questions raised are as to the charge of the court and the sufficiency of the evidence to sustain the conviction. Appellant questions the action of the court in agglomerating appellant's right to interfere with the difficulty between his friend Pedro Barstado and prosecutor, Gallamore, and his right to enter the difficulty to protect Pedro, and his own right of self-defense. The court does conjoin these two features of defense in the same charge. As we read the evidence, appellant at no time acted in his own self-defense, but, if he was authorized to interfere at all, it was on behalf of his friend Pedro. The court should have confined his charge to this feature alone, as a conjunction of the two in the same charge was liable to confuse and mislead the jury. Besides, as stated, the court was not authorized to give a charge on self-defense, so far as appellant was concerned at all.

It is further complained that, in connection with the charge on self-defense and defense by appellant of his friend Pedro, the court improperly qualified the same with a charge on provoking the difficulty by Pedro with the said Gallamore. The record shows substantially that prosecutor had brought Pedro, with some four other Mexicans, from Ballinger, to pick cotton for him in Taylor county. They picked for him a day and a half, and then quit. On the day of the difficulty all of the parties were in the town of Tuscola, Taylor county. Pedro, who seemed to have charge of the other Mexicans (he being the only one who could speak English well), was insisting on prosecutor, Gallamore, paying him for picking the cotton. Gallamore contended that they were to pay him for bringing them from Ballinger to Taylor county; that the understanding was, if they stayed with him and picked cotton for him he would not charge them, but, as they had quit him, that they should pay him for bringing them. It seems there was a crowd of Mexicans in front of Young's store at the time this altercation was going on. Gallamore declined to pay anything, and told Pedro to let him alone about it, whereupon Pedro told him he was "the damndest sorriest white man in Taylor county." Prosecutor asked him what he said, and Pedro repeated this, whereupon prosecutor turned and walked into Young's store, Pedro following immediately after him, and two of the other Mexicans also moving towards the store. It is shown that as soon as Gallamore (prosecutor) got into the store he walked behind the counter, got a gun, and came around the counter with it. Pedro advanced towards him, having in his hand a paper sack, which one of the witnesses says contained a knife. As Pedro approached, Gallamore shot him with the gun. Pedro fell on his back, and the other four Mexicans immediately appeared in the store and began an attack on Gallamore. Appellant wrenched the gun from Gallamore, and proceeded to

strike him with it. During the subsequent progress of the struggle, the Mexicans cut Gallamore a number of times on the head, in the back, and about the face. Appellant is not shown to have had any weapon except the gun which he snatched from Gallamore, and which he used to strike with. From this general statement, we take it, two theories are suggested-one for the state that Pedro and the other Mexicans followed Gallamore into the store, Pedro having insulted him by the use of the language before referred to, for the purpose of seeking a quarrel and difficulty; and one on the part of appellant and the other Mexicans, that they went into the store, following Gallamore there, whom they had no right to believe was going after the gun, expecting to get a settlement from him. This is substantially all of the testimony with regard to provoking a difficulty. On it the court was justified in charging on provocation. It occurs to us that the court should, in this connection, have presented a counter theory; that is, if Pedro had no intention of provoking the difficulty, and did no act to bring the same on, but went into the store with the other Mexicans, expecting a settlement, and that they were then assaulted by prosecutor, the right of self-defense of Pedro would be complete.

The charge on provoking the difficulty is further criticised by appellant on the ground that it failed to inform the jury that it was required that Pedro must have used some language or done some act with intent to provoke a difficulty before he and those with him would be deprived of the right of selfdefense. The charge of the court seems merely to cut off the right of self-defense if Pedro and those with him sought the occasion regardless of the doing of some act calculated to bring the difficulty about. This character of charge has been frequently condemned. Airhart v. State, 40 Tex. Cr. R. 470, 51 S. W. 214, 76 Am. St. Rep. 736; Winters v. State, 37 Tex. Cr. R. 582, 40 S. W. 303; McCandless v. State, 42 Tex. Cr. R. 58, 57 S. W. 672.

There is some testimony in the record, though it is meager, tending to show a conspiracy on the part of the Mexicans to force prosecutor to settle for picking the cotton by the use of violence. In view of another trial, if the proof sufficiently tends to show this, then the court should instruct the jury on the doctrine of conspiracy. Chapman v. State, 76 S. W. 477, 8 Tex. Ct. Rep. 392.

