It

appears." Article 719 provides: "Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery." There is no evidence showing that the knife was a deadly weapon. The only fact from which that inference can be gathered is the "bare" fact that the wound inflicted by the knife did produce death. has never been held, so far as we are aware, that, because death resulted, therefore the weapon is necessarily a deadly weapon. The weapon is not necessarily a deadly weapon. The weapon is described as an old knife, with one handle nearly off; "you could just throw it open and shut. It would stand open if you held it straight, but if you held it the least bit slanting it would fall shut. The back spring was broken." There is enough evidence to indicate it was a pocketknife, for defendant got it out of his pocket. Pocketknives are not per se deadly weapons. They may or may not be deadly weapons. Where a weapon is not necessarily a deadly weapon, then we may look to the manner of its use, along with all the facts, in order to ascertain the intent with which it is used. If it is not ordinarily a deadly weapon, then, in order to find homicide, the intent to kill must evidently appear from the manner of its use. Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361. Here sudden trouble came up between the boys in regard to the insulting conduct of deceased towards appellant. It seems to be rather clear and certain that a deadly conflict was not contemplated. Appellant's intention, as he expresses it, was simply to ask for an amicable settlement of the trouble and a cessation of the insults. He had not armed himself for any deadly conflict; simply had an old broken-handled pocketknife, and resisted from his standpoint the attack made upon him with the plank. He only used the knife after being struck, and only inflicted one wound, which proved to be fatal. We do not believe the evidence warrants the court in taking the facts from the jury. It should have been submitted to the jury as a question to be decided. As bearing out this view of the law, see Nichols v. State, 24 Tex. App. 137, 5 S. W. 661; Martinez v. State, 35 Tex. Cr. R. 386, 33 S. W. 970. Under the very terms of the statute before the court would be authorized to refuse an instruction under article 717, supra, the testimony must make it evident that the party intended to kill. The facts here do not warrant the trial court in solving this question adversely to appellant. The charge should have been given under this statute.

It is not necessary to discuss the conduct of the jury, as it will not arise upon another trial.

In a prosecution for murder, the court did not abuse its discretion in recalling a state's witness after he had testified, and asking him if he was armed on the occasion of the shooting, and whether he remained to see the conclusion of the difficulty.

2. APPEAL-REVIEW-BILL OF EXCEPTIONSPURPOSE OF TESTIMONY.

In a prosecution for murder, the refusal to permit accused to state that, in a conversation with deceased before the shooting, he told him not to send any notes to his (defendant's) wife by his children, will not be received where the object and purpose of the testimony is not stated in the bill of exceptions.

3. HOMICIDE-EVIDENCE-CIRCUMSTANCES OF

In a prosecution for murder, where it appeared that immediately prior to the killing one of accused's children brought a note to his wife, which the evidence tended to show came from deceased, it was error to exclude testimony by accused that deceased's relations with his children were friendly, for the purpose of showing that deceased would be likely to procure the children to carry the note; it appearing that the genuineness of the note was contested.

7. SAME-EVIDENCE-RES GESTE.

In a prosecution for murder, it was error to refuse to permit accused to show by his wife what his child stated when delivering a note, as res gestæ of the act of delivering the note, which the evidence tended to show came from deceased. Appeal from District Court, Brewster County; B. C. Thomas, Judge.

Dave Upton was convicted of murder in the second degree, and he appeals. Reversed. Morris & Van Sickle and Geo. Powell, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of murder in the second degree, and his

punishment assessed at confinement in the penitentiary for a term of 10 years; hence this appeal.

