not deem it of sufficient importance to reverse. No special charge was asked, and perhaps it was a legitimate argument. On cross-examination, appellant testified that the reason he did not report the shooting at him on Friday night before the homicide on Saturday evening was because he was afraid and excited, and he did not know when he would be shot. Objection was urged that a party who has been shot at is not required by the law to report that fact to officers; that it is irrelevant and immaterial, and calculated to prejudice him in the minds of the jury. How far it may be the duty of a party who has been assaulted, waylaid, and shot at to report to the officers is a matter that we do not propose to discuss here, and it is not necessary to discuss it. But the question was a proper one. It tended to affect the credibility of the witness, and his honest belief that he was actually shot at the night before. It was a fact for the jury to take into consideration in passing on those questions. In the motion for new trial, appellant sets up the misconduct of the jury. One of the jurors (Spurlock) testified that after the jury had retired there was something said about the former trial of appellant. One of the jurors asked how the other jury stood. Juror Zimmerman answered, "Eight to four," or "Ten to two," but that this had nothing to do with the case, and the jury could not consider it. This witness was not positive whether Zimmerman used the words "ten to two" or not, but he said some one did use the words "ten to two," and he understood that the ten to two jury hung on the question of either penalty or degree; that he understood further that these were all for conviction, but differed as to penalty. Up to this time this juror further says that they had disagreed as to the degree of the offense; that one of the jurors was for manslaughter. Zimmerman was sworn, and testified that he was a juror in this case, and that, after the jury had retired and taken a vote, some one asked "how the other jury stood, and [he] replied, 'Eight to four,' but that we could not consider that, as it had nothing to do with this case. There were three or four, or maybe five or six, jurors present when this happened." This was all that the witness said. He did not know how the jury stood as to conviction or acquittal. That he said nothing in regard to the former trial, except as to how they were divided. He himself said nothing about the jury standing ten to two. No such an expression was used. It was not used in his presence or at that particular time and place. It was held in Morrison's case, 39 Tex. Cr. R. 519, 47 S. W. 369, that the mere announcement in the jury room that defendant had been previously convicted, and his punishment assessed at 20 years in the penitentiary, would not constitute reversible error, unless some prejudice was shown to appellant. Moore's Case, 36 Tex. Cr. R. 88, 35 S. W. 668, is to the effect that, where the accused was on trial for robbery, where it was made a ground of the motion for new trial that the jury had received other testimony after their retirement, and it appeared that the newspaper containing an announcement that defendant was on trial for the robbery, giving a statement of the transaction, and that one of the defendants had already been tried and convicted, and the accused was under indictment for murder in one county, and other minor offenses, and the juror made an affidavit that he did not read the article until they had agreed upon defendant's guilt, and none of the other jurors had read it, so far as he knew, and that after reading it he agreed to a verdict of five years less than he had before fixed upon, and that the article did not influence his verdict, it was held that there was no prejudice, and the conviction was not disturbed. To the same effect is Williams v. State, 33 Tex. Cr. R. 128, 25 S. W. 629, 28 S. W. 958, 47 Am. St. Rep. 21, and Munos v. State, 34 Tex. Cr. R. 472, 31 S. W. 380; McDonald v. State, 15 Tex. App. 493. The statute only prohibits the allusion in the argument to a previous conviction of the appellant in the same case after new trial awarded. So it would seem that in cases like this, where there had not been a previous conviction for the same offense, it is a matter to be judged from all the environments of the action of the jury, and its probable effect upon their minds. There are only two jurors who testify in regard to the matter occurring in the jury room, and we do not believe it is shown that any injury resulted to him from their statements. The other jurors were present, but were not placed on the stand by either side. As presented, we are of opinion there is not such a showing as will require this court to reverse the judgment. The motion for new trial further shows that the district judge instructed each jury for the week during the term, inasmuch as some of the cases to be tried before them had been tried more than once, not to discuss the result of any previous trial; that this would be misconduct; that, if they were guilty of misconduct, not to make affidavits for lawyers in the case; that such affidavits were ex parte, and not to make them, but to tell it, if any such misconduct happened, and talk to the