not per se a deadly weapon, and in order to constitute it such there must be evidence to show that it was so used. The court did not instruct the jury with reference to this particular matter, but simply submitted the matter to the jury to find if appellant made an assault with a deadly weapon upon the alleged assaulted party they would convict of assault to murder, if there was an intent to kill, and, if not, then it would be aggravated assault. We are of the opinion that the court’s charge is erroneous. It should have instructed the jury that before he could be convicted of assault to murder he must be within such distance that he could have inflicted an injury upon the alleged assaulted party by the use of the means employed, and further that the jury should have been instructed as to what it takes to constitute a deadly weapon, especially under the facts of this case. If he had a pistol and was shooting at her within short range, we would have had a different proposition; but the only evidence we have here is the fact stated and undisputed that it was a poeketknife, without any further description. To the mind of the writer the facts do not justify the conviction of assault to murder. See Branch’s Grim. Daw, § 517. Mr. Branch thus lays down one of the rules:

“If weapon is not shown to be deadly, or wounds serious, it is not assault to murder, though defendant said he intended to kill; the desire to kill is not proof that weapon was deadly.” Gage v. State, 77 S. W. 806; Foster v. State, 89 Tex. Cr. R. 399, 46 S. W. 231; Sloan v. State, 76 S. W. 922.

To constitute an assault with intent to murder, the assault must be coupled with an ability to commit a battery upon the person assaulted. McCullough v. State, 24 Tex. App. 128, 5 S. W. 839. See also the statute.

If defendant was acting under the influence of sudden passion aroused by an adequate cause, conviction for assault to murder, death not resulting, will not be sustained. Mays v. State, 19 S. W. 504. Proof that weapon used was a poeketknife is not sufficient of itself to show that the intent was to kill. Martinez v. State, 35 Tex. Cr. R. 386, 33 S. W. 970.

For the reasons indicated, the judgment is reversed, and the cause is remanded.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SALVADOR v. STATE.
    (No. 4024.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    1. Intoxicating Liquors <⅜=0239(5) — Offenses — Instruction—‘ ‘Intoxicating. ’ ’
    In a prosecution for violating the local option law, where it was a serious issue whether the cider sold by defendant was intoxicating, the court should have charged the request that before the jury could convict they must be satisfied that defendant sold one quart of cider to the prosecuting witness, and that the cider was “intoxicating,” i. e., when taken into the stomach of an ordinary man in reasonable quantities would intoxicate him.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent Dig. § 336; Dec. Dig. 239(5).
    For other definitions, see Words and Phrases, First and Second Series, Intoxicating Liquor.]
    2. Intoxicating Liquors <§^148 — Local Option Law — Unlawful Sale — Nature or Liquor.
    One is not guilty of violating the local option law unless he sells an intoxicant or a liquor, which, when taken in reasonable quantities, will intoxicate.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. @=^148.]

      3. Intoxicating Liquors <⅞^231 — Offenses —Evidence.
    In a prosecution for having violated the local option law by selling cider, testimony of witnesses, that 40 or 50 years ago in Tennessee and Georgia they had made cider which would not intoxicate when fresh, but would if it became hard cider, was inadmissible as irrelevant.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 291; Dec. Dig. <§mo231J
    Appeal from Wise County Court; J. W. Walker, Judge.
    P. Salvador was convicted of violating the local option law, and he appeals.
    Judgment reversed, and cause remanded.
    Ratliff & Spencer, of Decatur, and H. E. Lobdell, of Bridgeport, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted for violating the local option law, his punishment being assessed at a fine of $25 and 20 days’ imprisonment in the county jail.

The evidence is to the effect that appellant was selling apple cider. Some of the evidence of one or two state’s* witnesses shows or tends to show, that it was an intoxicant. Appellant’s contention was that it was not, that it was ordinary apple cider; and a great deal of testimony was introduced to show that it was not an intoxicant.

The court instructed the jury that if they find appellant did unlawfully sell intoxicating liquor to J. P. Clement as charged, and that the sale of intoxicating liquor had theretofore been and was then and there prohibited in Wise county, they should find him guilty. Appellant asked the following instruction, which was refused:

“Before you can convict, you must be satisfied from the evidence in this case beyond a reasonable doubt that the defendant, P. Salvador, sold to prosecuting witness Clements one quart of cider in Wise county on the 9th day of March, 1915, and that said cider was intoxicating; that is, that same, when taken into the stomach of an ordinary man in reasonable quantities, would intoxicate him, and, unless you so believe beyond a reasonable doubt, you will acquit the defendant.”

In substance, this was presented in another form in another special requested instruction, which was also refused. We believe these charges should have been given. The court did not give this phase of the law, and it was a very serious issue in the case with,quite a lot of evidence against the fact that it was intoxicating. On this question the testimony is in direct conflict. This issue was raised in the case, and it is the law, as we understand in Texas, that before a party can be convicted of violating the local option law the evidence must show that he sold an intoxicant, or that the liquid if taken in reasonable quantities would intoxicate; otherwise, it is not a sale of intoxicants in local option territory. It is true, a man does not have to get drunk; but the beverage or liquid used must be of such a nature that if taken in reasonable quantities it might or would intoxicate. This issue was presented by this record and special charges in regard to the matter were refused, and exception taken.

There is another question presented which we think was erroneous. These will be treated in a general way, as both bills are to the same effect. Testimony was permitted from a couple of witnesses to the effect that some 40 or 50 years ago they made cider in Tennessee and Georgia, and that fresh cider or new cider would not intoxicate when they made it, but if it became what they called “hard cider” it would intoxicate. These witnesses testified that the eider they referred to was made of apples, and the evidence here indicates that the cider mentioned was apple cider. It was bought by appellant as apple cider and sold generally and openly. Objections were urged to this testimony, which we think should have been sustained. The process in making apple cider may or may not have been in vogue at the time this cider was made, if made from apples, as testified by the witnesses, 30, 40, or 50 years ago. There was no evidence in the record that this was hard cider. The testimony shows that appellant shipped it from Memphis, Tenn., or some point in Tennessee. He sold it at his drink stand to any and every body, and a great many people bought and drank it.' The state could prove, if it could, that it was hard cider sold by appellant, and was intoxicating; but to go back 40 or 50 years to the then process of making apple cider and that it was then a nonintoxicant or an intoxicant, would hardly be germane or relevant to the issue in this case — at least, without some fact which showed that this would come within the plan of making cider at the time about which these witnesses testified. As presented, this testimony Was inadmissible.