The facts show that appellant and deceased were both employed at a mining camp in Brewster county. Appellant had a wife and two children, under nine years of age, who lived at the camp with him. Up to a short time previous to the homicide, appellant and deceased were friends. Two or three days before the killing, appellant discovered some acts of undue familiarity between deceased and his wife. Appellant's work was in superintending the engine of the mining company at night; and on Saturday night before the homicide, which occurred on the following Tuesday, he had occasion to go to his camp, and there discovered deceased with his arms around his wife-as he states, "in the act of bugging his wife." On the next day he remonstrated with deceased about his conduct, and they had some altercation. Later on, during Sunday, he started with his wife in a hack to Mariposa, where they could secure a stage, for the purpose of sending her to the train, and thence to El Paso, evidently for the purpose of a temporary separation, or getting her out of the way of deceased. He found the stage crowded, and returned to the mining camp with his wife and children on Monday. On Tuesday he was lying in bed in his tent, his wife being in the tent sewing, and the children brought her a note, which the evidence for the defense tends to show was from deceased, Reed. This note stated, in substance, for Mrs. Upton not to leave camp; that he would either run her husband off or kill him; and was signed, "George Reed." Evidently appellant was not asleep at the time this note was handed to his wife, as he raised up directly and demanded that she should hand it to him. She pulled the note out of the machine drawer, where she was sewing, threw it down, and ran out of the tent. Appellant read it, and immediately took his Winchester gun, went to where deceased was, found him with two Mexicans (also employés of the mining camp), and immediately shot him down. At the first shot deceased fell, and defendant then shot him again. Appellant says that, when he got to where deceased was, deceased made a demonstration as if to attack him, and he shot him. This is a sufficient statement of the evidence to present and discuss the assignments.

ed that the evidence does not show that, at the time this conversation occurred between Upton and Reed, Reed had ever sent a note by the children, or that Upton had ever heard that Reed had sent a note by the children, or that he had any intention of sending a note by them. This explanation of the court evidently suggests that the purpose of appellant in proposing to adduce the proof offered was to show that deceased would likely use appellant's children in sending notes to his (appellant's) wife. It does not appear from this bill, however, that the sending of the notes by the children was a controverted matter. In the absence of some showing in the bill itself as to the object and purpose of this testimony, and how its rejection injuriously affected appellant, we are not authorized to supply it. The bill should be complete within itself, so as to point out the error of the court, and show that the court's action in rejecting the evidence operated to the injury of appellant.

The next bill is with reference to the action of the court in recalling the state's witness Pablo Viegas, after he had testified, and asking him if he was armed on the occasion of the shooting, and whether he remained to see the conclusion of the difficulty, in answer to which he stated that he was not armed, and that he did not run away, but remained to see the conclusion of the difficulty. It is permissible to recall a witness, even after the defendant has closed his case, either in rebuttal, or where there is some controversy as to what the witness may have stated, and he can be required to restate his testimony on the point. This is a matter within the discretion of the court. As presented, we see

no error.

Appellant questions the action of the court in refusing to permit him to prove by the defendant, while a witness, that George Reed's (deceased's) relations with his children were friendly; that he played with the children frequently; placed them on burros, etc., assisting them to ride, etc. This testimony was excluded. Appellant in the bill fails to assign any purpose that would be subserved on his behalf in the admission of said testimony. The bill should have stated the object and purpose of said evidence. In the court's explanation to this bill it is stat

at the time the conversation occurred between Upton and Reed, Reed had ever sent a note to his wife or other person by the children, or that Upton had ever heard that Reed had sent or intended to send any note by the children. Of course, if we were permitted to look to the evidence, we might understand the object and purpose of the attempted introduction of this testimony, but we are not allowed to help out bills of exception in this

manner.

We do not believe there is anything in the refusal of the court to permit appellant to state the circumstances attending his surrender. There was no controversy on this point --as to a voluntary surrender by appellantand no evidence introduced by the state remotely tending to show flight.