lawyers on both sides of the case about it freely, and then appear on the witness stand, where the court could protect them, and they would not get into any tangle about the matter, but not to make any affidavits. This was the statement of the judge under oath. The court qualifies this bill of exceptions by stating that the court gave defendant process for each of the 12 jurors, and set the motion for new trial for a certain day, that he might have all of them present, and that appellant did not see proper to put them on the stand. The court "The enjoined on the jurors not to make ex parte affidavits simply for their own protection, and not to deprive defendant of any right, as they were told, first, not to do wrong; and, second, if they did, not to conceal that fact, but tell it to counsel upon either side, and to swear truthfully about it before him (the judge) on the motion for new trial. Such is the bill as qualified. Subdivision 8 of article 817, Code Cr. Proc., is as follows: "Where through the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial, it shall be competent to prove such misconduct by the voluntary affidavit of the jurors, and the verdict may in like manner in such cases be sustained by such affidavit." Article 821, Code Cr. Proc., provides: state may take issue with the defendant upon the truth of the causes set forth on the motion for new trial, and in such case the judge shall hear evidence by affidavit or otherwise and determine the issue." It seems to be largely a question of practice as to how the matter of the misconduct of the jury shall be brought to the attention of the court, and how the misconduct shall be shown. The statute (article 817, subd. 8, supra) provides it may be by affidavit pro and con; article 821, that the state may meet the issues of the causes by affidavit or otherwise, and the case on this issue thus determined. While it is safest always to follow the language of the statute or its commands in regard to this question of misconduct, still the mere fact that affidavits were not made in obedience to the prior instructions of the court would not necessarily require reversal of the judgment, if the facts were otherwise produced, or if the opportunity was afforded, and the accused declined to produce the evidence. The ultimate effect and intent of these statutes are to inform the court with the sworn statements, either written or verbal, of the facts attending and manifesting the misconduct. This court would not feel called upon to reverse a judgment where the facts have been adduced or tendered for introduction, if declined simply because they were verbal, and not set out in affidavits. The essential matter is the information for the benefit of the trial court, and, in case of its rejection by that court or the overruling of the motion, then for the inspection of this court on appeal. We do not see, under the facts, how appellant has been injured. The jurors were all brought in and tendered accused, and two of them placed upon the witness stand, and their testimony elicited. He declined to introduce the remaining ten. We do not believe the testimony of these jurors would have been any more cogent or truthful in affidavit than when detailed verbally under oath. There is no such error in this matter as requires a reversal of the judgment. The charge of the court is criticised in regard to self-defense because it is an ad [Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 5, 16, 83, 119.] 5. HOMICIDE-INSTRUCTION-CODE. On a prosecution for homicide, where the killing was done with an old broken-handled pocketknife which was used by defendant on a sudden trouble coming up between him and deceased in regard to insulting conduct of deceased towards defendant, and defendant only used the knife after being struck by deceased, and inflicted but one wound, defendant was entitled to have given in the charge Pen. Code, art. 717, providing that the instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending, and that, if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appears. [Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, § 595.] Brooks, J., dissenting. Appeal from District Court, Angelina County; Tom C. Davis, Judge. Artie Craiger was convicted of murder in the second degree, and he appeals. Reversed. E. J. Mantooth, W. J. Townsend, I. D. Fairchild, and John F. Weeks, for appellant. O'Quinn & Robb and Howard Martin, Asst. Atty. Gen., for the State. BROOKS, J. This conviction is for murder in the second degree; the punishment assessed at five years' confinement in the penitentiary. The evidence for the state, in substance, shows that deceased, Henry Falvey, in company with Tom Dubose and others, was standing on the gallery of deceased's father, who was running a store at the town of Burke, when defendant passed, riding a horse; that Tom Dubose gave a derisive whistle, directed at defendant and his horse. This enraged defendant, and he stopped, and asked the parties on the gallery if they had anything against his horse or himself. Receiving no reply, defendant went a short distance, and after a little while turned and hitched his horse near the store of Meeks, went into the store, and was looking at a drummer