you blame daddy Hope for Lou (appellant's wife) and Don being up here; that Hope, deceased, was not to blame, and that the writer of the letter (appellant's brother-in-law) was solely to blame." This witness further testified that after appellant had read this letter, and ate his dinner, appellant left his (witness') home carrying a Winchester rifle with him, going in the direction of deceased's home. Before a great length of time he saw appellant; that appellant had then been back to his (witness') house and changed his clothes and was going towards town, and appellant said, "Well, it is all over," and witness asked him, "What's all over?" when appellant replied, "I shot him,” and upon being asked if he had killed Hope, replied, "I don't know." He was then asked what, if anything, was said at the time, and appellant replied, "I asked him where Lou and Don was and he claimed deceased replied, Right where I am going to keep them-and you keep off my place.' Witness replied to this that he had heard it and he had heard someone say that appellant had shot deceased off the binder, when appellant replied, "It's a damned lie-nobody never seen it." Appellant also said in this conversation that at the time deceased made the remark above attributed to him, he, deceased, shook the finger of his left hand at him, and dropped his right hand behind him.

In the above statement we have not related nor referred to the theory of the State as made by the testimony, but on the issue of whether or not the court erred in failing to submit the issue of manslaughter, we have taken the evidence in its most favorable light to appellant. The record discloses beyond dispute that appellant and his wife had separated some two years prior to this time; there is nothing to indicate that deceased was the cause of the separation, and the record discloses that deceased and appellant had met many times after the separation took place. But it is contended, as appellant puts it, when deceased "shipped appellant's wife and child out of the country, this was a new provocation." The testimony of Mr. McClurkan, brought out by defendant, shows that from the time deceased's wife left to go to Oklahoma. and the killing, that appellant and deceased met in the town of Denton, and had a conversation about the wife and child going away; that appellant was apparently excited about it, and deceased was explaining and trying to pacify appellant. So it was certainly not the first meeting after his wife and child had been "shipped out of the country," as centended by appellant, but which the whole record discloses is not the correct way to put it, for it shows that she had merely gone on a visit to a sister, a trip for which Mr. Hope, deceased, was in no way responsible, he having merely carried her to the train in broad daylight, a fact of which appellant was fully aware, as shown by the testimony of Mr. Childs and others and is in no way disputed in the record.

But it may be contended, even if he did know about his wife going to Oklahoma, and had met Mr. Hope in Denton and talked to him about it, this would not deprive him of his right to arm himself with a Winchester rifle, and go to Mr. Hope and inquire about where his wife and child had gone. Granted, if this had been his mission, and he did

not know where they had gone to; but the testimony of Mr. Childs shows that appellant had received a letter from his brother-in-law explaining to him that his wife was on a visit to her sister, and that (as he understood appellant blamed Mr. Hope with their taking the trip) daddy Hope, deceased, had nothing to do with them taking the trip-that he, appellant's brother-in-law, was responsible for it. Not only this, but the testimony of Mr. Childs and Mr. Black shows that appellant knew where his wife and child were and had known this fact for several days, and this testimony is in no way denied or disputed in the record. Again, under the rule of law stated in the Pharr case, 7 Texas Crim. App., 472, and other cases referred to in the opinion on the former appeal in this case, 71 Texas Crim. Rep., 532, 160 S. W. Rep., 465, the court instructed the jury: "When the confessions of a party charged with crime are introduced in evidence by the State, then the whole of the admissions or confessions are to be taken together, and the State is bound by them, unless they are shown by the evidence to be untrue, such admissions or confessions to be taken into consideration by the jury as evidence in connection with all other facts and circumstances of the case. So, in this connection you are told that if the State has not disproved the statement made by defendant to the witness Childs, etc., you will find the defendant not guilty." Thus it is seen the jury were required to find the statement made by appellant to Childs, that "he asked deceased where Lou and Don was" and deceased replied, "Where I am going to keep them, and you keep off this place," shaking his left hand at him, and putting his right hand behind him, was false and untrue before they would be authorized to convict appellant of any offense. And in addition to this gave a fair and full charge on self-defense as made by the testimony.

But did the evidence authorize the jury to find that this statement of appellant was false? In brief, the State's case is, that appellant was angry with the entire Hope family because his wife had quit him. Mr. Hope was in his field, cutting his wheat. Appellant received this letter from his brother-in-law telling him that Mr. Hope had nothing to do with Lou and Don going to Oklahoma on a visit, but in the letter appellant's brother-in-law used language towards appellant that Mr. Childs says made him angry. He takes his Winchester, leaves Childs' place, going in the direction of the Hope farm; he is seen by others going in this direction. At one corner of the wheat field the weeds were high, and in these weeds is a place where the weeds are mashed down as if someone had been hiding there; as the binder goes to make this turn (just thirty steps from this place of concealment) Mr. Hope is shot, the ball entering the right side, ranging up, going through him, the ball apparently passing through his heart. When found he had. fallen to one side of the binder seat, his feet being under the seat. Appellant is seen coming from this direction, and when he meets Mr. Childs, about a quarter of a mile from the place where the killing occurred, Mr. Childs says he did not appear to be the least excited;

Vol. 75 Crim.-23

that he appeared cool and calm. Thus making it appear that appellant, becoming angry at what his brother-in-law had said to him in the letter, he takes his Winchester and goes a quarter of a mile to where deceased is quietly working in his field, cutting his grain; appellant conceals himself in the weeds, and as Hope drives by he shoots him, and when he walks back is perfectly calm and collected. This not only authorized the jury to find that his explanation was untrue, but the record, as a whole, excludes the idea that the killing took place under the influence of sudden passion, aroused by anything done or said by Mr. Hope that would be cause, in law, to render the mind incapable of cool reflection. Manslaughter is a killing under a passion suddenly flaming up, and the act done before the person has time to reflect. No such state of case is even suggested by this record. Not only this but the evidence shows that several evenings before the killing appellant had been in pastures close to the Hope farm, with his Winchester, sitting down, apparently watching the Hope home as if to get a chance to kill someone.

As the issue of manslaughter was not raised by the testimony, the court's charge defining implied malice is in language frequently approved by this court in such a state of case. If manslaughter had been raised and submitted in the charge, there might be some merit in the contention.

Appellant's requested charges on self-defense, insanity and that the State must show the falsity of the statement of appellant, introduced by the State before a conviction would be authorized, were embodied in the court's charge; therefore, it was unnecessary to again give them as special instructions. The evidence did not call for a charge on circumstantial evidence, as the State introduced evidence showing that appellant admitted the killing of deceased. It is only in case where the cvidence is wholly circumstantial that the court is required to charge on circumstantial evidence. As hereinbefore stated, there were no exceptions reserved to the introduction of testimony, and as there is no error in the charge of the court, the judgment should be affirmed and it is so ordered.

The judgment is affirmed.

Affirmed.

CLATIE ALEXANDER V. THE STATE.

No. 3339. Decided November 25, 1914.

Carrying Pistol-Sufficiency of the Evidence-Intent.

Where, upon trial of unlawfully carrying a pistol, defendant claimed that she was greatly excited, etc., and that if she went out into the street with a pistol, she did so unconsciously, and the court submitted the defense of being on her own premises, etc., to the jury, there was no reversible error.

Appeal from the County Court of Ellis. Tried below before the Hon. J. C. Lumpkins.

Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100.

The opinion states the case.

W. H. Fears and Clyde Winn and Will Hancock, for appellant.-On question of innocent intent: Leonard v. State, 56 Texas Crim. Rep., 84, 119 S. W. Rep., 98; Miles v. State, 52 Texas Crim. Rep., 561, 108 S. W. Rep., 378; Huff v. State, 51 Texas Crim. Rep., 441, 102 S. W. Rep., 407; Schroeder v. State, 99 S. W. Rep., 1003; Cathey v. State, 5 S. W. Rep., 137; Fuller v. State, 58 Texas Crim. Rep., 449, 126 S. W. Rep., 569; Murphy v. State, 56 Texas Crim. Rep., 126, 119 S. W. Rep., 96.

