
    LUTTRELL v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    Rehearing Denied May 28, 1913.)
    1. Criminal Law (§ 1166%) — Habmxess Er-eoe — Selection oe Jurors.
    Unless some juror who sat in the case was legally objectionable, rulings of the court with respect to the competency of jurors, etc., are not ground for a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dee. Dig. § 1166%.]
    2. Criminal Law (§ 1091) — Appeal—Bill oe Exception. ,
    A bill of exception for prosecution with an assault to kill, recited that prosecuting witness testified to a settlement for cotton purchased, and that witness mentioned to accused that he owed him for picking cotton and “it made him mad,” and that defendant objected to the quoted evidence on the ground that it was a conclusion, and excepted to the overruling of objection. Held not sufficient to authorize a view of any error in admitting the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1091.]
    3. I-Iomicide (§ 169) — Assault to Kill — Admissibility oe Evidence.
    The evidence complained of was admissible. [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dee. Dig. § 169.]
    4. Criminal Law (§ 1091) — Appeal—Bill oe Exception.
    A bill of exception to the exclusion of evidence was insufficient, where it did not show what answer witness would have given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. §
    
    5. Homicide (§ 176) — Assault to Kill — Admissibility oe Evidence.
    In a prosecution for assault with intent to kill, evidence that prosecuting witness could not straighten up well, but it pulled the cut and broke loose close to his heart, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 379; Dee. Dig. § 176.]
    6. Criminal Law (§ 368) — Evidence — Res Gesms.
    In prosecution for assault with intent to kill, evidence that' immediately after accused cut prosecuting witness, the witness testifying saw prosecuting witness standing and had to help him, and that he did not pick him up and carry him, but assisted him from the scene of the difficulty to witness’ house, was admissible as res gestae.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. § 368.]
    7. Witnesses (§ 406) — Impeaching- Evidence-Admissibility.
    In a prosecution for assault with intent to kill in which accused claimed that his arm had been so injured a few days before the difficulty that he could not use it, evidence that he had used an ax the day before the trouble, to break open a salt barrel, and carried part of the salt home on his shoulder, was admissible to impeach accused as a witness. •
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. § 406.]
    8. Witnesses (§ 393) — Inconsistent Statements — Testimony on Former Trial.
    In a prosecution with intent to kill, the state could prove accused’s evidence on a former trial, which disputed his evidence at the present trial on a material point.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.]
    9. Criminal Law {§ 1091) — Appeal—Bill oe Exception — .Sueeiciency.
    A bill of exception recited that on voir dire 36 or more men were examined for jury service, and challenges for cause were made and sustained until only 24 men remained, and the court thereupon directed the challenge to be made from the list of 24 men, to which defendant objected and requested a full panel, which objection is overruled, and that on the challenges the state struck 6 men and.the defendant 8, and the first 12 remaining were impaneled to serve as the jury, to all of which defendant then and there excepted. Held, that the bill of exceptions did ndt authorize review of the alleged error.
    [Ed. Note. — For other cases, see Criminal Law, -Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    10. Homicide (§ 171) — Assault to Kill-Admissibility oe Evidence.
    In a prosecution in an assault with intent to kill evidence by prosecuting witness that accused was growling and cursing at the time of and just before their first fight, which led to the cutting, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 351-358; Dec. Dig. § 171.]
    11. Affidavits (§ 5) — Who may Take.
    An affidavit for change of venue, which was sworn to by accused attorney, could not be considered.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. § 5.]
    12. Criminal Law (§ 1092) — Bill of Exceptions — Filing—Change of Venue.
    Under Code Crim. Proc. 1911, art. 634, providing that an order denying a change of venue shall not he reviewed unless the facts on which it was based are presented in a bill of exception filed at the term at which the order was made, a statement of the evidence heard on the motion for change of venue, filed long after adjournment, cannot be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    13. Homicide (§ 268) — Assault to Kili>-Jury Question.
    Evidence held to authorize the submission of the question of assault with intent to kill.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 562; Dec. Dig. § 268.]
    14. Criminal Law (§ 1064) — Appeal—Motion for New Trial — Sufficiency of Statement of Grounds.
    The ground of motion for a new trial, alleging error in not charging a new article of Pen. Code 1911, art. 717, the substance of which is stated, without assigning any reason why it should have'been charged, is too general to authorize a review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    15. Homicide (§ 268) — Assault to Kili>-Deadly Weapon.