The evidence here presents a theory in favor of this appellant, and it may do so in another trial, to the effect that all he did after hearing the gunshot in Young's store was to go into the store, and there he saw his companion Pedro shot down, and the prosecutor in the act of doing him further violence; that he then seized prosecutor's gun, wrested it from him, and struck him with it. If he was engaged in no conspiracy, in connec

tion with Pedro, to bring on the difficulty with prosecutor, and he only entered into the conflict to protect his friend Pedro, he was guilty of no offense. The court should distinctly present this matter in a charge to the jury. As stated before, there is nothing in this record suggesting self-defense, so far as appellant was concerned, but only the defense of Pedro. The charge should not embrace an issue not raised by the testimony. For the errors discussed and pointed out, the judgment is reversed, and the cause remanded.

PEDRO v. STATE.

(Court of Criminal Appeals of Texas. June 14, 1905.)

1. ASSAULT-PROVOKING DIFFICULTY.

To render one guilty of provoking a difficulty it must be shown that he did some act at the time calculated to have that effect.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, § 149.]

2. SAME-INSTRUCTION.

On a prosecution for aggravated assault, where it appeared that the defendant made the assault while interfering in behalf of another, and evidence of declarations made in the absence of defendant was introduced to show the intent of the person in whose behalf he interfered, the defendant was entitled to a charge that he was not bound by any intent of such person unless the jury believed beyond a reasonable doubt that the evidence showed he adopted the intent, and was co-operating in bringing on the difficulty.

Appeal from District Court, Taylor County: J. H. Calhoun, Judge.

Blazdo Pedro was convicted of aggravated assault, and he appeals. Reversed.

W. L. Grogan and B. A. Cox, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of an aggravated assault, and his punishment assessed at two years' confinement in the county jail and a fine of $1,000. This is a companion case to that of Pedro Barstado v. State, 87 S. W. 344, and Saturina Garza v. State, 88 S. W. 231. The charge on provoking the difficulty contains the vice discussed in the cases cited, and, as stated, is erroneous. In order to constitute one guilty of provoking a difficulty, he must do some act at the time calculated to provoke the same. If appellant was acting with Pedro, and Pedro, with intent to provoke a difficulty, used language to Gallamore, the injured party, calculated to effect this object, then the defendant would be guilty of the intent actuating Pedro in provoking the difficulty, whatever that intent may be. If he provoked the difficulty with intent to kill, and a killing occurs, it would be murder in the first or second degree. If he provoked the difficulty without such apparent intention, he would be guilty of manslaughter. This is a question that should have been properly submit

ted to the jury, stating in each instance, of course, that appellant must co-operate with Pedro in whatever intent Pedro had, and the jury must believe beyond a reasonable doubt that he did so join or co-operate.

During the progress of this trial the evidence showed that one Pedro had a difflculty with Tom Gallamore, and certain acts and conversations leading up to said difficulty between Pedro and Gallamore were introduced in evidence against this defendant, which acts and conversations were not in the presence of the defendant. The learned trial court attempted to limit this testimony by the following charge, to wit: "The court permitted some evidence to be introduced before you tending to show certain conversations between the said Tom Gallamore and one Pedro in a drug store and at other places before the time of the alleged assault that were not in the presence of the defendant. Some testimony was also introduced as to the action of one Mexican called 'Bob,' and as to transactions between said Bob and said Pedro, not in the presence of the defendant now on trial. Said evidence as to said acts and conversation was allowed to be introduced for the purpose only of better enabling you to understand (if it does) how the difficulty (if any) between said Tom Gallamore and said Pedro arose or came up, and to explain the actions of said Tom Gallamore, if it does, and the actions of said Pedro, if it does; and the same must not be considered by you for any other purpose. Said acts and declarations, if any, that were not shown to be within the knowledge of this defendant, must not be considered as evidence against him on this trial, or as tending to establish his guilt in any way. And no act or word of any person that the evidence fails to show you or to satisfy you was within the knowledge of the defendant should be considered by you as evidence tending to establish the defendant's guilt." This charge is erroneous. The court should have charged the jury, if they believed certain acts and conversations of third parties were introduced, then the same were introduced for the purpose of illustrating the intent and purpose of appellant's codefendant Pedro, and to throw light upon his animus and purpose, and the jury should not regard said acts and conversations at all in making up their verdict against defendant, unless they were satisfied beyond a reasonable doubt that the defendant was actuated and moved by the same purpose and intent of Pedro at the time the difficulty took place. In other words, that the defendant is not bound by any intent of Pedro, unless the jury believe beyond a reasonable doubt that the evidence shows he adopted said intent and was cooperating with him in bringing on the difficulty.

