with him, if their object and purpose was not to engage in what might be termed as gambling for money-that being the main purpose-and violate no law. The statute was to protect the sanctity of the home, and let each member of society seek pleasure and enjoyment in this manner if he saw proper in his own home. But if a man were to throw the doors of his home open to any and all who desired to enter therein for the purpose of gambling with cards, and it was so known, it would not be the number of times that cards were played that would make it a common resort, but the fact that he had opened his doors for any and all persons to gamble with cards which would evidence a violation of the law. Of course, evidence that this was continuously or frequently done would add additional strength to the evidence, but under the exemption in the statute no person is authorized to open his doors to the public at large indiscriminately for the purpose of gambling with cards. A man, his friends, and invited guests may engage in social games of cards in his home and violate no law, but no man can make a gambling house out of his residence and escape the penalty of the law, and each case must stand upon the facts and circumstances in that case. In this case these young gentlemen go to the house of Mr. Cantrell, when they know that all members of the family are absent from home, and apparently go there because of this fact. Mr. Cantrell says he gave them permission to go there and engage in a game of dominoes, but there is not the slightest intimation in the record that he invited. them, or gave them permission to go to his home and for the time being. turn it into a gambling room and engage in playing cards, betting money thereon. They sought nor asked no such permission, and the fact they knew they had no permission to do so is evidenced by the fact that they closed the doors and spread quilts over the windows and other openings that they might not be seen while engaged in this unlawful gambling. Having obtained permission to enter this house by false pretenses, it was the same as though they had no permission and they became mere naked trespassers. It was not the intent of the Legislature to exempt such game from the provisions of the law, and such construction would do violence to the whole spirit and intent of the statute. They going to this house when they knew Mr. and Mrs. Cantrell were absent from home, and without permission, and without the knowledge of Mr. and Mrs. Cantrell, to deliberately engage in gambling with cards, the persons who did so would violate the law, for such house at such time and under the circumstances herein shown would not be a private residence occupied by a family within the spirit and intent of the law. And as the evidence-circumstantially at least-amply sustains a finding that at least Farley and another member of the party were engaged in gambling with cards on this occasion, and that appellant at least knowingly went into and remained in this place while such gambling took place, we will not disturb the verdict. If either of the young men had resided at this house and invited the others to engage in the game with him, we might arrive at a different conclusion, but none of them lived at this house, and had selected a time to go there and

engage in this game when they knew that the occupants of the house were absent and it was being occupied by no family at that time. For further discussion see Stallings v. State, decided at this term of court.

The only other contention in the record is that State's counsel referred to the failure of defendant to testify in his address to the jury, when he said, "that the testimony of the witness Cantrell was all the testimony that the defendant had brought to contradict the State." This is a mere recitation of a fact, and it would have to be a strained construction that would make it refer to the failure of the defendants to testify, for Mrs. Cantrell and perhaps a number of other persons could have been called who could have testified to the same facts as did Mr. Cantrell, if true. Again it is contended that when he said, "Surely these defendants were not up there perpetrating a joke on the officers. Up there housed in as they were with a quilt over the window and the door latched-surely they were not there to perpetrate a joke on the officers. And, gentlemen, they brought no evidence that it was a joke." Doubtless these remarks were made in reply to argument of counsel for the defense, but if not it is not such a direct or indirect reference to the failure of defendants to testify as would necessitate a reversal of the case. If they were in fact perpetrating a joke there might be a number of ways this could be shown without either of them being called to testify. The record does not exclude such fact.

After careful consideration we have come to the conclusion that the judgment should be affirmed, and it is accordingly so ordered.

Affirmed.

ED YELTON V. THE STATE.

No. 3246. Decided October 21, 1914.

1.—Aggravated Assault-Indictment-Simple Assault-Intent to Injure. It is not necessary to allege in the indictment or information and complaint the intent to injure, and one charged with an aggravated assault may be convicted of a simple assault if the facts justify such finding. Following Davis v. State, 20 Texas Crim. App., 302.

2. Same-Intent to Injure-Sufficiency of the Evidence.

Where upon trial of aggravated assault, the evidence showed that defendant called prosecuting witness to him, touched him on the shoulder and told him to go inside and apologize to defendant's wife, and prosecuting witness attempted to jerk away from him, when defendant took hold of his coat and pulled out his pocketknife which was already open, and the witness did as he was told, there was no error in the court's refusal of a special instruction to acquit the defendant if the evidence raised the issue that there was no intent to injure, as this issue was not raised by the evidence.