    Where the evidence described the knife used by accused and the manner and circumstances in which it was used, and one shown to be exactly like it was put in evidence, it was not error to permit the jury to determine whether the knife was a deadly weapon, though there was no evidence stating in terms that it was a deadly weapon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 562; Dec. Dig. § 268.]
    16. Homicide (§ 300) — Instructions—Self-Defense.
    An instruction in a prosecution for assault with intent to kill was not erroneous for requiring a finding that the assault was “not in his necessary self-defense, as hereinafter charged,” instead of that it was “not in defense of himself against an unlawful attack producing a reasonable expectation of death or serious bodily harm” ; the meaning of the two phrases being substantially the same.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630 ; Dec. Dig. § 300.]
    17. Criminal Law (§ 822) — Instruction— Construction.
    The instruction should always be construed as a whole.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    18. Criminal Law (§ 815) — Instructions Excluding Issues —Assault to Kill — Self-Defense.
    An instruction in a prosecution for assault with intent to kill, that if the jury believed that the accused was guilty of an assault, but had a reasonable doubt whether the assault was upon malice aforethought with intent to murder, then they should acquit him of that offense, and should consider whether he was guilty of an aggravated assault, did not eliminate from the jury’s consideration the issue of self-defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.]
    19. Criminal Law (§ 823) — Instructions.
    Error in an instruction defining manslaughter, in a prosecution for assault with intent to kill, inadvertently quoting literally the statutory language, in which an assault and batten' “by the deceased,” causing pain or bloodshed, was made an adequate cause, was harmless where the court also charged that if prosecuting witness had assaulted the accused, causing pain or bloodshed, and thereby rendered his mind incapable of cool reflection, etc., he would only he guilty of aggravated assault.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    20. Homicide (§ 282) — Assault to Kill — Jury Question — Adequate Cause.
    Evidence, in a prosecution for assault with intent to kill, held to make it a jury question whether the fights theretofore had between the parties were sufficient to constitute adequate cause, so as to reduce the offense to aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 574; Dec. Dig. § 282.]
    21. Criminal Law (§§ 763, 764) — Instruction — Weight of Evidence.
    The court instructed, in a prosecution for assault with intent to kill, that if accused cut prosecuting witness, and if a minute or two before at .a blacksmith shop witness had made one or more assaults upon the accused, which caused pain or bloodshed, such facts were sufficient in law to reduce the offense, if any, from assault with intent to murder to aggravated assault, and if the jury believed that accused’s mind was thereby rendered incapable of cool reflection, and that it was not sufficient time from the encounter at the blacksmith shop until the cutting for his mind to cool, etc., defendant would only be guilty of aggravated assault. The instruction as to the facts literally followed the evidence. Held, that the instruction did not charge as a matter of law that accused was guilty of assault with intent to kill.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    22. Criminal Law (§ 1090) — Bill Excepted.
    In the absence of a bill of exceptions to alleged improper argument of county attorney, .such argument cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. . §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    23. I-Iomicide (§ 257) — Assault to Kill-Sufficiency of Evidence.
    Evidence, in a prosecution for assault with intent to kill, held to sustain a conviction for the offense charged.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. § 257.]
    24. Homicide (§ 292) — Assault to Kill — Instructions.
    If the charge in a prosecution for assault with intent to kill defines assault and malice aforethought, and requires a finding beyond a reasonable doubt that the accused made an assault on the injured person with malice aforethought and intent to kill, it is ordinarily sufficient ; no particular form of instructions being required.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 597, 598, 600, 601; Dec. Dig. § 292.]
    Appeal from District Court, Jack County; J. W. Patterson, Judge.
    J. P. Luttrell was convicted of an assault with intent to kill, and appeals.
    Affirmed.
    E. W. Nicholson and W. E. Fitzgerald, both of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No.'Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

This is the second appeal in this ease. The other is reported in 143 S. W. 628. This trial resulted in the conviction of appellant for assault with intent to kill, and the lowest penalty was assessed against him. The general features of the case are shown by the former report thereof. The ease this time was tried in accordance with the former opinion, and the errors there pointed out were corrected and avoided. The case seems to have been more fully and better developed on this trial. The testimony, as shown by this record, in several particulars is quite different from that reported on the other trial. We will therefore state the leading features of the testimony as shown by this record on this trial.