The

Bill No. 5 shows that when Sadie Upton, wife of defendant, was testifying in his behalf, and had testified to the delivery to her of a note from the deceased, George Reed, immediately preceding the killing (being the second note witness testified to having received from George Reed, as shown by the statement of facts; said note having been delivered by one of the children of defendant to his wife, Sadie Upton, in company with the other child), defendant proposed to prove in this connection what the child said when in the act of delivering the note to said witness, as to who sent the said note, to wit, that the child said at the time that it was sent to witness (wife of defendant) by George Reed. On objection, this testimony was excluded. This was objected to on the ground that it was hearsay and immaterial. The bill does not show what object and purpose appellant had in offering this testimony. court, in the explanation, shows that he excluded it because appellant was not present at the time. Appellant, in his brief, insists that the testimony was admissible as a part of the res gestæ of the act of delivering the note. This contention, the writer believes, is correct. Wharton Law of Ev. (2d Ed.) vol. 1, § 262. However, if it be conceded that this statement of the child at the time of delivering the note was res gestæ (that is, a part of the transaction of its delivery), as stated before, appellant does not show what object and purpose he had in introducing this res gestæ testimony. Without such statement, we cannot undertake to say that it would have served any legitimate purpose. See authorities heretofore cited. Appellant argues at length in his brief that it was a controverted question as to the genuineness of said note; that is, as to whether it was written and sent by George Reed, deceased, to the wife of appellant. If this object and purpose had been stated in the bill, we believe there can be no question as to its admissibility. But it is not so stated, and we are not permitted to help out the bill by a reference to the statement of facts.

Appellant objected to the court sending the jury out while counsel for defendant were

arguing the questions of law to the court. As explained by the court, it occurred in this wise: Counsel for defendant was proceeding to address the court as to the legal propositions controlling the case, and over his objections the court sent the jury out. After this discussion before the court, the jury returned, and the court explains that appellant had full opportunity to discuss before the jury the law applicable to the facts of the case, and to apply such law to the facts; that his only object in sending the jury out was to enable the court to determine what issues should be presented to the jury. In this exercise of judicial discretion we do not believe there was error. See Vernon v. State (Tex. Cr. App.) 33 S. W. 364.

Appellant insists that the case should be reversed on account of the verdict of the jury, which is as follows: "We the jury find defendant guilty of murder in the second degree and assess his punish at confinement in the State Penitentiary for ten years." His insistence being that the word "punish" is unintelligible in this connection. We do not agree to this contention. Bain v. State, 79 S. W. 814, 9 Tex. Ct. Rep. 950.

Appellant also urges that the testimony is not sufficient to sustain the verdict. We confess that, looking to the evidence, it appears to us very much like a case of manslaughter; but we are not prepared to say that the jury was not authorized to find appellant was not excited by passion at the time, and so they may have been justified in finding murder in the second degree.

The judgment is affirmed.

On Rehearing.

This case was affirmed at a former day of this term, and now comes before us on motion for rehearing. Appellant urgently insists that the court was in error in holding that he failed to state the purpose he had in view in showing the friendly relations existing between George Reed, deceased, and appellant's children, and, further, that the court was mistaken in holding that it was not a controverted matter about Reed sending notes by the children of appellant. A more critical examination of this bill suggests that appellant does state that his purpose in introducing this testimony was to show that deceased would likely procure appellant's children in carrying notes between himself and appellant's wife. True, the court states in qualification to said bill that the evidence does not show that, at the time this conversation occurred between Upton and Reed, Reed had ever sent a note by the children. On reflection, it does not occur to us that this explanation disposes of appellant's bill of exceptions in this particular. In our view, it would not matter whether appellant knew at that time anything in regard to the notes, or that deceased was sending the notes by his children to his wife. Now, if, as stated in the original opinion, there was no controversy in regard

to deceased sending notes by appellant's children to his (appellant's) wife, then the refusal of the court to permit the testimony, perhaps, would not be injurious to appellant. However, we do find in the testimony that the genuineness of these notes was contested by the state. It was proven by the mother of deceased that the note produced in evidence did not have the genuine signature of her son George Reed. So that, in a sense, there was a controversy as to the genuineness of these notes, which evidently embraced the fact as to whether or not they were sent by deceased to appellant's wife. Taking this view of the question, we were evidently in error in holding that the court was correct in excluding the testimony as is shown by the bill.

We also believe that we were mistaken in holding that appellant's bill No. 5 failed to show error. If the delivery of the note from deceased to appellant's wife by appellant's little child was admissible in evidence-and unquestionably it was-what occurred at that time, as stated in the original opinion, was a part of the res gestæ of that act, and was admissible as a part of the act; and although the object and purpose are not further stated, than that it was res gestæ, we believe that was a sufficient statement to render it admissible, in connection with the delivery of the note. If that was a material circumstance, it was obviously material to show what was said by the messenger at that time as to who sent it.