There is another question presented for revision, to wit, the remarks of the county attorney. Upon another trial these matters will not occur..

For the reasons indicated, the judgment is reversed, and the cause is remanded.
      @=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COLEMAN v. STATE.
    (No. 4028.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    1. Criminal Law <S=^982 — Suspension of Sentence — Question for Jury.
    Under the suspended sentence statute, providing that no one can have his sentence suspended if he has theretofore been convicted of a felony, and that the jury must first find from the evidence whether the accused has ever been convicted of a felony before they can consider the plea for a suspended sentence, the jury’s finding that he has been convicted of a felony precludes further inquiry ; but, if they find that, he has not been convicted of a felony, it is for them to determine whether or not the evidence justifies a suspension of the sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2500; Dec. Dig. <§=9S2.]
    2. Criminal Law <§=1171(1) — Harmless Error-Remark ox District Attorney.
    The remark of the district attorney on the question of the suspension of the sentence that some people blamed him for being too easy, and that, if the jury turned the defendant loose, and they heard any criticism on account of the sentence being suspended, he wanted them to tell that the jury did it, was not reversible error, where, under the plea of g'uilty and the evidence adduced, no different verdict could be reached at another trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3127; Dec. Dig. <§=1171(1).]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    J. B. Coleman was convicted of forgery, and he appeals.
    Affirmed.
    Clem C. Countess, of Belton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was charged with forgery; he entered a plea of guilty, and asked that his sentence be suspended. The jury assessed his punishment at two years’ confinement in the state penitentiary, and refused to suspend the sentence.

Appellant contends that the court erred in leaving it to the jury to decide whether or not they would suspend the sentence; his contention being that the only question the court should have submitted to the jury was whether or not he had ever before been convicted of a felony, and, if they found he had not, a suspension of the sentence followed as a matter of law. This is not a correct construction of the statute. The law in pla'in terms provides that no man can have his sentence suspended if he has theretofore been convicted of a felony, and the ■ jury must first find whether or not, under the evidence, the person on trial has ever been convicted of a felony before they can consider the plea for a suspended sentence. If the jury finds that the person on trial has theretofore been convicted of a felony, no further inquiry can be made. If they find that he has not been convicted of felony, then they should consider and determine whether or not the evidence, in their opinion, justifies a suspension of the sentence. This is a question for the jury to determine, and not for the court, and the court did not err in submitting that question to the jury.

The only other bill in the record complains of the remarks of the district attorney on the questiomof suspension of the sentence. The district attorney said “some people blamed him for being too easy; that, if the jury turned this defendant loose, and they heard any criticism on account of the sentence being suspended, he wanted them 'to tell that they, the jury, did it.” Under the plea of guilty, and evidence adduced in this case, we do not think such remarks would authorize a reversal of the case. No other or different verdict, under his plea of guilty, could or would be arrived at on another trial; he having been given the lowest penalty.

The judgment is affirmed.
      @=»Eor other cates see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BENNETT v. STATE.
    (No. 4007.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.
    On Motion for Rehearing April 19, 1916.)
    1. Indictment and Information <§=189(2)— Conviction ox Included Oxxense — Aggravated Assault — Simple Assault.
    Under a charge of aggravated assault, based upon the allegation that the defendant was an adult male person, and the assault was upon a child, where the evidence failed to show he was an adult, it was not error to submit the issue of simple assault, since the charge could not be sustained in the absence of such showing.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 585, 589; Dec. Dig. 0=189(2).]
    2. Criminal Law <g=741(l) — Trial —Direction ox Verdict.
    Where the evidence would support conviction, it is not error to refuse to direct a verdict of acquittal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1705, 1713, 1727, 1728; Dec. Dig. ®=741(1)J
    3. Criminal Law 0=1038(1) — Appeal—Scope ox Review — Misdemeanors.
    On appeal from conviction of a misdemeanor instructions which were not objected to cannot be reviewed.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. 0=1038(1).]
    On Motion for Rehearing.
    4. Criminal Law <§=1038(1) — Appeal—Preservation ox Exceptions.
    Where the defendant, charged with aggravated assault, failed to object to the submission of the issue of simple assault, he cannot, after conviction, raise the question that he could have, been convicted only of aggravated assault.
    TEd. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dee. Dig. <§=1038(1).]
    5. Indictment and Information <§=189(2)— Ag&ravated Assault — Included Oxxenses.
    In every indictment or information charging aggravated assault, simple assault is necessarily included.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 585, 589; Dec. Dig. <§=189(2).]
    Appeal from Newton County uourt; W. E. Gray, Judge.
    Eddie Bennett, being charged with making an aggravated assault, was convicted of simple assault, and he appeals.
    Affirmed.
    Wightman & Hancock, of Newton, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

The complaint charged appellant with making an aggravated assault on Viola Scott, alleging that appellant was an adult male and the said Viola Scott a child. The facts show that appellant is a teacher, and that he severely whipped Yiola Scott, she being one of his scholars.

The contention is made that the court erred in submitting simple assault, and that the verdict of the jury, finding him guilty of simple assault, cannot be sustained, in that appellant is an adult male person, and the law makes an assault by a male person on a child an aggravated assaylt. While the information alleges appellant to be an adult, yet there is no evidence in the record that he is an adult, and it has been frequently held by this court that where the evidence fails to show that the accused is an adult, a judgment of conviction for aggravated assault cannot be sustained. Hartsell v. State, 55 Tex. Cr. R. 389, 116 S. W. 1159; Smith v. State, 51 Tex. Cr. R. 645, 104 S. W. 899; Robinson v. State, 25 Tex. App. 111, 7 S. W. 531; Andrews v. State, 13 Tex. App. 343; Davis v. State, 76 S. W. 466; Ellers v. State, 55 S. W. 813; Kemp v. State, 25 Tex. App. 589, 8 S. W. 804. So, instead of the evidence not authorizing the verdict of the jury, if the jury had found appellant guilty of aggravated assault, it could not have been sustained, as there is no evidence in the record to show that he is an adult.

The only bill of exceptions in the record complains that the court erred in not giving the special charge, instructing the jury to return a verdict of not guilty. The evidence, while conflicting, from the state’s standpoint, amply supports the verdict, and the court did not err in refusing to instruct a verdict of acquittal.