The name of the assaulted party was clearly shown to be, as alleged in the indictment, Edward Oscar Williams. For some time before this offense was charged to have been committed appellant and Williams were good friends, near neighbors, and were frequently together. They were both married men and had families. A few days before this difficulty, which occurred on December 21, 1910, both parties had been drinking considerably, appellant more than Williams, and appellant had been quite drunk. It seems they were both, more or less, drinking at the time of the difficulty. Williams had sold appellant some seed cotton, and also a few days before had picked cotton for appellant. Appellant owed him for this cotton and for picking cotton. On the morning of the difficulty they had together hitched up a wagon, using as a team one horse of each of them, and had carried this cotton to a little town a few miles from where they lived, and just after dinner appellant sold it in the seed to a gin man in payment of which the gin man had given appellant a check for the full price. Appellant and Williams went' together from the ginner to a merchant in the little town, and this merchant cashed the check, paying appellant the full amount thereof in money. Williams was with appellant at the time. As soon as appellant was paid the money he paid Williams for the cotton that he had bought from him, but did not pay him what he owed him for picking. They left the store and went out in the town somewhere, or at least, went out of the store. Some little time after this Williams called appellant’s attention to the fact that he had only paid him for the cotton, but had not paid him for ■ the picking and owed him therefor. It seems that this amount was $1, though it is stated by some to have been $2. When Williams told appellant that he had not paid him what he owed him for the picking, appellant claimed that the merchant who cashed the check paid him at the time he cashed the check. Williams denied this. It seems that then both parties became irritated somewhat over this dispute. Appellant proposed to go back to the merchant and prove it by him that he (the merchant) had paid Williams what appellant owed him for the picking; ■ that thereupon together they went back to the merchant. Appellant asked the merchant if he (the merchant) had not paid Williams what he (appellant) owed him for picking at the time he cashed the check. The merchant stated that he had not, but that he had paid all the money to appellant, and that appellant then himself paid Williams whatever was paid. This seems to have been $16 and perhaps some cents. At any rate, both of the parties became somewhat more irritated at the turn of affairs. They then again left the store, still disputing about this payment. Williams went to the team, started hitching it up with the view of going home. Appellant did not then want to go home, but instead went across the main street or road-of the town some 60 to 80 yards from said store to a blacksmith shop, he says, to get more whis-ky.' Williams then also went over to the blacksmith shop, if not in actual company with appellant, immediately following him. Other parties were along with one or the other of them also. When they reached the blacksmith shop the question of the payment for the picking again arose. At the time of the dispute at the store about the payment for the picking, there were several other persons present. One of these testified that appellant then remarked: “ T, God’ or ‘By God’ — something like that — T will scrap him over it’ ”; that is, he would scrap Williams before he would pay him for the picking. When they reached the blacksmith shop the trouble was continued. Williams said to appellant: “I will just give you that dollar.” Appellant says: “No, you won’t. I don’t want your money.” Williams said: “Yes, you do. I will give you the dollar.” Appellant said: “No, you won’t. I won’t have it.” Williams said: “It looks very much like it the way you are talking.” Appellant then said: “You are a G- d- liar.” Williams then hit him, and they went to fighting. This remark, as stated by this court in the recent case of Nickerson v. State, 154 S. W. 992, not yet officially reported, was such “that any sane man knows well would provoke a difficulty, if the party to whom it is addressed has any manhood about him.” They fought around at this time until Williams got him down on the ground and was hitting him in the face. Appellant holloed to those who were present, several being present, asking them to please pull Williams off of him. Two of the bystanders asked Williams to get off of him and not beat him any more, which Williams voluntarily did. He was not forced off of appellant, nor pulled off of him. As soon as appellant got up he began looking for something with which to strike Williams and found and picked up a good big piece of plank three or four feet long and struck Williams therewith. Williams, in order to ward off the force of the