display his goods. Deceased and several of his companions who were on the gallery of his father's store came across to the store where defendant was. After remaining there a few moments, defendant called deceased out on the gallery, with the statement that he wanted to see deceased. When deceased reached the gallery, defendant asked deceased what he was whistling at his horse for. Deceased denied that he had done so, but stated that Tom Dubose (who was then in the Meeks store) did the whistling. Thereupon Dubose ran behind the counter in the store. Defendant first asked where Dubose was, and, when informed of the fact, turned upon deceased and applied various vile epithets, such as "liar" and "son of a bitch," stating deceased did the whistling at his horse. Deceased picked up a piece of white pine plank and proposed to resent these indignities, and at that juncture his brother, J. C. Falvey, interfered and stopped the difficulty. A moment thereafter, deceased having secured another piece of plank, told defendant that he would not repeat the insults he had offered him, which being done, deceased struck defendant; defendant grabbed deceased by the arm and stabbed him with a pocketknife, which wound penetrated deceased's heart, and he died in a few moments. This is in substance the state's case. Defendant testified, in substance, to a complete case of self-defense, which is to some extent supported by his witnesses. Defendant further testified that the knife which inflicted the injury "was an old knife, with one handle nearly off; and you could just throw it open and shut. It would stand open if you would hold it straight, but if you held it the least bit slanting, it would fall shut. The back spring was broken." This is all the description we find in the record of the kuife 88 S.W.-14 The charge of the court in the main is an admirable presentation of the law of murder in the first and second degrees, manslaughter, and self-defense. The court also properly applied the law applicable to the imperfect right of self-defense, telling the jury, in substance, that, if defendant provoked the difficulty with intent to kill, he would be guilty of murder; or if he provoked the difficulty without the intent to kill, he would be guilty of no higher offense than manslaughter. The charge of the court, as suggested by the Assistant Attorney General, seems to announce the law as laid down by this court in Franklin v. State, 30 Tex. App. 628, 18 S. W. 468, and Id., 34 Tex. Cr. R. 286, 30 S. W. 231. There are various criticisms of the charge of the court, but a careful reading of the same demonstrates they are not well taken, and do not present reversible error. However, we deem it necessary to pass on one objection urged as an erroneous omission in the charge. Appellant insists that the court should have charged articles 717 and 719, Pen. Code 1895. Under article 51, Pen. Code 1895, the intent is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act. Under article 717, if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears. As stated in Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361, we have the following principles announced under the provisions of this article: First, that the weapon or means used must possess the quality of a deadly weapon without regard to the manner in which it is used; second, though not deadly, the manner of its use must show an evident intention to kill. In other words, the character of the weapon cannot be fixed or determined by the manner of its use. It must ordinarily be a deadly weapon per se to warrant a presumption arising from its use; or, if not such a weapon, the intent to kill must evidently appear from the manner of its use. Now, applying the principles of this article to the facts of this case, we hold that the weapon may be conceded not to be per se a deadly weapon, since the length and character of the same is not disclosed; but we hold that the intent to kill evidently appears from the manner of its use, and hence the provisions of article 717 are not required to be given in charge to the jury, as the issue thereby required to be charged is not raised by the evidence, to wit, a lack of evident intent to kill. The facts, as collated above, show that appellant provoked the difficulty, for, as he testifies, he had had previous difficulties with deceased: that deceased had provoked him on many occasions; and here upon the scene of the killing he had a knife drawn, and, as soon as his outrages and indignities to deceased had provoked deceased to resent it, he grabbed deceased by the arm and plunged the knife into his heart, from which he died instantly. As laid down by this court in Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17, defendant had a right to approach deceased and ask him why he offered him an dignity, but this was not evidently the intent and purpose of defendant in calling deceased out on the gallery, since, the moment deceased denied offering appellant any indignity, he cursed and abused him, and would take no character of explanation, although deceased stated that the party who did offer the indignity was then in the house. This being true, the intent to kill, the means and manner used to accomplish it, and