The motion for rehearing is accordingly granted, and the judgment is reversed and the cause remanded.

ARMSWORTHY v. STATE.

(Court of Criminal Appeals of Texas. June 21, 1905.)

1. HOMICIDE-CAUSE OF DEATH-INSTRUCTION. Where deceased lived till within a few days of six months after being shot by defendant, and within two months after the shooting deceased was able to be up and visit his neighbors, defendant was entitled, on a prosecution, for killing deceased, to have Pen. Code 1895, arts. 651, 652, charged, requiring not only that the destruction of life must be brought about by the act of another, but that the destruction of life must be complete by the act. 2. SAME SELF-DEFENSE.

On a prosecution for homicide, evidence examined, and held to raise the issue of and entitle the defendant to a charge on self-defense. 3. SAME-MANSLAUGHTER.

The evidence was also sufficient to entitle defendant to a charge on manslaughter. 4. SAME-AGGRAVATED ASSAULT.

The evidence was also sufficient to entitle the defendant to a charge on aggravated assault.

5. SAME PREVIOUS THREATS-CODE.

Proof of previous threats by deceased to injure defendant entitled the defendant to a charge as to such threats, under Pen. Code 1895, art. 713, providing that, where a defendant accused of murder seeks to justify on the

ground of threats against his own life, he may be permitted to introduce evidence of the threats made.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

A. M. Armsworthy was convicted of murder in the second degree, and he appeals. Reversed.

Mahaffey & Thomas and J. B. Manning, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of murder in the second degree, and his punishment fixed at confinement in the penitentiary for a term of five years.

The evidence shows, in substance, that appellant and deceased met in the public road; deceased being in a wagon, and appellant walking. Words ensued between them, and appellant attempted to shoot deceased with a pistol. The pistol snapped, and appellant left, and in a few minutes returned with a gun and shot deceased in the face, putting out his eyes, and slightly wounding him in other portions of the head and face. Dr. Talbot testified that he was a physician; could not tell how many shot hit deceased; could not count them; he was shot all over the face. His eyes were shot out, and he was shot in the mouth. He was shot in the hair, neck, throat, and chest, and perhaps one or two of his teeth were shot out.

"I extracted some of the shot. Waited on deceased 8 or 10 days. In my opinion, this was a very serious wound, but I did not consider it fatal unless complications arose. I ceased attending him because I did not think my services were needed any longer, and thought his condition very good. I did not consider the wounds dangerous. It was a serious wound, but not necessarily dangerous. By complications I mean erysipelas, blood poisoning, or pneumonia. I consider it, as far as the wound went, unless these complications set up, he was out of danger when I quit." The testimony does not show that any complications such as the physician testified about ensued. Within two months after deceased was shot he was up and able to visit his neighbors. It was within a few days of six months after the wounds were inflicted by appellant before deceased died. Appellant insists that the court should have charged articles 651 and 652, Pen. Code 1895. The charge of the court in reference to the matter thus suggested is as follows: "I further charge you, upon an indictment for murder, defendant may be convicted of assault with intent to murder. If the evidence in this case fails to establish to your satisfaction, beyond a reasonable doubt, that the wounds inflicted by the defendant, if any, on the deceased, E. G. James, caused his death, then you will consider whether the defendant is guilty of an assault with intent to murder." The articles cited above

are more specific, as insisted by appellant, than the common law, and state not only that the destruction of life must be brought about by the act, agency, procurement, or omission of another, but that the destruction of life must be complete by such act or agency. In other words, if the wounds inflicted by appellant upon deceased did not cause his death, and appellant was not the guilty agent that brought about the complete destruction of his life, then he is not guilty of murder. It is true that the witnesses testified deceased did not recover; that his health gradually failed under the wounds inflicted by appellant. We take it that appellant, being entitled to the reasonable doubt in the matter, should have had a charge presenting the question more accurately.

Appellant insists that the court should have charged on self-defense. Appellant testified in his own behalf, substantially, as follows: That the difficulty between himself and deceased occurred on June 28, about 5 o'clock; that he had been to Texarkana with his father, and came back with him; that he (defendant), in company with Gardner, left Dr. Bentley's home and started to his (defendant's) home. Deceased lived about 300 yards south of Bentley's house, on the west side of the road, opposite Gardner's. When defendant and Gardner were about halfway between Bentley's place and Gardner's, defendant heard a wagon coming behind him, and, glancing back, saw it was deceased in company with Walraven and Hickson. When defendant saw the wagon he said to Gardner that he wanted to speak to James (deceased). Defendant accosted James as follows: "I said, 'Hold on a minute, Mr. James.' He pulled up the lines and said, 'Well?' I said, 'Mr. James, what is the matter? What have we done to you as a neighbor to cause you to take such a stand as you have? He said, 'I have done nothing, except what the law requires me,' or words to that effect. I said, 'I care nothing for that; but you made a remark this afternoon, and I want to know whether it was with reference to my sister or not.' He said, 'You God-damn little son of a bitch, do you presume to ask me what I say or do?' or words to that effect; and he said, 'I will wear you out.' He had a whip in his hand, or reached for one; he had it anyway when I looked up, and he was threshing at my face and eyes from a standing position in the wagon. He was sitting down when I spoke to him, and after I spoke he arose and commenced threshing at me when I asked those questions. When he threatened to whip me he reached out, that way for me, and I drew a revolver. I said to him, 'It is enough to scandalize my people, let alone horsewhipping me, and I will not stand for it. I will certainly hurt you if you hit me in the face with that whip.' Hickson said to me, 'Don't shoot, Arthur.' I said, 'I am not going to shoot, and I am not going to be

* * 串

horsewhipped either.' Walraven and Hickson were trying to get hold of James to hold him back in the seat, and the mules either started up or somebody started them, and they went a few paces, three or four, south, and Mr. James jumped out of the wagon and said, 'I will wear the road out with that little son of a bitch if I can get hold of him,' and I looked back and he was coming on me, and I drew the revolver again. He threw the whip at me, and I picked it up and threw it back in the wagon, and said: 'I will have no more to do with you. You have got no sense. I see that.' I went away from there then-went north. I did not snap my gun at him. I went in the direction of Dr. Bentley's. After I had turned the corner of the lane going east, 1 heard James say: 'Oh, Charles, bring me that; bring me that! I will kill the damned son of a bitch, if he is the last man I ever see.' I heard James say that. I was then on my road home. Some one halloaed in the house, 'Come in, Arthur, they are going to intercept you across the field.' I said, 'I guess not;' and my aunt or somebody in the rear of the house came to the side gate in the south yard fence, and got hold of me, and said, 'Come in, Arthur, and eat supper, and then go home,' and I could not well get away. She was kind of excited, and had hold of me, and I advanced into the gate, through the woodhouse, then through the dining room into the middle room. I remained in the house a very short time. I just stepped into the middle room, and there was a south window. I expected somebody in that middle room. My aunt left me there in the dining room, or went around to the rear. * * I heard exceedingly loud talking, looked out the window, and saw two or more persons coming in a northerly direction. I saw one of them was Mr. James. They were probably 10 or 12 paces apart. I heard some loud cursing, but could not distinguish the words. I was inside the house, and could hear one oath after another-a regular torrent of oaths. I thought they were undoubtedly coming after me, and to do me some harm. There was a double-barrel shot gun setting in the closet just to my right, and I picked it up by the barrel * and went out of the house, but did not see any one, but could hear somebody. * I stood there a half minute, possibly, before I saw any one. I then saw Charley James, and saw his father afterwards; I could not say positively how close Charley was to his father, but the best I can remember would be, about half the distance between his father and myself. When I saw him he was possibly 15 steps from me, and I says, 'Hold on, Charley,' and he stopped, and almost simultaneously, or immediately afterwards, his father halloaed and said, 'Stand aside, Charles, I will fix the son of a bitch,' and then I looked beyond him. He stepped out of