This being a misdemeanor, there are no other questions presented in the motion for a new trial we can consider. Basquez v. State, 56 Tex. Cr. R. 329, 119 S. W. 861.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in which he earnestly insists that the court was in error in stating there was no evidence that appellant was an adult male person. As he contends, there is ample evidence that he was a male person, but the evidence must go further and show that he was an adult male; that is, a person more than 21 years of age, before he can be convicted of an aggravated assault under the allegations of this information. Concede that there is evidence which would authorize the jury to find that he was an adult, appellant sitting quietly by and permitting the court to submit both aggravated assault and simple assault, making no objection thereto, can he, after conviction, raise the question that he, under the charge of the court, should not have been convicted of simple assault, but of aggravated assault, if guilty at all? We do not think so. In every indictment or information charging aggravated assault, simple assault is necessarily included. In this case, if the proof failed to show that appellant .was an adult male, yet did show beyond a reasonable doubt that he made an assault on the person named, he could and should be convicted of a simple assault. The contention that appellant makes has often been before this court, and has always been decided adversely to his contention. If a person is charged with an offense, and the court in his charge authorizes a conviction for a less grade of that offense, and the jury convicts of the lesser grade, he will not be heard to complain that he should, under the evidence, have been convicted of a graver grade of the offense charged. This was early decided in this court. In the case of Baker v. State, 4 Tex. App. 232, this court said:

“We know of no authority which would suggest the idea that one charged of a higher grade of an offense which includes different degrees, has been permitted to set aside a conviction simply on the ground that he has been convicted of a lesser degree of the offense than that charged in the indictment; or, when convicted of murder in the second degree, he has been heard to successfully complain that the testimony would have supported the higher offense of murder in the first degree.”

And in Powell v. State, 5 Tex. App. 246, the court held, as stated in the syllabus:

“A conviction will not be set aside because the court below gave to the accused the benefit of a charge on a less degree of offense than the jury would have been warranted in convicting him of; nor because the jury, in view of mitigating circumstances, were unwilling to convict of the greater offense.”

Many cases could be cited, but the rule is so tersely stated by Judges Davidson and Henderson in their opinions in the case of Pickett v. State, 43 Tex. Cr. R. 1, 63 S. W. 325, we do not deem it necessary to cite other authorities. Judge Davidson says:

“Other cases are numerous to the effect that, where there is evidence of a higher grade of offense, a conviction will not be disturbed for the inferior degree, though there was no testimony showing the inferior degree.”

Judge Henderson says:

“This doctrine is too well settled by our decisions to be controverted.”

If it was a different offense, and not a degree of the same offense, the authorities cited by appellant might be applicable.

The motion for rehearing is overruled.
      c§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: 'HARPER, J.

text:
    McDOUGAL v. STATE.
    (No. 3932.)
    (Court of Criminal Appeals of Texas.
    Feb. 23, 1916.
    On Motion for Rehearing, March 22, 1916.
    State’s Rehearing Denied April 19, 1916.)
    1. Homicide <§=>300(7) — Evidence—Issues— Provocation or Difficulty,
    On evidence in a trial for murder, the submission of the issue of provocation of the difficulty held not erroneous.
    [Ed. Note — Eor other cases, see Homicide, Cent. Dig. § 622; Dec. Dig. <§=>300(7).]

      2. Homicide <©=>51 — “Manslaughter” — Provocation of Difficulty.
    One provoking a difficulty with no intent to kill or to inflict serious bodily injury, and thereby bringing about the necessity of killing the deceased to save his own life or to prevent serious bodily injury by deceased, is guilty of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 75; Dec. Dig. <©=>51.
    Eor other definitions, see Words and Phrases, First and Second Series, Manslaughter.]
    3. Witnesses <©=>268(16) — Cross-Examination — Scope.
    In a trial for murder, where defendant’s wife had testified that he shot deceased in self-defense, she could not be cross-examined so as to bring out her opinion of defendant’s guilt and her conclusion as to what caused him to kill deceased.
    [Ed. Note. — For other cases, see Witnesses, Gent. Dig. § 948; Dec. Dig. <©=>268(16).]
    4. Witnesses <©=>379(3) — Impeachment—Contradiction.
    In a trial for murder, where defendant’s wife testified on direct examination that defendant had shot deceased in self-defense, evidence that she had stated to the son of the deceased that defendant had killed deceased because he had sued him was admissible as going to hex-credibility.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1247, 1248; Dec. Dig. <©=> 379(3).]
    5. Witnesses <©=>380(1) — Impeachment — Wife of Defendant.
    The wife of a defendant placed on the stand as a witness may be impeached by showing that she made conti-adietory statements, the same as any other witness, as to matters to which she testifies on direct examination at defendant’s instance.
    • [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1210, 1219; Dec. Dig. <©=>380(1).]
    6. Homicide <©=>163(2) — Evidence—Reputation of Deceased.
    In a trial for murder, where it appeared that either the deceased or defendant had cursed and applied offensive epithets to the other during the altercation, and where defendant attacked the reputation of deceased as a peaceable law-abiding citizen, and himself testified that deceased was a man of bad reputation and had engaged m many fights and had cursed and abused him when no one else was present, the state might show, by the intimate .associates of deceased, that he was not a man who cursed, and that they had never heard him use an oath.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 312-317; Dec. Dig. <©=>163(2).]
    7. Homicide <⅜=>300(9) — Instructions — Threats.
    In a trial for homicide, where there is no evidence of antecedent threats, it is not necessary to charge on threats made at the time of and during the fatal difficulty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 624; Dec. Dig. <©=>300(9).]
    8. Homicide <©=>300(9) — Instructions — Threats.
    In a trial for homicide, where there was no evidence of communicated threats, and the only evidence of threats related to those made by the deceased during the difficulty, it was not erroneous for the court to instruct thereon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 624; Dec. Dig. <©=>300(9).]
    On Motion for Rehearing.
    9. Homicide <©=>112(5) — Self-Defense — Provocation.
    On a l-easonable doubt that defendant intended by his words and acts to provoke a difficulty or a reasonable doubt that he employed words or acts towards deceased reasonably calculated to provoke a difficulty, Ms right of self-defense would not be abridged.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 149; .Dec. Dig. <©=>112(5).]
    10. Homicide <©=>340(1) — Harmless Error-Instructions — Self-Defense.
    In a trial for murder, an instruction, applicable to the evidence, giving the jury no opportunity to pass on defendant’s intention in provoking a difficulty, as bearing upon the abridgment of his right to self-defense, was reversible error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 715; Dec. Dig. <©=>340(1).]
    Appeal from District Court, Smith County; Jno. S. Mcllwaine, Special Judge.
    Ira W. McDougal was convicted of murder, and he appeals.
    Reversed and remanded on rehearing.
    Simpson, Dasseter & Gentry, of Tyler, for appellant. J. M. Edwards, of Tyler, and C. C. McDonald, Asst. Atty. Gen., for the State.
   'HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 20 years’ confinement in the state penitentiary, from which judgment he prosecutes this ap-’ peal.