blow of the plank, ran towards appellant so that the plank struck him on the shoulder about midway and broke. They began fighting again, and fought around for some time until they again got upon the ground. Which threw the other, is not made clear. Williams landed on top and began fighting appellant again, each doing what he could against the other. Appellant again called to the bystanders, begging them to take him off. Williams asked him if he would get off of him, would he (appellant) quit and let him alone. Appellant expressly stated that he would do so. Thereupon Williams again got off of him and desisted from fighting him or beating him. As soon as appellant got up again he got out his knife to again attack Williams, when the bystanders interfered, caught his hand, and took the knife away from him. Appellant then proceeded again to hunt something with which to strike Williams. Williams in the meantime started away from him back towards the wagon. Appellant finally picked up a large rock and attempted to assault Williams with it. The bystanders again interfered and took the rock away from him. In the meantime Williams, with another friend, was leaving the blacksmith shop and had gotten some distance therefrom, nearly to the wagon. His back was towards the blacksmith shop and towards appellant. Appellant had two pocketknives with him. The first one with which he attempted to assault Williams, and which was taken away from him, was a little penknife belonging to his wife, which he had procured that morning before leaving home. But while he was at the store, after cashing the check by the merchant, he had borrowed another pocketknife from the merchant, and had that with him at the time this fight occurred. While Williams was going to the wagon, accompanied by. one of his friends, appellant got out this borrowed pocketknife, opened it, and started after Williams again. Several parties saw him open and have the knife in his hand, and saw that he was pursuing Williams; they thereupon holloed to Williams that appellant was after him with a knife and to look out. Williams knew nothing of this until thus warned; when thus warned, appellant had gotten within a few steps of him, and Williams turned, facing appellant, with the intention of protecting,' and attempted to protect, himself from the renewed assault by appellant upon him with the knife, and perhaps struck at him for that purpose. Appellant, however, succeeded in avoiding his lick, if one was struck at him, immediately seized Williams around the neck with his left hand and arm, and held him fast therewith while with the pocketknife in his right inflicted two most serious wounds upon the body of Williams. Williams’ right side was rather towards appellant when appellant had him grasped around the neck. Appellant stuck the knife in Williams’ left side and cut a gash clear around towards the front of his body, just below his heart, clear into the hollow; then stabbed him again in his left breast, just a little higher than the first stab and cut. The bystanders were trying at this time to prevent appellant from cutting Williams, and at last, after he had stabbed him twice, succeeded in getting hold of his right arm and pulling him away from Williams, and tried to take the knife from him; or make him give it up, which he refused to do after repeated demands by bystanders, and never did give it up to anybody. The doctor who was called in to attend Williams testified that the first stab and cut was in Williams’ left side between the sixth and seventh ribs; that it commenced right by the side or back, around towards the backbone, and came around towards the front or breastbone; that it was eight' or nine inches in length, right near the diaphragm that separates the bowels from the heart and lungs, and right below the heart; that it was cut through between the ribs right into the cavity, and he could see Williams’ heart and pulse through this wound. It did not touch the heart, but was just below it. The other cut was just a little above that one, but only went through the flesh and was a few inches long. It did not go as deep and was not as long as the other. The wounds were very serious. Williams was confined to his bed and the doctor attended him many days, and up to the time of this trial, which commenced on March 11, 1912, Williams had not entirely recovered from the effect of his wounds. Immediately after this cutting and stabbing of Williams by appellant, appellant took his horse from the wagon, got on him and immediately left the town. I-Ie went a few miles and traded off this horse for a better and fled the country. I-Ie could not be found by the officers, and was not arrested until several months afterwards when he was found and arrested in one of the eastern counties of the state. Appellant was a much larger and stronger man than Williams. Williams then weighed 138 pounds, and was five feet and nine inches tall; appellant weighing 185 pounds and was six feet tall.