C. E. Lane, Assistant Attorney General, for the State.

HARPER, JUDGE.-Appellant was prosecuted and convicted of the offense of unlawfully carrying a pistol.

The evidence offered in behalf of the State clearly shows that appellant had a pistol on her person in the streets of the city of Waxahachie. Appellant testified in her own behalf and admitted that on the occasion when she was arrested for carrying a pistol she went to her safe and got a pistol and went to the front door of her store. She says she was greatly excited and mentally disturbed, and if she went out in the streets with the pistol she did so unconsciously. However, Messrs. Carlisle and Hull state positively that she did have the pistol out in the street.

There were no exceptions reserved to the introduction of any testimony. The defense, that if she did not go off her premises she would not be guilty, was affirmatively submitted by the court, he giving the special charge requested on that issue. Appellant in her brief asks: "If you are in your own house and have a pistol in your pocket and the house catches fire and you forget about having the pistol and you rush out onto the sidewalk which bounds and adjoins your lot, would you violate the law against carrying a pistol? The chances are that you would involuntarily rush out of the house-would unconsciously carry the pistol onto the sidewalk. If you should be in your own yard with a pistol in your pocket, and an automobile came rushing down the street and you should see a little child in the street that was walking out in front of the automobile, and you should rush out of your front gate and onto the sidewalk and out into the street to rescue the child from danger, you forgetting for the instant about having the pistol in your pocket, would you be guilty of unlawfully carrying arms and thereby subject to a fine of $100 and costs or thirty days in jail and costs or a fine of $100 and thirty days in jail and costs? Would this make a criminal out of you? If you should be on your own lot with a pistol and should accidentally back off onto the sidewalk, would you be guilty of carrying a pistol? Or if you were on your own lot and near your own line, with a pistol, and should get overbalanced and

fall over onto the sidewalk, would you be guilty of carrying a pistol? Or if you are near your own line with a pistol and the wind should blow and overbalance you, or some person should shove you and you fell over on the sidewalk with the pistol, would you be guilty of violating the law against carrying a pistol?"

As there is no evidence that a wind was blowing that day, nor that her house caught on fire, nor that an automobile came running by, or that she accidentally fell off or backed off her lot, we do not feel called upon to answer the questions propounded. If there was anything of that character occurred, appellant ought to have some evidence of it in the record.

The judgment is affirmed.

'Affirmed.

S. WERTHEIMER V. THE STATE.

No. 3315. Decided November 25, 1914.

1.-Embezzlement-Statement of Facts.

Where the statement of facts was approved by counsel both for the State and for the defendant before reaching the trial judge, and the latter refused to consider the same because he was leaving the State on his vacation, and the appellant thereby lost his right to file his statement of facts within time without fault on his part or that of his counsel, the judgment must be reversed and the cause remanded. Following Parker v. State, 65 Texas Crim. Rep., 412, and other cases.

2.-Same-Filing Back.

The trial court has no authority to order a statement of facts filed back, and the clerk of the court is correct in not obeying the order.

Appeal from the Criminal District Court of Dallas. Tried below before the Hon. R. B. Seay.

Appeal from a conviction of embezzlement; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

W. W. Nelms and A. S. Baskett, for appellant.

C. E. Lane, Assistant Attorney General, for the State.-On question of filing statement of facts: Riojas v. State, 36 Texas Crim. Rep., 182.

DAVIDSON, JUDGE.-Appellant was convicted of embezzlement, his punishment being assessed at two years confinement in the penitentiary. The statement of facts was filed in the trial court on September 26, 1914, "as of July 27, 1914, by order of the court." The record shows that court adjourned on the 4th of July, entering an order allowing thirty days following a previous order for thirty days, in which to file statement of facts and bills of exception. The previous order reached to July 6th. This would have given appellant until August 6th in which to file his statement of facts and bills of exception. But con