3. Same Assault and Battery-Definition Statutes Construed.

Under article 1013, Penal Code, the use of any dangerous weapon or the semblance thereof in an angry or threatening manner with intent to alarm another and under circumstances calculated to effect that object comes within the meaning of an assault, and when the evidence showed that defendant's purpose in pulling an open knife was to alarm prosecuting witness to compel com

pliance with his command, the question of accident or innocent intent is not involved. Following Bell v. State, 29 Texas, 492.

4. Same-Charge of Court-Theory of Defense.

Where, upon trial of aggravated assault, the court not only submitted a proper charge, but also submitted a special instruction on defendant's theory of defense, there was no reversible error.

5.-Same-Jury and Jury Law-Bill of Exceptions.

Where, upon trial of aggravated assault, counsel for defendant desired to ask each juryman if he was a member of the Masonic Lodge, and if the fact that prosecuting witness was a member of the Masonic Lodge influenced him in arriving at a verdict, and only the questions, and not the answers thereto, are stated in the bill of exceptions, the same can not be reviewed on appeal.

6. Same-Continuance-Want of Diligence.

Where the application for continuance showed a want of diligence and that the testimony contradicting the State's witness was testified to by defendant himself, there was no error in overruling the motion.

Appeal from the County Court of Donley. Tried below before the Hon. J. C. Killough.

Appeal from a conviction of simple assault; penalty, a fine of $5. The opinion states the case.

E. A. Simpson and King & Richey, for appellant.-On question of simple assault: Ware v. State, 24 Texas Crim. App., 521; Sowther v. State, 18 id., 352; Johnson v. State, 43 Texas, 576; Lee v. State, 34 Texas Crim. Rep., 519; Decker v. State, 58 Texas Crim. Rep., 159, 124 S. W. Rep., 912.

.

On question of intent to injure: McGill v. State, 71 Texas Crim. Rep., 443, 160 S. W. Rep., 353; Perkins v. State, 62 Texas Crim. Rep., 508, 138 S. W. Rep., 133; Greer v. State, 106 S. W. Rep., 359.

On question of insufficiency of the indictment to convict for simple assault: Grayson v. State, 37 Texas, 228; West v. State, 10 id., 553; Hill v. State, 34 id., 624.

On question of continuance: Rushing v. State, 62 Texas Crim. Rep., 309, 137 S. W. Rep., 372.

C. E. Lane, Assistant Attorney General, and W. T. Link, County Attorney, for appellant.-On question of intent to injure: McKay v. State, 44 Texas, 43; Norton v. State, 14 id., 387; Hill v. State, 38 S. W. Rep., 987; Griffin v. State, 53 S. W. Rep., 848; Bristoe v. State, 51 S. W. Rep., 393.

On question of charge of court: Brent v. State, 57 Texas Crim. Rep., 411, 123 S. W. Rep., 593.

On question of sufficiency of indictment: Cromwell y. State, 60 Texas Crim. Rep., 183, 131 S. W. Rep., 595; Hartman v. State, 41 Texas, 562.

HARPER, JUDGE.-Appellant was indicted, charged with an aggra

vated assault, the indictment reading: "On or about December 1, 1913, Ed Yelton did unlawfully with a pocketknife, the same being then and there a deadly weapon, commit an aggravated assault in and upon. J. M. Clark."

Appellant contends that this indictment does not embrace a charge of simple assault, and the court erred in submitting that issue, and the verdict can not be sustained, because the indictment does not charge that the assault was made with "intent to injure." It is not necessary to allege in the indictment or information and complaint the intent to injure, and it has been held by this court that one charged with an aggravated assault may be convicted of a simple assault if the facts justify such finding. Davis v. State, 20 Texas Crim. App., 302.