Appellant shot and killed James E. Vick-ery on or about the 27th day of last August. He does not deny that fact, but claims he was justifiable in so doing. All the evidence shows that deceased was a merchant engaged in business at Lindale; that he had sold appellant goods on a credit in- some amount, and had brought suit against appellant for $28, and sued out a writ of attachment, placing it in the hands of the constable of the precinct. Appellant was a farmer, living a few miles from Lindale. Mr. York, the constable, says he went to appellant’s home and told him he had a writ and was going to levy on a certain horse. Appellant said this horse belonged to his 20 year old son. The constable says when he levied on the horse, appellant called to his son and said, “Saddle me a horse and give me my old shotgun, and I will go there and settle with the old grey-headed son of a bitch.” . York says he talked with appellant and reasoned with him, and appellant apparently became reconciled and gave a replevy bond for the horse. Appellant admits the attachment, and that he claimed the horse was the property of his son, and that he gave a replevy bond, but denies most emphatically that he said of and concerning Mr. Vickery the things the constable says he said. He denies he called for his old shotgun and said he would go up there and settle with the old son of a bitch. He says he called to his son to saddle his horse so he could go to a neighbor’s and get him to sign the replevy bond. Shortly after signing the replevy bond, appellant hitched up his wagon, and he and his wife and son went to Lindale, carrying the gnn with him in the wagon. He says he , was on his way to a neighbor’s to attend to some business, and carried the gun along to go squirrel hunting. He says when he got to Túndale he got out of the wagon to have a note drawn for $20 for Mr. Ginn to sign, as he (Ginn) owed him that amount on a buggy, and he wanted to borrow the money from the bank-and pay deceased what he owed him.

The state’s contention is that when appellant got out of the wagon he went to see a lawyer, Mr. Mallory, and while in Mr. Mallory’s office said that deceased, Vickery, had attached Henry’s horsej and, “I can tell you what I am going to do — I am going to kill the old s-n of a b-h, or he is going to kill me.” Appellant denies making this remark to the lawyer, but admits talking to him about the debt, and says he told him it was only $8.50 and not $28, and he was in town to settle the debt. The state shows that appellant then went to the depot where deceased was; that deceased left the depot and went to his store. Appellant gives as his reason for going to the depot that he went to the bank to borrow the money to pay the debt, and found the banker was at the depot, and was going on the train to Tyler, and he went to the depot to see the banker, but failed to get there in time; that on his way to the depot he met deceased and asked him if he would be at the store, when deceased drew his knife and said, “Xou son of a bitch, what do you want?” when he replied, “I want to settle with you, and will be back up there as soon as I go to the depot.” The state’s contention is they did not meet on appellant’s way to the depot. All agree that deceased did go from the depot to his store, and was either standing or sitting on his gallery when appellant returned from the depot and went to near the store, and all agree that the difficulty then ensued, although the evidence presents widely variant versions. The state’s contention is: That deceased was sitting on the gallery to hi.s store when appellant came up and they began talking. Pretty soon appellant called deceased a s-n of a b-h, when deceased told appellant “to go on away; that he did not want to dirty his hands with him.” That defendant then dared him to come out on the ground, saying, “I just dare you down on the ground, G-d d-n you, I will whip you before hell can scorch a feather,” when deceased replied, “Go on away from here, you cowardly rascal.” That they continued to fuss, appellant calling deceased a son of a b-h three or four times, when appellant left the store and went to his wagon and got his gun; that when he got his gun appellant’s wife and son called to him, “Don’t do that!” That appellant got his gun and returned to the store, and raised his gun in a shooting position and lowered it, and when deceased said: “Shoot! you won’t shoot, you cowardly rascal; you haven’t got the nerve” —appellant again raised the gun and fired. That deceased was on his gallery, making no advance on appellant or threatening gesture, when appellant shot and killed him.

Appellant says when he returned from the depot he went back by deceased’s store to settle with deceased, and told deceased to get his books and they would settle; that deceased replied, “G-d d-n you, you s-n of a b-h, I ain’t going to show you nothing,” when he replied, “There ain’t no use of me and you having trouble; I want to pay you every cent I owe you; if I owe you $28 I am willing to pay it,” but he did not think he owed but $8.50; that deceased had a knife in his hands, and he walked off to his wagon; that deceased kept cursing him, and said he was going to kill him (appellant), and that he need not get around his wife’s coat tail, as he (deceased) was going to kill him; that he (appellant) got his gun and walked back to near the store and told deceased, “If you don’t want to settle with me, you can go out there and settle with my wife and the boy;” that deceased kept cursing and abusing him, and started as if to go in the store, when he threw his gun on him and said, “Don’t you go in there to get that gun;” that deceased turned back and cursed him again, and started towards him with an open knife, saying he was going to cut appellant’s throat, when he shot.

The theory of both the state and defendant is each supported by several witnesses, and i.t is enough to say that if the state’s contention of the homicide is believed, it will support a verdict of murder; and if appellant’s contention was accepted as the correct version of the difficulty, the case would be no more than manslaughter, if not justifiable homicide.

One of the contentions relied on by appellant is that the court erred in submitting the issue of provoking the difficulty, the contention being that if the state’s theory of the case is true, there is no evidence that appellant provoked the difficulty with the intention of killing deceased or doing him any serious bodily injury. He cites us to the cases of McCandless v. State, 42 Tex. Cr. R. 58, 57 S. W. 673; Grayson v. State, 57 S. W. 809. In the Grayson Case it is shown that deceased was the party who was in search of the appellant, and went to where the appellant was, and the facts are wholly dissimilar to the facts in this case; and as to the Mc-Candless Case, it cites an illustration which we think aptly illustrates that in this case the court did not err in submitting to the jury the question of whether or not appellant by his acts and conduct provoked the difficulty. In the McOandless Case it is said:

“To illustrate: A. has a grudge against B. He arms himself and goes to a place where he knows he will meet B. He knows, or has reason to believe, that B. will resent an insult. He curses and abuses B. B. resents the _ insult, * * * whereupon A. shoots an,d tills B. Now, if A. sets up self-defense, it would be the duty of the court, in giving a charge on .that subject, to also give a charge on provocation, limiting A.’s right of self-defense.”

Measured by this rule of law, we think the evidence in this ease authorized the court to submit the issue of provoting the difficulty. Of course if the defendant’s evidence presents the way the difficulty arose and terminated, appellant was not guilty of provoking any difficulty, either with the view of killing deceased or doing him any serious bodily injury. In fact, according to his testimony, he did nothing to provoke a difficulty, and he shot to save his own life. But in passing on whether or not an issue is in a case, we must look to the whole evidence; and, if there is evidence, according to the state’s contention, to authorize the submission of an issue to the jury for them to determine which state of facts is true, the court does not err in properly submitting such an issue to the jury for determination. Can the court, as said in some of the cases, lay its hands on evidence that authorizes the submission of the issue? Appellant testified as a witness, and he testified that d&ceased was a high-strung man and would fight; that he knew this to be true, and that deceased went by the name of “Fighting Jim Vickery.” Thus he was aware that deceased was the character of man who would resent an insult. On the day of the homicide, when a horse was levied on at the instance of deceased as the property of appellant, appellant called to his son:

“Saddle me a horse and give me my old shotgun, and I will go up there and settle with the old grey-headed s-n of a b-h.”

When he gets to town he goes in Mr. Mallory’s office, and, among other things, says to Mr. Mallory, when talking about the levy on the horse:

“I can tell you what I am going to do — I am going to kill the old s-n of a b-h or he is going to kill me.”

This is but a short time before the fatal encounter. The state’s case is: Appellant, after this, went in front of the store of deceased and cursed and abused him, calling deceased a s-n of a b-h several times, and many other opprobrious epithets. Now, if appellant knew ■ deceased bore the name of “Fighting Jim Vickery”; that deceased had a shooting scrape with ’Bias Vickery; had fought and cut Henry McDaniel; that he had shot a negro; that he had cut Lem Gulley and knocked him down with a chair, and had beat up Rich Hilly and Bill Wilson; that he had beat up Frank Parry and his folks, and had beat up and cuffed around a lot of negroes, and had carried one negro off in the woods who had never been heard of again — what could and would he reasonably expected to happen if he goes to such a man’s place of business and begins cursing him? Appellant testifies he knew all these circumstances to be facts, and knew of them before the difficulty, and yet with the knowledge, according to the state’s case, he goes to deceased’s place of business and begins to dispute his account, and curses and abuses deceased, calling him a s-n of a b-h, and if, as he contends, deceased started towards him with an open knife, saying he would kill him, would not ordinary common sense have taught that deceased would resent his acts and conduct? Such a state of facts authorizes the submission of the issue of provoking the difficulty to the jury under the rule of law as laid down in both the Mc-Oandless and Grayson Cases, supra, cited by appellant, and there was no error in the court submitting the issue. For other authorities so holding, see Tardy v. State, 47 Tex. Cr. R. 444, 83 S. W. 1128; Coleman v. State, 49 Tex. Cr. R. 357, 91 S. W. 783; Sanders v. State, 83 S. W. 712; Bateson v. State, 46 Tex. Cr. R. 46, 80 S. W. 88; Coleman v. State, 25 S. W. 772; Barstado v. State, 48 Tex. Cr. R. 255, 87 S. W. 344; McGrew v. State, 49 S. W. 228; Winters v. State, 51 S. W. 1110; Gaines v. State, 58 Tex. Cr. R. 631, 127 S. W. 181.

Appellant apparently concedes that if the issue of provoking the difficulty is in the case, and should have been submitted to the jury, the court correctly presented the law and, under what circumstances he would be guilty of murder, but contends he incorrectly presented the law as to the circumstances under which he would be guilty of manslaughter, and when his right of self-defense would not be abridged; that the two paragraphs are conflicting, being based upon virtually the same state of facts. He contends that in paragraph 17 of the charge, under the given state of facts, the court instructs the jury appellant would be guilty of manslaughter, while in paragraph 18 he instructs the jury he should be acquitted; that under such circumstances the charge is confusing and misleading, and therefore erroneous. We do not think the two paragraphs of the charge subject to such construction. In paragraph 17, in instructing the jury as to when appellant would be guilty of manslaughter, if he intentionally provoked the difficulty, the court began the paragraph with the following language:

“If you find from the evidence that on the occasion of the homicide the defendant, by words and acts intended by him, and reasonably calculated to provoke a contest or difficulty with the deceased, did provoke the deceased to assault him,” etc.

—he would be guilty of manslaughter, while in paragraph 18 he instructed the jury:

“If you find from the evidence that the defendant did not, on the occasion in question, employ words or conduct intended by him, nor reasonably calculated, to provoke a difficulty with the deceased, or if you have a reasonable doubt as to whether he did so, or if you find that the defendant on said occasion did employ such words or conduct toward the deceased, but if you find that he did not intend thereby to provoke the deceased into a contest or difficulty in which he (defendant) intended to inflict injury upon Mm, or if you have a reasonable doubt as to -whether the defendant did so, then in either event the defendant’s right of self-defense, if any, would not be abridged or out off by his use of such words or conduct towards deceased, if any; and, if you find that the defendant in killing the deceased acted in Ms self-defense under the law of justifiable homicide as herein-before given you in charge, or if you have a reasonable doubt as to whether he did so, you will acquit the defendant.”

It will be noticed that in paragraph 17 the court requires the jury to find that appellant hy his words, acts, and conduot inr tended to provoleé a difficulty, before the jury would be authorized to find' him guilty of manslaughter. The charge, instead of being conflicting, correctly draws the line of demarcation as to when one would be guilty of manslaughter and when one would be justifiable in a ease where the issue of provoking a difficulty is in the case. If he did not provoke the difficulty, the facts would show Mm to be justifiable in his acts, and he should be acquitted. If he intentionally did acts which he lenew would bring on a difficulty, under the same state of facts, he would be guilty of manslaughter. This, instead of being conflicting, we think the charge makes plain, and is a correct enunciation of the law. Mr. Branch, in Ms work on Criminal Law, correctly states the rule, citing the authorities:

“If defendant provoked the difficulty with no intent to kill the deceased, or to inflict serious bodily injury upon him, and thereby brought about the necessity of killing the deceased to save his own life, or to prevent serious bodily injury being inflicted upon him by deceased, it would be manslaughter. Jones v. State, 17 Tex. App. 611; Thuston v. State, 21 Tex. App. 248, 17 S. W. 474; Carter v. State, 37 Tex. Cr. R. 406, 35 S. W. 378; Young v. State, 41 Tex. Cr. R. 446, 55 S. W. 331; Beard v. State, 47 Tex. Cr. R. 50, 81 S. W. 33 [122 Am. St. Bep. 672]; Lahue v. State, 51 Tex. Cr. R. 163, 101 S. W. 1008; Keeton v. State [59 Tex. Cr. R. 316] 128 S. W. 413; Green v. State, 12 Tex. App. 449; Cahn v. State, 27 Tex. App. 738, 11 S. W. 723; Bice v. State, 55 Tex. Cr. R. 533, 117 S. W. 163; Carter v. State, 28 Tex. App. 355, 13 S. W. 147.
“If defendant provoked the difficulty with no intent to kill, the killing in self-defense would be manslaughter. Casey v. State, 50 Tex. Cr. R. 392, 97 S. W. 496; Parnell v. State, 50 Tex. Cr. R. 425, 98 S. W. 269; Sanders v. State, 50 Tex. Cr. R. 430, 97 S. W. 1046; Tollett v. State, 55 S. W. 575; Pedro v. State, 48 Tex. Cr. R. 407, 88 S. W. 233; Brownlee v. State, 48 Tex. Cr. R. 412, 87 S. W. 1153; White v. State, 23 Tex. App. 164, 3 S. W. 710; King v. State, 13 Tex. App. 284; Cunningham v. State, 17 Tex. App. 95; Varnell v. State, 26 Tex. App. 67, 9 S. W. 65; Arrellano v. State, 24 Tex. App. 43, 5 S. W. 526.”

The next contention appellant urges most strenuously is that the court erred in permitting the state, on cross-examination of appellant’s wife, to ask her if on the day of the homicide and shortly thereafter she did not tell Isom Vickery:

“Isom, Ira killed your papa, and he killed him because he sued him. I done everything I could to keep him from doing it”

—and when she denied making this statement, in permitting Isom Vickery and his wife to testify that Mrs. McDougal did so state to them. In approving the bill the court states, and his qualification is supported by the-statement of facts:

“Upon the trial of tMs case defendant introduced his wife as a witness. On direct examination she testified, substantially, that she witnessed the killing of deceased by defendant and heard and saw what transpired between them on that occasion; that during a period of several minutes next before the killing the deceased, holding an open knife in his hand, and standing on the gallery of his store (while defendant was on the ground at different distances from the gallery), violently cursed and abused defendant, threatened to kill him, started into the store after a gun (at which time defendant caused Mm to desist from doing so by pointing his gun at Mm and telling not to go into the house and get his gun), and then called defendant a ‘God damn black son of .a bitch’ and started toward defendant with the knife ‘just like he was going to jump on him,’ and that then and because of this defendant shot and killed deceased. On cross-examination she testified substantially: Tha,t just before the killing deceased said to defendant: ‘You ain’t got nerve enough-to shoot me. I will kill you, you God damn black son of a bitch’ — and that defendant ‘then loaded his gun.’ That then defendant said to-deceased, ‘Cousin Jimmy, there ain’t any use in our having any trouble; come on out here and settle with my wife if you can’t settle with me.’ That then the deceased started toward defendant with an open knife in his hand, cursed him, called him a ‘God damn black son of a bitch,’ and said T will cut your God damn throat,’ and then started to the defendant with the open knife in Ms (deceased’s) hand, and that then and because of this the defendant shot and killed the deceased. Mrs. McDougal further testified on cross-examination that during the altercation, and a few minutes before the shooting, defendant came to his wagon (in which witness was sitting), situated near the place of' the homicide, and got from the wagon his shotgun and a loaded shell; that witness did not try to keep him from getting the gun or the shell, and did not ask defendant to desist from shooting deceased.
“Mrs. McDougal further testified on cross-examination that about half an hour after the killing she started to her home, about four miles distant, and traveled all the way in a public road, riding in a wagon with her son. She was then asked on cross-examination whether, while going home, she met Isom Vickery and his wife in the road, traveling in a vehicle, to which question she answered that she did not remember. She was then further asked on cross-examination whether, upon meeting Isom Vickery and his wife in the road while she was going home, Isom Vickery asked her who killed his father, and whether she then replied to him by saying: ‘Isom, Ira killed your papa; he shot Mm because he sued Mm’ — to which question she answered, no, that she did not remember making any such statement to Isom Vickery. In rebuttal of Mrs. McDougal’s said testimony Isom Vickery and also his wife were permitted to and did testify, over defendant’s objection as. shown in the bill, that they, traveling in a vehicle, met Mrs. McDougal, traveling in a wagon and going home, soon after the killing, and that Mrs. McDougal, in answer to Isom Vick-ery’s question, then said to him, ‘Isom, Ira killed your papa, and he killed him because he sued him, and I done everything I could to keep him from doing it.’ This testimony of Isom Vickery and his wife was deemed admissible as tending to contradict and impeach the aforesaid testimony of Mrs. McDougal.”

Appellant contends that the state is not entitled to go into new matter on the cross-examination of the wife; that she can be-cross-examined only as to such mattérs as naturally spring out of and appertain to her direct examination; that she cannot be cross-examined in a manner to get her opinion of defendant’s guilt and what caused him to kill the deceased, and that her conclusions and opinion as to his guilt are inadmissible, and he cites a great many authorities in support of such contentions, but as we agree that the propositions of law stated by him are correct, we see no necessity to discuss them. In his brief he quotes only from Hobbs v. State, 58 Tex. Cr. R. 71, 112 S. W. 308. We agree to the rule of law as stated in that case, and in it it is held:

“The cross-examination must be confined to the matter elicited by the direct examination. This is the settled rule. The state could 'have examined Mrs. Bluman fully as to the trunks, their contents, when they were placed in the store, etc.; and, if she had made other statements regarding these things, this could have been shown."