Appellant insists that the evidence is not sufficient to support the verdict of the jury. The record before us is replete with evidence

that appellant was co-operating with Pedro at the time of the difficulty and was assisting in said difficulty.

For the errors discussed, the judgment is reversed, and the cause remanded.

MARTINEZ v. STATE.

(Court of Criminal Appeals of Texas. June 14, 1905.)

ASSAULT WITH INTENT TO MURDER SELFDEFENSE.

The law of self-defense, as applied to one accused of assault with intent to commit murder, who at the time of the assault was acting in defense of another, does not apply to accused personally, and accused's right of self-defense would be the same as that of the person in whose defense he was acting.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 177-181.]

Appeal from District Court, Taylor County; J. H. Calhoun, Judge.

Placido Martinez was convicted of assault with intent to murder, and he appeals. Reversed.

W. L. Grogan and B. A. Cox, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Conviction of assault with intent to murder, four years in the penitentiary being fixed as the punishment. This is a companion case to that of Saturina Garza v. State (this day reversed) 88 S. W. 231. It is a part and parcel of the same transaction, and the questions in this case are practically the same as those raised and decided in Garza's Case. However, in this case appellant requested an instruction to the effect that, if he acted in the defense of Pedro Barstado, and the right of self-defense was in Pedro, then his right of selfdefense would be the same as that of Pedro; in other words, that the law of self-defense as applied to him did not apply to him personally, but in the defense of another. The charge was refused, and this was error. However, it is not necessary to discuss this and the other questions raised, because they are fully passed upon in Garza's Case. The judgment is accordingly reversed, and the cause remanded.

PEARCE v. STATE.

(Court of Criminal Appeals of Texas. June 7, 1905.)

1. LOCAL OPTION-VIOLATION-PATENT MEDICINES.

In a prosecution for violating the local option law, where it appeared that the liquor sold by defendant as a drug clerk was a bottle of Kidney Specific, prescribed as a medicine, and which did not smell, taste, or look like an intoxicant, it was error to refuse an instruction that defendant was not guilty if the liquor sold was a medical preparation, and was not an intoxicating liquor when drunk in such quantities as could be practically drank.

2. SAME. Defendant was not guilty if the liquor sold contained various drugs as ingredients, and a person taking it in such quantities as could be practically drank would be influenced by it or made drunk, but such effect was the result of the drugs contained in the preparation, and not of any intoxicating liquor therein.

Appeal from Comanche County Court; J. H. McMillan, Judge.

Tom Pearce was convicted of violating the local option law, and he appeals. Reversed. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. This is a local option conviction. The state's case disclosed that the alleged purchaser secured from appellant, a clerk in the drug store of Dr. Daniel, a bottle of a preparation called "Kidney Specific"; that later on he bought two other bottles-one for Walter Johnson and the other for Charley Johnson; that he drank about 11⁄2 bottles of this specific. "It made me drunk, but it did not affect me exactly like whisky. It did not look, taste, or smell like whisky. It did not make my tongue thick, like whisky does. I have been drunk on intoxicating liquor, and know its effects. I do not remember drinking any whisky that day." Odell was also introduced for the state. He says he was in the photograph gallery, where he saw the purchaser, Fant, and that Fant was drunk. Saw him drink something from a bottle which he took to be whisky. It looked like whisky. "I have seen the Kidney Specific, and the liquor he drank from the bottle did not look to me like Kidney Specific. I do not know where the whisky came from, or how much of it Fant had drank, as Fant and the whisky were both up there when I went. He appeared to be out of fix before he drank the whisky." Defendant's evidence discloses that witness Johnson furnished Fant 50 cents for the purpose of purchasing a bottle of Kidney Specific, which was afterwards used by them. At the time he gave Fant the 50 cents, Fant appeared to be drunk. "Later in the morning I was upstairs at Mr. Parks' photograph gallery, and saw Walter Fant drink some whisky. The Kidney Specific does not taste nor smell like whisky. I drank about onehalf bottle. This did not have any effect on me." Parks testified: That he was familiar with the preparation called "Kidney Specific." That he had used it as a beverage. "Kidney Specific does not look, taste, or smell like any intoxicant. It does not affect me at all, or like any intoxicant. I have drank as much as one bottle, or a pint, at a time, and did not experience any effect from it." Nelson testified that he was a drummer, and has been following that business for 12 years, 10 of which he had sold drugs in Comanche county; that he sold a large number of proprietary and patent medicines-among those, the Kidney Specific; that he sold this medicine to Dr. Daniel; that he had been

selling it for 10 years in Comanche county, and long prior to the time local option law became operative in that county. He says that he had sold as much or more of it before local option was operative than since; that he was familiar with the preparation; that it was not at all like an intoxicant; that it did not look, taste, or smell like an intoxicant; that he had used it as a medicine, and never experienced any intoxicating effect. Dr. Daniel testified that he carried this Kidney Specific in his stock, and had been treating Fant for a relapse of mumps; that on Friday, before this sale occurred, he had told Fant to send to the drug store and get a bottle of medicine which he would prepare; that he prescribed a bottle of this medicine, and, in addition, added a little niter to the Specific, and had it set aside for him. It is shown by this witness, as well as defendant, on his examination, that when Fant came to the drug store this particular bottle was given him. Dr. Daniel further testified that he used this Specific in his general practice as a kidney tonic, for both men and women, and has always found it to be an excellent tonic; that he was familiar with the nature of the preparation and its ingredients; that it contains turpentine, juniper berries, spirits of niter, and other drugs, with equal parts of gin and water, having only a sufficient amount of gin to preserve the drugs, and not enough to intoxicate; that a man could not ordinarily drink enough of it to be intoxicated by the gin it contained; that, before the gin would affect a man, he would be nauseated, and, in a sense, made crazy and drunk on the other ingredients it contained. Defendant testified in his own behalf that he let Fant have the bottle in question under the direction of his principal, Dr. Daniel; and he also testified that the preparation did not smell, taste, or look like an intoxicant. This is, in brief, the substance of the testimony.

The court charged the jury on the defensive theories that any liquor capable of being used as a beverage, containing sufficient alcohol to produce intoxication when drunk in practical quantities, is an intoxicating liquor, and the jury should not convict unless they should find from the testimony that the liquor sold was an intoxicating liquor, as defined. He further charged: Another defense relied on by defendant was that if it was an intoxicating liquor, and he (defendant) did not know it, and if the jury should believe it was an intoxicating liquor, but that defendant, at the time he sold it, believed in good faith that it was not intoxicating liquor, and, without reason to believe it was intoxicating liquor, sold it, they would acquit. Exception was reserved to the charges. Special instructions were requested, submitting not only a definition as to what intoxicating liquor is, in accordance with the previous decisions of this court; but appellant contends that the charge here given did not meet the issues made by the testimony. Among other

special charges refused is the following: "You are further charged, as a part of the law of this case, if you find the liquor sold was a medical preparation, and was not an intoxicating liquor when drank in such quantities as could be practically drank, you will find the defendant not guilty." And again: "You are further charged, as a part of the law of this case, that if the liquor sold contained various drugs, as ingredients, and that a person taking same in such quantities as could be practically drank would be influenced by the same or made drunk, but that such effect or drunk produced by the preparation was the result of the drugs so contained in same, and was not the result of any intoxicating liquor contained in said preparation, you will find the defendant not guilty." We believe that, under the facts, these charges should have been given. The rule in regard to matters of this sort is well stated in Amer. & Eng. Ency. of Law, vol. 17, p. 204. "It has been held that whatever is generally and popularly known as medicine or an article for the toilet, recognized and the formula of its preparation prescribed in the United States Dispensatory, or like standard authority, and not among the liquors ordinarily used as intoxicating beverages, such as tincture of gentian, paregoric, bay rum, cologne, etc., is not an intoxicating liquor, within the meaning of the statutes regulating and prohibiting the traffic in intoxicating liquors, and the courts may so declare as a matter of law, notwithstanding such articles contain alcohol and may produce intoxication. If the compound or preparation be such that the distinctive character and effects of intoxicating liquors are gone, and its use as a beverage is rendered undesirable or practically impossible by reason of the other ingredients, and the liquor is used merely as a vehicle for or preservation of the other ingredients, or to extract their virtues and hold them in solution, the article will not be within the prohibition of the statute, although its use may produce intoxication. On the other hand, if the liquor is the predominant ingredient, and sufficiently retains its intoxicating qualities to render the mixture reasonably susceptible of use as a beverage, it is within the prohibition of the statute. The laws cannot be evaded by disguising intoxicating liquors sold as a beverage with some tincture or preparation which will give to the liquor, to some extent, the flavor or appearance of medicine, or by mixing with the liquor drugs, barks, or seeds which have medicinal qualities." In regard to the question of evidence, the same text says: "The composition and character of the article, and the amount of alcohol in it; whether it does readily or with difficulty produce intoxication; whether it is agreeable or nauseous to the taste; whether it is used or not used as a medicine to cure disease; whether it is generally kept and sold by druggists as a medicine; whether it is frequently resorted

*

to and used as a beverage are competent matters to be given in evidence to determine whether the article sold is or is not within the prohibition of the statutes."