The State's witness, J. M. Clark, testified: "My name is J. M. Clark. I live at Hedley, Texas, in Donley County. I lived there during the months of December and November, 1913. I know the defendant Ed Yelton and knew him during the year 1913. He also lived at Hedley, Donley County, Texas. I remember the occasion on which he assaulted me. It was some time during the month of December, 1913, I don't remember the exact date. On the morning on which he assaulted me I had come downtown early to go to work in my tailor shop on the west side of the main street of Hedley. I was up about the north end of the main street, standing in front of Moreman's store, talking to someone. I heard someone call 'Jim.' I looked up and saw Ed Yelton standing about ten feet in front of the porch of his barber shop, which was directly across the main street of Hedley and a little south of me. When I looked up the defendant, Ed Yelton, called to me and said, 'Jim, come here a minute, I want to talk to you.' I walked across the street to where he was, and when I got up close to him he reached up and tapped me on the shoulder and said, Jim, you have got to go in and apologize to my wife.' I pulled back from him and said, 'Ed, what does this mean? He then grabbed me by the coat and jerked out an open knife and threw the knife with his right hand up in about ten inches of my throat and said, 'You come on in here and apologize to my wife or I'll cut your damned head off.' Of course I did not want my head cut off, so I went on in. As we walked across the street from where we stood into his shop he held me by the lapel of the coat with his left hand and held the knife up close to my throat with his right hand. The knife was open. I went into his house because I was scared of his knife and he had threatened to cut my head off and I did not want that done."

Appellant testified in his own behalf that the night before the alleged assault he had been informed by his wife that Clark had laughed and sneered at her; that he could not sleep and it preyed upon his mind. The next morning he looked out of his shop, saw Clark on the opposite side of the street, and in his own language he says: "I looked out of the front door and saw Clark standing on the sidewalk across the street, and I made up my mind I would go over and ask him to come in and apologize to my wife and stop his way of doing before it led to serious

trouble. I picked up an old dirty hat I had, put it on and stepped out of the front door and off the walk, and started over to where Clark was. Just as I stepped off of the walk I thought, 'now Clark is a bigger man than I am,' and I kinder turned my back to him, and pulled my pocketknife out of my pocket and opened it and put it back in my pocket. My only purpose in opening the knife was to defend myself in case Clark attacked me when I asked him to come in and apologize to my wife. I called to Clark and he walked out into the street to meet me, and we met about middle ways of the street. My knife was in my pocket open, and I touched Clark on the shoulder with my hand and said, 'Jim, I will have to ask you to go in and apologize to my wife.' When I said this he jerked back from me and said, 'What does this mean?" When he did this I thought he was going to attack me, and I took hold of the lapel of his coat with my left hand and pulled my knife out of my pocket with my right hand and held it down by my side with my finger over the point of the blade and said to him, 'You come on.'

. No, I never threw my knife up close to his throat and told him I would cut his damned head off if he didn't come on in and apologize, never got my knife where he could see it. I just held it down by my side in my hand with my finger over the blade. My only purpose in going out into the street and speaking to Mr. Clark was to request him to apologize to my wife and stop his insulting ways towards her so as to avoid trouble. I had absolutely no intentions of injuring Mr. Clark in any manner that morning unless he first attacked me. My only purpose in carrying my knife out there was to defend myself in case he attacked me when I asked him to apologize. I never tried to strike him or injure him in any way. I just touched him on the shoulder and told him that I would have to ask him to come in and apologize and when he pulled back I took hold of the lapel of his coat, pulled out my knife, and held it as I have already detailed and told him to come on."

On cross-examination he said he did not like Clark, but that he was only intending to use the knife if it was necessary.

Appellant cites authorities where it is held that if the evidence raises the issue that there was no intent to injure, that issue must be submitted to the jury, and he asked several special charges on that theory. We do not think the issue was raised by appellant's testimony, and to that we must look alone in passing on whether or not the issue was raised. His object and purpose, according to his testimony, was to demand that Clark apologize to his wife, and to see that he did it. No one can question under this testimony what the result would have been had Clark refused to apologize. When he says Clark jerked back and asked, "What does this mean," why did he pull out the knife he had already opened and catch Clark by the lapel of his coat? Under our former laws it was held that injury to the feelings alone, unaccompanied by violence, could not constitute an assault and battery, but that such injury was pertinent only as an aggravation of the legal injury. Spears v. State, 2 Texas Crim. App., 244; Jarnigan v. State, 6 Texas Crim. App., 465. But as said in Kief v. State, 10 Texas Crim. App., 286,