the whole surroundings indicate clearly that appellant did have the evident intent to kill at the time he made the felonious assault upon deceased. Article 719, Pen. Code 1895, embodies the law of a case in which there was no intent to kill, and when the homicidal act is divested of an evil or cruel disposition. The facts of this case do not present any phase of this statute, and hence the court did not err in charging either article 717 or article 719, as insisted by appellant. For a discussion of this question, see Honeywell v. State, 40 Tex. Cr. R. 199, 49 S. W. 586; Perrin v. State, 78 S. W. 930, 9 Tex. Ct. Rep. 533; Baker v. State (Tex. Cr. App.) 81 S. W. 1215. The latter case in most, if not all, of its facts, is like the case at bar. The only difference we discover is that in the Baker Case the length of the knife blade is shown to have been 2% inches, while the length of the blade is not shown in this record. However, the whole tone and trend of the evidence shows that appellant used a deadly weapon, and had the evident intention to kill at the time he inflicted the deadly blow. The last insistence of appellant is that the court erred in not granting him a new trial on account of the misconduct of the juror George Manley. The misconduct consists, as appellant alleges, in the juror on his voir dire suppressing a preconceived ill will against appellant. To sustain this contention, appellant attaches the affidavits of several parties tending to sustain him. These affidavits were controverted by the state, and issue thereby joined, which issue the court decided against appellant. Under the authorities of this court, we are not called upon to review the decision of the court below in the matter. Belcher v. State, 37 S. W. 428; Cockerell v. State, 32 Tex. Cr. R. 585, 25 S. W. 421. No error appearing in the record, the judgment is affirmed. DAVIDSON, P. J., absent. On Rehearing. DAVIDSON, P. J. We have carefully reviewed this record in the light of the motion for rehearing, and are of the opinion that there was error in affirming the judg ment, and now conclude that it should be reversed. The substance of the evidence is that deceased, Henry Falvey, in company with Tom Dubose, Leonard Dunn, Wright Dunn, and Grover Dunn, were on the gallery of the store belonging to the father of deceased. J. C. Falvey, a brother of deceased, was interested in the store in some way, perhaps as clerk. Appellant had been in Falvey's store for the purpose of purchasing some nails. Failing to find what he wanted, he left, went to his horse, hitched about the street of the little town, mounted him, and rode by the store, going in the direction of another store, for the purpose of purchasing the nails. Grover Dunn testified that, as appellant passed, Tom Dubose gave a derisive whistle. Under his testimony, he was the only party whistling at defendant and his horse. Tom Dubose, Leonard Dunn, and Wright Dunn testified that Tom Dubose and deceased whistled. There had been previous trouble betwen deceased and appellant. Two personal troubles are mentioned by the witnesses. The testimony makes it certain that appellant was the subject of derision and practical jokes of one or more of these young men; that he was not very bright intellectually; that they made him the subject of their derision on several occasions, until it had become irritating and annoying to him; that shortly after appellant passed Falvey's store, going in the direction of the store of Weeks & Powell, these young men left Falvey's store, and went to where appellant was. En route they were heard to say, "Let's go over there; we aren't afraid of him." Coyle saw these boys en route, and requested them not to go over there and raise any trouble or have any trouble. However, they went; and appellant says that they came over there, singing and laughing at him. Just after they entered the store of Weeks & Powell, appellant called deceased out on the gallery, and asked why he was whistling and laughing, and making fun of him and his horse. Deceased denied that he was the party who had whistled at defendant and his horse as he passed Falvey's store. From this point forward the testimony varies as to the immediate subsequent acts and words. The state proved that, when deceased denied he whistled at appellant and his horse, appellant called him a damn liar. Deceased reiterated in similar language. Appellant jerked or got out his knife, and deceased grabbed the board, variously described, but it was of sufficient size and dimensions to inflict a serious blow. At this point J. C. Falvey (brother of deceased) took the board away from deceased, and he then got another board to use in the difficulty, when appellant inflicted one blow with a pocketknife, which terminated fatally. Appellant's theory of the trouble, as shown by the testimony, is that appellant called deceased out for the purpose of settling the matter amicably, and that, when he asked him why he had used his in sulting whistle and other conduct towards him, deceased said he had not done so. Appellant insisted that he had. He then called appellant a liar, or a damn liar, and grabbed a board and struck him with it on the hip. That J. C. Falvey then interfered, and deceased kicked