Appellant testified, and had other witnesses corroborating him, that a few days before this difficulty, while he was drunk, he attempted to ride a wild horse, and was thrown therefrom two or three times; that his left shoulder was injured by these falls and rendered his left arm somewhat useless. Williams testified that appellant’s shoulder and arm were not injured by this fall, and the state also introduced several other witnesses, strongly tending to show that appellant’s arm and shoulder were not injured by such fall. Appellant also testified that one object, or his object, in following Williams from the blacksmith shop was that he thought Williams would hitch up the wagon, go off and leave him, and make him walk home, and that he took out his knife, opened it, and went towards Williams for the purpose of protecting himself if Williams attacked him again. The evidence all shows that appellant was incensed at Williams and mad from the time the dispute first arose about whether he had paid Williams for picking said cotton or not. The great preponderance of the evidence, and all of the circumstances, show that appellant was in the wrong and the aggressor from start to finish. The only time Williams could be claimed to be the aggressor was when he first struck appellant when appellant called him a G-d-liar. This was not an attack by Williams upon appellant, but, as stated above, necessarily called for a blow from Williams and provoked him. The evidence in this trial in no way shows that Williams ever struck and knocked appellant down but it does show that in the fight Williams struck him in the face and made the blood come and the blows caused appellant pain.

Appellant, in a very defective bill, complains that the court erred in refusing his challenge for cause of a juror. To take the bill as a whole it shows that the juror was a qualified juror, and that appellant had no challenge for cause; but, even if the juror was subject to challenge for cause, and the court was wrong in not sustaining it, yet, the bill does not show that this juror or any other who was disqualified served on the jury, and it does not show that any juror who was not a fair and impartial juror served on the jury.

This court in Oats v. State, 149 S. W. 1195, said: “The rule now seems to be well settled that, unless a juror is legally objectionable who sat upon the case, prior rulings of the court in regard to the competency of the jurors will not afford ground for reversal,” citing a large number of cases so holding; and then says: “This rule has been so long settled it is deemed unnecessary to discuss it further.”

The whole of another bill by appellant is as follows: “The prosecuting witness, Edward Oscar Williams, testified for the state. Said, in substance: On the day of the cutting the defendant sold his cotton and had a settlement, and the gin man wrote a check for it, and he went up to get the money, and ‘he owed me $16 out of that, besides the cotton picking, and after Edmonson paid him, he turned around and paid me, and I mentioned this cotton picking to him and it made him mad.’ Defendant objected to the statement that ‘it made him mad’ as a conclusion; that the witness should state what was said. Witness: ‘X don’t remember what he said.’ The court overruled the objections, and to such ruling and action of the court the defendant then and there excepted, and now tenders this bill and asks that it be approved and made of the record in this case and it is done.” Every' other bill in this case is just as meager and clearly as deficient as this bill. Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and authorities there cited. This court, in the former opinion in this case, called attention to defective bills of exception presented on the other trial. Even if we could review this question, the evidence was clearly admissible. Powers v. State, 23 Tex. App. 64, 5 S. W. 153; Harris v. State, 62 Tex. Cr. R. 240, 137 S. W. 373; section 1093½, subdiv. 2, p. 704; White’s C. C. P. and 3 Ency. Digest Crim. Cases, pp. 204, 205.

Another bill, complaining of the asking of what is claimed. to be a leading question, shows no error. Carter v. State, 59 Tex. Cr. R. 75, 127 S. W. 215.

No error is shown in the next bill, complaining that the court sustained an exception by the state to the appellant’s manner of asking the complaining witness some questions. The bill is entirely too defective to require us to review it' It does not show what answers the witness would have given, nor what the testimony would have been which was excluded.

The next bill does not show that the question asked was a leading question. The testimony was admissible, and the bill in no way shows error.

The next bill complains that the witness who was assaulted and cut could not testify to his condition from the effects of the wounds inflicted upon him by appellant, in stating: “I can’t straighten up good; it pulls that cut, growing together. Part of it pulled loose inside. The strifen is dropped. It is broke loose here right close to my heart.” Clearly this evidence was admissible.

The next bill complains in the same imperfect way that one of the witnesses to the difficulty testified that immediately after appellant had cut Williams, he saw Williams standing, and that he had to help him; that he didn’t pick him up and carry him, but he assisted him from the scene of the difficulty to the witness’ house, where he was carried. This was a part of the transaction and clearly admissible, even if we could consider'appellant’s bill.

It being a disputed point whether appellant’s arm or shoulder had been so injured by his being thrown from a horse a few days before as to render his arm, at the time of the difficulty, so that he could not use it, and he denying that the day before he had used an ax with his hands, broke open a salt barrel, got salt out of it, and carried a part of it home on his shoulder, it was clearly admissible to prove these facts by Mrs. Williams, the mother of the injured party, for the purpose of impeaching appellant and neither of two bills on this subject shows any error whatever. Also it was proper to prove appellant’s evidence on a former trial which disputed his evidence on this on a material point which he denied.

We give another one of appellant’s bills in full. It is: “On voir dire 36 or more men were examined for jury service in this case. Challenges for cause were made and sustained until only 24 men remained, and the court thereupon directed challenges to be made from said list of 24 men, to which the defendant objected and requested a full panel. The court overruled the objection, and required counsel to challenge from said list of 24 men. Defendant excepting, and the challenges were made, the state striking 6 men from the list and the defendant striking 8, and the first 12 men remaining were impaneled to serve as the jury in this case, to all which the defendant then and there excepted, and now tenders this bill and asks that it be approved and made of record in this case, and it is done.” This bill requires no review by this court. Even if it did, it presents no error whatever, as shown by the case of Oats v. State, supra, and authorities therein cited.

Even if presented in such way that we could consider it, the only other bill of appellant, complaining that the assaulted party, Williams) testified that at the blacksmith shop appellant was growling and cursing at the time and just before their first fight, shows no error. Said evidence was clearly admissible.

Appellant filed a motion in the court below for a change of venue. The affidavit of appellant therefor, as well as the supporting affidavits, was sworn to before his attorney. Under the uniform ruling of this court, this did not authorize or require the court to consider it, as has many times and uniformly been decided by this court. Maples v. State, 60 Tex. Cr. R. 169, 131 S. W. 667; Patterson v. State, 63 Tex. Cr. R. 310, 140 S. W. 1128. However, the court did hear it and heard evidence thereon.

The term at which this case was tried convened on March 4th and adjourned on March 16, 1912. A statement of the evidence so heard was not filed in the court below until April 26, 1912, long after the adjournment. It has been the uniform holding of this court that such statements cannot be considered when filed after the adjournment of the court, with or without an order of the court authorizing it to be done. Article 634, C. C. P.; Gibson v. State, 53 Tex. Cr. R. 349, 110 S. W. 41; Adams v. State, 35 Tex. Cr. R. 285, 33 S. W. 354; Wright v. State, 40 Tex. Cr. R. 447, 50 S. W. 940; Cortez v. State, 43 Tex. Cr. R. 375, 66 S. W. 453; Bink v. State, 50 Tex. Cr. R. 445, 98 S. W. 863; Dobbs v. State, 51 Tex. Cr. R. 113, 100 S. W. 946.

Appellant has many complaints, in his motion for a new trial, to various words, sentences, and paragraphs of the court’s charge. We have carefully considered all of these, and none of them present any reversible error. The court gave a full, fair, and complete charge on every issue raised in the case, and applied the law to the evidence adduced. He correctly defined an assault, an aggravated assault, malice, and submitted correctly the case to the jury on the question of assault with intent to kill, strictly in accordance with the law and the evidence. He then correctly told them what would constitute manslaughter. He gave appellant’s special charge on self-defense, just as requested by appellant, submitting the question for a finding by the jury on an aggravated assault on every theory raised by the evidence, charging on cooling time and on reasonable doubt between the degrees of the offense, presumption of innocence, and reasonable doubt.

One of appellant’s complaints is that the court erred in submitting to the jury the question of an assault with intent to kill at all, claiming that the evidence did not justify it. We have carefully considered all of the evidence, and clearly, in our opinion, the evidence did raise the question and the court properly submitted it, and the evidence is amply sufficient to sustain the verdict so finding.

His complaint'that the court erred in the main charge in not submitting self-defense presents no error, because, even if the court did purposely or by oversight omit it, he gave appellant’s charge on the subject just as asked by appellant.

The third ground of appellant’s motion for new trial is: “The court erred in his charge to the jury in not giving in charge to the jury article 717 of the Penal Code”— then states the substance of this article without assigning any reason or specification why this should have been given. This is entirely too general to present the matter to this court for review, as held uniformly by this court. Byrd v. State, 151 S. W. 1071, and cases therein cited; Ryan v. State, 142 S. W. 883; Berg v. State, 142 S. W. 886; Mansfield v. State, 62 Tex. Cr. R. 631, 138 S. W. 591; Luster v. State, 63 Tex. Cr. R. 548, 141 S. W. 209, and the various cases cited in the above decisions. However, we think the charge of the court, in the various phases submitting the case, substantially and sufficiently comprehended and embraced the effect of this article of the Code.

The court charged and fully defined what was a deadly weapon, as has many times been approved by this court and the Supreme Court. Skidmore v. State, 43 Tex. 93; Kouns v. State, 3 Tex. App. 13; McReynolds v. State, 4 Tex. App. 327; Briggs v. State, 6 Tex. App. 144; Wilson v. State, 15 Tex. App. 150; Branch’s Crim. Law, § 83, wherein he cites Hardy v. State, 36 Tex. Cr. R. 400, 37 S. W. 434; Tollett v. State, 55 S. W. 335; Wilson v. State, 37 Tex. Cr. R. 159, 38 S. W. 1013.

The knife with which the injury in this case was inflicted was described generally as a small pocketknife, with a handle “something like” 2% inches long. While the identical knife with which the injury was inflicted was not produced, one which was shown to be exactly like it was produced, identified, and introduced in evidence before the jury. They saw it, and with the manner of its use could as well tell, under the circumstances of its use in the hands of a large, powerful man as appellant was shown to be, whether it was a deadly weapon, without any witness specifically stating that it was or was not a deadly weapon, and, by the manner and extent of its use on a most vital part of the body, appellant’s intent to kill. Crutchfield v. State, 152 S. W. 1057, 1058; Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Branch, Cr. Law, § 516, and cases cited by him.

The court fully and correctly defined malice, then submitted the case for a finding on this issue as follows: “If from the evidence you are satisfied beyond a reasonable doubt that the defendant, J. P. Luttrell, on or about the time charged in the indictment, in the county of Jack and state of Texas, on or about the 21st day of December, 1910, with a deadly weapon, or instrument reasonably calculated and likely to produce death or serious bodily injury from the manner in which it was used, and with malice aforethought, did assault the said Edward Oscar Williams with intent then and there to kill and murder him, by the means charged in the indictment; and if you are further satisfied by the evidence and beyond a reasonable doubt that said assault (if any) was not made under the immediate influence of sudden passion, produced by an adequate cause (as the same is hereafter explained to you in these instructions), or not in his necessary self-defense as hereinafter charged upon, then you will find the defendant guilty of an ‘assault with intent to murder,’ and so say by your verdict.” There was therefore no error on this question as complained by appellant in the sixth ground of his motion for new trial, claiming that there was no testimony showing that said instrument was a deadly weapon, or an instrument reasonably calculated and likely to produce death from the manner in which it was used; nor was there any error in this charge as further complained in this ground of his motion in that, instead, as stated by the court therein, “or not in his necessary self-defense as hereinafter charged,” he should have given, “and not in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury.” There is no material difference in this language, especially as the court gave appellant’s special charge on self-defense exactly as requested by him. Taking the charge as a whole, which must always be done, appellant’s said complaints point out no error.

It is elementary that the whole charge of the court must be considered when complaints are made of any specific portion thereof, or a few words or a sentence therein, so that there was no error in the following paragraph of the court’s charge: “If you believe from the evidence that the defendant is guilty of an assault, but have a reasonable doubt as to whether such assault was upon malice aforethought, with intent to murder (as herein explained to you), then you will acquit him of that offense, and next consider whether he is guilty of an aggravated assault” — for the court did not thereby eliminate from the consideration of the jury appellant’s self-defense. As stated above, the court fully submitted appellant’s self-defense in a special charge just as requested by appellant, and told them that if he committed this assault and battery in self-defense to acquit him. And, besides, in submitting to the jury the question of aggravated assault, he did so in accordance with the law as applied to the evidence in this case, and specifically therein told them they could not convict him, even of aggravated assault, if such assault was in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury. Again, in another paragraph of the charge, he plainly told the jury that if they believed, beyond a reasonable doubt, appellant was guilty of either an assault with intent to kill, or an aggravated assault, and they had a reasonable doubt of which it was, they would give him the benefit of it, and not find him guilty of a higher offense than aggravated assault. And further charged that the defendant is presumed to be innocent until his guilt is established by legal evidence, beyond a reasonable doubt; and in case they had a reasonable doubt as to his guilt to acquit him, and say by their verdict not guilty.