This is all the state was permitted to show 'in1 this instance — that Mrs. MeDougal had made statements to Isom Vickery and his wife which directly contradicted the testimony she gave on the trial at the instance of appellant. The authorities are collated in Johnson v. State, 72 Tex. Cr. R. 387, 162 S. W. 514; Taylor v. State, 74 Tex. Cr. R. 3, 167 S. W. 61; Roberts v. State, 74 Tex. Cr. R. 150, 168 S. W. 113. The court in his charge properly limited this testimony, instructing the jury:

“If you shall find that the wife of the defendant, shortly after the killing, made the statement testified by Isom Vickery and Mrs. Isom Vickery, or either of them, to the effect that the defendant killed the deceased because of a suit, then such statement, if any, cannot be considered by the jury as testimony against the defendant, but it can be considered by the jury only in so far as it may tend to affect the • credibility of the defendant’s wife as a witness and the weight to be given her testimony, if such statement would tend to affect her credibility or the weight of her testimony and it cannot be considered for any other purpose.”

The defendant’s wife, when be places her on the stand as a witness, may be impeached by showing that she had made contradictory statements the same as any other witness, as to matters she testifies to on direct examination at his instance.

The next matter presented in the brief is that the court erred in permitting a number of witnesses to testify that they had known deceased a number of years intimately, and that they had never known him to curse, and had never heard him use the words “son of a bitch.” All the witnesses testified that when appellant went up to the store of deceased some one cursed, and some one called the other a son of a bitch, two or three different times during the altercation. The state’s witnesses say it was appellant doing this cursing; the defendant and his witnesses say it was deceased cursing appellant. A sharp issue is drawn by this conflicting testimony. Appellant also testified that deceased had cursed him and called him a s-n of a b-h, when on the way to the depot, when no one else was present. Would the fact that deceased’s intimate acquaintances, who had - known him for years, testify that deceased was not a man who cursed, and was not a man who used the epithets of the character and kind used on this occasion, be of any aid to the jury in determining who was cursing on that occasion? Appellant attacked the reputation of deceased as a peaceable, law-abiding citizen. Appellant himself testified to facts tending to show deceased was a man of bad reputation and had engaged in many fights, and said deceased had cursed and abused him at a time when no one else was present. Under the circumstances we think it was permissible for the state to show, by the intimate associates of deceased, who had known him for many years, that he was not a man who cursed, and they had never heard him use an oath. Appellant cites the cases of Bullock v. State, 73 Tex. Cr. R. 419, 165 S. W. 200, Melton v. State, 47 Tex. Cr. R. 451, 83 S. W, 822, Gregory v. State, 50 Tex. Cr. R. 73, 94 S. W. 1041, and Keith v. State, 50 Tex. Or. R. 63, 94 S. W. 1044, all of which hold that when the testimony of the defendant shows a specific state of facts, evidence of general reputation cannot be introduced to rebut such evidence. In the cases of Everett v. State, 24 S. W. 506, and Martin v. State, 44 Tex. Cr. R. 279, 70 S. W. 974, it is held that a deceased’s general reputation in a certain state of case, even though not directly attacked, may be proven when necessary to rebut some testimony of defendant in that particular respect. But it appears those cases were overruled in Melton v. State, 47 Tex. Cr. R. 451, 83 S. W. 822. But the question here presented is not the same as presented in those cases. No question was asked of any of the witnesses as to deceased’s general reputation, but they were asked as to specific facts within their personal knowledge — not what they had heard, nor general impression in the community. They were asked as to their acquaintance, their association with deceased, and then asked if they had ever heard him curse. This was testimony as to facts within their knowledge, and while, perhaps, it would not have much weight on the issue as to whether deceased swore and used the epithets testified to on this occasion, yet it would have some bearing, and we think, under the circumstances in this case, the testimony was admissible. Wharton on Homicide, § 273; Bearden v. State, 47 Tex. Cr. R. 271, 83 S. W. 809.

As to the charge on threats and the law applicable thereto, placing the burden on the defendant to show that threats had been made, the facts in this case call for no such’ charge. There is no testimony that deceased, prior to this difficulty, had ever made any threats, nor did appellant claim that he had been informed that deceased had threatened his life. The only threats there is any evidence of are the threats appellant says deceased made in the wordy altercation immediately preceding the fatal shooting. Under such circumstances no charge on threats was called for or required. It has always been the rule in this court that where there is no evidence of antecedent threats, it is not necessary to charge on threats made at the time of and during the fatal difficulty. Armstrong v. State, 47 Tex. Cr. R. 510, 84 S. W. 827; Dobbs v. State, 54 Tex. Cr. R. 552, 113 S. W. 923; Davis v. State, 52 Tex. Cr. R. 149, 106 S: W. 144. But a charge on threats was given presenting the issues more favorable to appellant than he was entitled to. And inasmuch as there is no evidence of communicated threats, and the only evidence of threats is the threats testified to by appellant as being made by deceased during th'e difficulty, it was not erroneous for the court to instruct the jury, if such threats were made, etc. If there was evidence of communicated threats, then such a charge would be erroneous, but where the only evidence of threats is in regard to threats testified to by appellant as being made direct to him, such a charge presents no error.

While there are many other questions presented in the motion for a new trial, yet the above are all the questions presented by appellant’s counsel in the brief filed, and in the able oral argument in this court. We have carefully read each bill of exceptions in thé record, and considered each ground in the motion for a new trial, and, being of the opinion that none of them present error, we have discussed only those presented by appellant in the brief filed, while considering all of .them.

The judgment is affirmed.

On Motion for liehearing.

Appellant has filed a motion for rehearing herein, wherein he presents but two propositions. His contention that the court erred in permitting the cross-examination of the wife, as stated in the original opinion, cannot be sustained. The authorities he cites are not in point. The witnesses in those cases had not testified as to the facts immediately attendant upon the homicide, the way it arose and •occurred, as did appellant’s wife in this case, and, she having so testified, statements made by her contradicting the testimony she gave on the trial could be proven. Had she not been called to testify to these facts, then appellant’s contention would be sound, and the statements she made to Isom “Vickery would not be admissible. But when she is called by appellant and he undertakes to prove by her that deceased was assaulting him with an open knife drawn, when he shot, she can be impeached on that testimony the same as any other witness by showing contradictory statements, made on the day of the homicide.