Under the facts of this case, it is a very serious question, and the preponderance of the evidence would seem to indicate that Fant was intoxicated, not from the Kidney Specific bought of appellant, but from the use of whisky. The state's main point of proving the intoxicating properties of this compound is found in the fact that Fant was intoxicated. If he became so from the whisky used, either before or after drinking | the Specific, or in connection with it, it might be a serious question as to whether or not the intoxicating properties of the Specific was shown by this condition of affairs. Under the testimony for the defendant, it is made definitely accurate that the intoxication did not follow the use of the Specific, and, if it did, it was not that character of intoxication that comes from the use of gin or whisky. Even the state's case shows that it was not the intoxication produced by the use of whisky or gin. If this compound was used as a medicine, usually sold as such, and not as a beverage, to evade the local option law, under the quotation above, the sale of it would not be violative of the law. The quotation from the American & English Encyclopedia of Law, is sustained in the note by ample and numerous authorities. If this was a medical compound, with only sufficient amount of gin included to preserve it or to extract the properties from the ingredients, and was not usually sold as a beverage, but as a medicine, it would not be violative of the statute to sell it; and the jury should have been given some criterion by which this question, which is the crucial point in the case, could be decided by them.

We believe the special charges requested by appellant should have been given, and, because they were not, the judgment is reversed and the cause remanded.

An indictment for swindling, charging that defendant obtained money by the sale of wheat falsely represented by him to be dry-weather wheat, which would stand the drought better than any other, and which was superior to wheat raised in a certain county, held not to charge any offense against the laws of the state.

[Ed. Note. For cases in point, see vol. 23, Cent. Dig. False Pretenses, §§ 7-10.]

Appeal from Collin County Court; F. E. Wilcox, Judge.

G. W. Curtis was convicted of swindling, and appeals. Reversed, and prosecution ordered dismissed.

Abernathy & Abernathy, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of swindling, and his punishment fixed at a fine of $100, and 30 days' confinement in the county jail.

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The charging part of the indictment is as follows: That G. W. Curtis, on October 20, 1903, with force and arms in the county of Collin and state of Texas, devising and intending to secure the unlawful acquisition of fifteen dollars in money of the value of fifteen dollars, then and there the corporeal personal property of and belonging to S. M. Francis, and with the further intent on the part of him, the said G. W. Curtis, to appropriate said money when so acquired to his own use, did then and there unlawfully and fraudulently acquire possession of said money from the said S. M. Francis by means of false and deceitful pretenses, devices, and fraudulent representations then and there unlawfully, knowingly, and fraudulently made by him to the said S. M. Francis, in this, to wit: The said G. W. Curtis did then and there falsely pretend and fraudulently represent to the said S. M. Francis that he, the said G. W. Curtis, was the owner of certain dry-weather wheat; that the same was raised in Fannin county, Texas, and was grown from seed that originally came from Arizona; and that said wheat would stand the dry weather better than wheat raised from seed grown in Collin county, Texas, and that said wheat was superior to the wheat grown in Collin county, Texas. And he did then and there by means of said false pretense and fraudulent representations fraudulently induce the said S. M. Francis to exchange his said money for ten bushels of said alleged dry-weather wheat, and by reason of said false pretenses, devices, and fraudulent representations so made by the said G. W. Curtis, to the said S. M. Francis, he, the said S. M. Francis, was then and there induced to part with and did part with the title and possession of said money, and did deliver the title and possession of the same to the said G. W. Curtis, in exchange for, and did receive therefor from the said G. W. Curtis, the said ten bushels of said alleged dryweather wheat, whereas, in truth and in fact, the said G. W. Curtis did not then and there own any dry-weather wheat, and did not then and there own any wheat raised in Fannin county, Texas, and did not then and there own any wheat grown from seed that originally came from Arizona. And whereas, in truth and in fact, said alleged dryweather wheat would not stand the dry weather better than the wheat raised in Collin county, Texas. And whereas, in truth and in fact, the wheat then and there owned by the said G. W. Curtis, and so exchanged as aforesaid, would not stand the dry weath