The court defined manslaughter as prescribed by the statute, and specifically told them therein that an assault and battery causing pain or bloodshed was an adequate cause, but in so stating the statute, quoted it literally: “An assault and battery by the deceased, causing pain or bloodshed.” In submitting this question to the jury, however, he charged: “If the defendant did assault and cut said Edward Oscar Williams with a knife, and if, just before he did so, the said Williams had made an assault and battery upon the person of the defendant, causing pain or bloodshed, and if thereby the mind of the defendant was rendered incapable of cool reflection, as hereinbefore explained, or if, in connection with said assault and battery (if any) upon the person of the defendant, causing pain or bloodshed, together with all the facts and circumstances in the case (if any), the mind of the defendant was rendered incapable of cool reflection, and if, in this state of mind, he assaulted and cut the said Edward Oscar Williams, and if he was not justified in so doing, he would not be guilty of any higher offense than aggravated assault; or if you find and believe from the evidence that if the defendant had killed the said Edward Oscar Williams when he assaulted and cut him (if he did so assault and cut him) the killing would have been manslaughter as hereinbefore defined, the defendant would not be guilty of a higher offense than aggravated assault. In determining whether or not adequate cause existed, sufficient to render the mind of the defendant incapable of cool reflection, you will consider all the facts and circumstances in evidence in this case; and in this connection you are charged that any condition or circumstance capable of creating, and which does create, sudden passion, such as anger, rage, resentment, or terror, rendering the mind for the time being incapable of cool reflection, is adequate cause.” So that the jury could not have been misled by the court in defining manslaughter, quoting the statute and using the word “deceased” where it was used.

Neither did the court err in not telling the jury as a matter of law, as claimed by appellant, that the fights or assault and battery at the blacksmith shop, taken together with the assault and battery at the time appellant stabbed and cut Williams, as shown in law, constituted adequate cause, but the court properly submitted this question with all of th.e facts and circumstances to the jury for them to determine whether or not all these things were or not adequate cause.

Appellant, in this and in the. previous trial, claimed that the court should submit the question of cooling time. This court in the previous appeal in this case held that the court below erred in not charging on cooling time. The record in this case shows that in this trial appellant urged that this should be done, and the court, in compliance therewith, did charge on cooling time. And on this point charged the jury: “If you believe from the evidence that the defendant did assault and cut said Edward Oscar Williams, and if you further believe that a minute or two before, at the blacksmith shop, the said Edward Oscar Williams had made one or more assaults upon the person of the defendant that caused pain or bloodshed, you are charged that these facts are sufficient in law to reduce the offense (if any) ■ from assault with intent to murder to aggravated assault; and, if you believe the mind of the defendant was thereby rendered incapable of cool reflection, and if you further believe that there was not sufficient time, from the encounter at the blacksmith shop until the cutting occurred (if it did occur), for the mind of the defendant to become cool and deliberate, or for such anger, rage, sudden resentment, or terror, to subside, and for reason to resume its sway, in such case the defendant would not be guilty of a higher offense than aggravated assault” As stated above, the court, having fully submitted appellant’s self-defense in his charge just as requested by him, and it being necessary to look to the whole charge when a given paragraph is attacked,, this charge on cooling time did not eliminate appellant’s self-defense, as claimed by him in an attack on this charge, nor did the court, as claimed by him, place the time between the fights at the blacksmith shop and the assault, when appellant stabbed and cut Williams, at double the time as stated in the charge above quoted, “if you further believe that a minute or two before, at the blacksmith shop,” etc. The charge of the court literally followed the testimony on this point. Nor did the court by this charge, in substance or effect, tell the jury, as a matter of law, that appellant was guilty of an assault with intent to kill.

All of appellant’s special charges which were refused when proper were fully and sufficiently covered by the main charge of the court.

There is no bill of exception to the claimed argument of the county attorney, and without this no error is shown by the court’s refusal to give appellant’s special charge, complaining of one short sentence of the county attorney’s argument. Even if he used this expression, there is no reversible error in his doing so.

The evidence was amply sufficient to sustain the verdict. The jury inflicted the lowest punishment prescribed by law. There is therefore nothing in appellant’s contentions that the evidence was insufficient to sustain the verdict of the jury.

As said, by Mr. Branch in his Criminal Law of Texas, § 518, p. 340, of a charge in this character of offense: “No particular form of charge is required. If charge defines assault and malice aforethought, and requires the jury to find beyond a reasonable doubt that defendant made an assault on alleged injured party with malice aforethought and with the intent to kill, it is ordinarily sufficient. White v. State, 34 Tex. Cr. R. 155 [29 S. W. 1094]; Farrar v. State, 29 Tex. App. 254 [15 S. W. 719]; Hooper v. State, 29 Tex. App. 617 [16 S. W. 655]; Riojos v. State, 55 S. W. 172; Williams v. State, 38 Tex. Or. R. 145 [41 S. W. 626]; Henry v. State, 54 S. W. 594; Moseley v. State, 70 S. W. 546.” All this having been done, and the evidence amply sustaining the verdict of the jury, the case will be affirmed.  