The next contention is that we were in error in holding that there was no error in the charge on provoking the difficulty in presenting when he would be guilty of manslaughter, and we must frankly admit that one portion of said paragraph escaped our attention until it was specifically called to the matter in the motion for rehearing. This paragraph as applicable to manslaughter reads:

“If you find from the evidence beyond a reasonable doubt that on the occasion of the homicide the defendant, by words or acts intended by him and reasonably calculated to provoke a contest or difficulty with the deceased, did provoke the deceased to assault him or to do some act evidencing an immediate intention to assault him with a knife, and that in a contest or difficulty thus brought about, if it was, the defendant shot and killed the deceased with a gun, and if you further so find that the defendant, when he provoked the deceased in such manner, if he did, intended then and thereby to provoke the deceased to assault him or to do some act evidencing an immediate intention to assault him, and that the defendant then further intended to kill the deceased or to inflict upon him serious bodily injury in the contest or difficulty thus provoked, if you find it was, ⅜ ⅜ * or ij yOU jlave a reasonable doubt as to whether the defendant intended to provoke the deceased into a contest or difficulty, or as to whether he employed words or acts toward deceased that were reasonably calculated to provoke a difficulty, or if you have a reasonable doubt as to whether the defendant intended to kill. the_ deceased or to inflict upon him serious bodily injury in any contest or difficulty provoked by defendant, if you find it was, then the defendant, while he cannot claim that he did the killing in his self-defense, would be guilty of manslaughter.”

The words we have italicized above are the language complained of. In some way, in reading the first sentence italicized, we incorrectly construed it as stating—

“or if you have a reasonable doubt as to whether the defendant intended to provoke the deceased into a contest or difficulty with the intention of hilling him, he would be guilty of manslaughter.”

But upon a careful perusal of the paragraph, we find it instructs the jury, if they have a reasonable doubt if appellant intended by his words and conduct to provoke the difficulty, his right of self-defense would be abridged, or if the jury had a reasonable doubt as to whether the appellant employed words or acts toward deceased that were reasonably calculated to provoke a difficulty, his right of self-defense would be abridged. This is not the law, and we were in error in holding that this paragraph of the charge was a correct exposition of the law as applicable to manslaughter. The charge as a whole, with the exception of the part italicized, is an admirable presentation of the law. If the jury under the facts had a reasonable doubt that appellant intended by his words and conduct to provoke a difficulty, or if the jury had a reasonable doubt that appellant employed words or acts toward deceased that were reasonably calculated to provoke a difficulty, his right of self-defense would not be abridged, and the jury should have been so instructed, instead of being told that Tinder such circumstances he would be guilty oí manslaughter. On account of this error in the charge, the motion for a rehearing is granted, the affirmance is set aside, and the judgment is reversed and the cause remanded.

The law is, if one provoke a difficulty with no intent to kill, or to inflict serious bodily injury, and by his acts and conduct brought about the necessity of killing the deceased to save his own life, the person slaying his adversary would be guilty of manslaughter. Bice v. State, 55 Tex. Cr. R. 533, 117 S. W. 163; Lahue v. State, 51 Tex. Cr. R. 163, 101 S. W. 1008; Beard v. State, 47 Tex. Cr. R. 50, 81 S. W. 33, 122 Am. St. Rep. 672; Carter v. State, 37 Tex. Cr. R. 406, 35 S. W. 378; Thuston v. State, 21 Tex. App. 248, 17 S. W. 474. Judge Hurt, in the latter case, aptly states the law as applicable to the facts in this case. The state’s theory is that appellant went to the store of deceased,' and by his acts and conduct brought on the difficulty. But even according to the state’s evidence, appellant at this time was unarmed; so it cannot be reasonably presumed he at that time intended to kill or inflict serious bodily injury, but intended no more than an assault and battery, if he intended to provoke a difficulty. He says deceased by his conduct led him to believe he was going to enter the store, and arm himself, and thinking his life was in danger, he armed himself in defense of his person; that when he did so, deceased advanced on him with an open knife, and he, thinking his life was in danger, shot and killed deceased. This theory of appellant, raised by the testimony, was not presented in the charge, and if it had been,.we cannot say the jury would not have found it true, and found him guilty of manslaughter instead of murder. Under the court’s charge as given, the jury was only authorized to acquit or find appellant guilty of manslaughter, in the event they found he did not provoke the difficulty; if they found he provoked the difficulty, regardless of his intent in doing so, they were instructed by the court they must find him guilty of murder, and this they did, evidencing they believed appellant went to the store to provoke a difficulty. They were given no opportunity to pass on whether or not appellant had the intent to kill or inflict serious bodily injury in doing so, or Whether he intended a mere fist fight or an ordinary assault at the time he committed the acts which led the jury to believe he intended to provoke deceased into a difficulty. The record is such that this issue should have been properly submitted to the jury, in order that they might determine whether or not appellant was guilty of murder or manslaughter. We might have an opinion on the facts, but this is the province of the jury under our law, under proper instructions.
      (g^jIPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <©=For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WHITE v. STATE.
    (No. 4035.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    1. Criminal Law @=>1092(14) — Appeal—Exceptions — 'V ERIPICATIO N — N ECESSIT Y.
    Exceptions to the court’s charge in a criminal case should be verified in some way by the court.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 2836; Dec. Dig. @=>1092(14).]'
    2. Criminal Law @=>1090(1) — Appeal—Bills-op Exception — Necessity.
    Where the record contains no bills of exception, no ruling of the trial court is presented for review.
    [Ed. Note. — Eor other cases, see Criminal: Law, Cent. Dig. §§ 2653, 2805-2807, 2825-2827, 3204; Dee. Dig. @=>1090(1).]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Dink White was convicted of assault with intent to murder, and he appeals.
    Judgment affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the-State.
   DAVIDSON, J.

Appellant was convicted of assault to murder; his punishment being assessed at 15 years’ confinement in the penitentiary.

The record is before us without a statement of facts or bills of exception. There were exceptions to the court’s charge, but they are in no way verified by the court. They were filed on the 29th of October. These exceptions should have in some way been verified by the court. But in any event the exceptions to the charge and the refusal to give special charges requested cannot be intelligently revised without the statement of facts. The court’s charge may have fairly submitted the issues raised by the testimony. We are of opinion there is no reversible error shown. There are no bills of exception in the record; therefore from that viewpoint there is nothing that can be revised.

As presented by the record, the judgment will be affirmed.