a board from a box setting on the gallery, grabbed that, and, as appellant was turning to go away, deceased ran in front of him with it, and was about to strike him again, when he jerked his knife from his pocket, and struck one blow; that J. C. Falvey then expostulated with them, whereupon he ceased and went away. The only description of the knife given is: "It was an old knife, with one handle nearly off; you could just throw it open and shut. It would stand open if you would hold it straight, but, if you held it the least bit slanting, it would fall shut. The back spring was broken." This is the only description given in this record of the knife which was used by appellant, and with this he inflicted one stab. Various and sundry exceptions are reserved to the charge of the court. The charge limits the right of self-defense with provoking the difficulty. Under this state of facts it is seriously questionable whether or not this issue was in the case. Perhaps it may have been brought within this rule by the state's testimony under the decision of Polk v. State, 30 Tex. App. 657, 18 S. W. 466, concede that it was, then it was clearly incumbent upon the court to charge the converse of it, because the evidence more cogently states that the difficulty was brought on by deceased, and not by appellant. This question was admirably elucidated in Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17. Appellant unquestionably had the right in a peaceable manner to arm himself and to seek a meeting with the party who had insulted him, on a peaceful mission to endeavor to settle the troubles between them, and, if deceased made an attack upon him or provoked a difficulty, the further right to defend himself; but in this case appellant did not arm himself. It was a casual meeting, so far as the record shows, and, from the standpoint of appellant, and perhaps from the record, an unnecessary insult on the part of the young men, one of whom was deceased. They evidently followed him from the store of Falvey to the store of Weeks & Powell. It was shown that deceased was of a quarrelsome nature. Special charges were asked covering appellant's side of this question, which were erroneously refused. The court charged the jury: "In passing on the question as to whether or not defendant is justifiable, the facts and circumstances must be viewed from the standpoint of the defendant. Defendant would not be justified in killing deceased because deceased had followed him, or because deceased had whistled at defendant's horse. The only act that would justify defendant in killing deceased would be such acts upon the part of the deceased, or words coupled with his acts, as were reasonably calculated to produce in the mind of the defendant a reasonable expectation or fear of death or serious bodily injury." Exception was reserved to this charge as being argumentative and on the weight of the testimony. This was singling out the fact that deceased followed accused and had whistled at him and his horse, and charged upon the weight and effect of those two facts. This the court should not have done. While these facts may not have justified appellant in taking the life of his adversary, however, they were but two of the facts mentioned in connection with it which led up to the main facts of the trouble which occurred on the gallery. By this line of reasoning, the charge may have and doubtless did impress the jury with the idea that the court believed these were the only facts in the case relied upon by appellant, and, in fact, practically limited the consideration of the right of selfdefense to those two facts. It is not the province of the court to charge on the weight of the testimony. The jury are the exclusive judges of the credibility of the witnesses, and the weight to be given their testimony. The statute expressly prohibits the court from giving a charge on the weight of testimony. As before stated, appellant requested the court to submit the issue that if deceased provoked the difficulty at Weeks' store, and that appellant believed from the acts and declarations of deceased that it was his purpose to provoke a difficulty and do him serious bodily harm, and that, while deceased was in the act of inflicting serious bodily injury or was about to inflict serious bodily injury upon appellant, he (appellant) had the right to resist, and if, under those circumstances, he killed, defendant would not be guilty. Again, special instruction was requested to the effect that, if the jury should find from the evidence that deceased followed appellant from Falvey's store to Weeks' store for the purpose of provoking a difficulty with him, and, in pursuance of such design, deceased, not in the act of defending himself, procured a piece of plank and struck defendant, and that defendant then cut and killed Falvey, believing at the time he was in danger of serious bodily injury from Falvey, he would be entitled to an acquittal. These charges were refused. They should have been given. Exception is reserved to the charge because articles 717 and 719 of the Penal Code of 1895 were not given in the charge to the jury. Article 717 reads as follows: "The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently |