
    WALLER v. STATE.
    (Court of Criminal Appeals of Texas.
    March 27, 1912.)
    1. Homicide (§ 257) — Assault with Intent to Kill.
    A state’s witness testified that while he was walking down the road, directly behind accused, after accused had called him out of the house, accused turned and told him he was going to kill him, and began to cut him with a knife, when witness clinched accused, and held the hand in which accused had the knife, and that a third person intervened and stopped the fight, after they had fallen. Held, that a conviction for assault to murder was authorized, if the evidence were believed.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. § 257.]
    2. Assault and Battery (§ 92) — Aggravated Assault.
    Accused claimed that' he called the assaulted person out of his house to ask for an explanation of letters received by accused’s wife, which he believed were written by the person assaulted, and that the latter admitted that he wrote the letters, and asked accused what he was going to do about it, when accus- . ed struck him, and that the latter reached for his knife, and accused also then began cutting. Held, that accused was guilty of aggravated assault.
    [Ed. Note. — Eor other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. § 92.]
    3. Criminal Law (§ 1105) — Bill of Exceptions — Approval by Trial Judge.
    To warrant consideration of a bill of exceptions which is incorporated in the statement of facts, the judge’s approval of the statement must certify that the bill of exceptions reserved therein was approved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2887-2889; Dec. Dig. 1105.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Lee Waller was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    E. Campbell, of Livingston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section. NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of assault with intent to murder; his-punishment being assessed at two years’ confinement in the penitentiary.

The state’s case substantially is that the-defendant went to the house of a neighbor, where the injured party, Thomas Hicks, was-at the time stopping. Upon reaching the house, appellant called for Hicks. Hicks was eating at the time, and sent him word he would be out in a moment, when he finished his dinner. He went out to the front steps,, where appellant was located, and appellant called him to one side and said he wanted to see him. Hicks testifies, after going a short distance, walking behind appellant, that appellant turned upon him and informed him he was going to kill him, and proceeded to cut him with a knife. As soon as-appellant did this, he sought to protect himself, clinched appellant, and held his right hand, in which he had the knife, so he could not further use it. In the struggle they fell, with appellant on top; that parties observing the difficulty from the house, rushed out, three or four in number, and stopped it. Appellant’s theory was that he called Hicks out for the purpose of asking an explanation with reference to some letters he says were received by his wife, which he believed Hicks had written; that Hicks practically admitted he did write the letters, and asked him what he was going to do about it; that he then struck Hicks, and Hicks reached for his knife, and he (appellant) began cutting him. Hicks denies writing the letters, and denies stating to appellant that he wrote the letters. He said nothing of this sort occurred between them. These letters were introduced in evidence, but are not in the record. There is a statement in the statement of facts to-the effect that the letters had been misplaced and could not be incorporated in the transcript. There was no evidence to show that the letters were in the handwriting of Hicks. They were not signed by anybody. After the separation of the parties, and Hicks had been carried to the house, as one of the witnesses states, “with his guts cut out,” a little boy picked up a knife at the scene of the trouble. This was a small pearl-handled knife, closed. Hicks said the knife belonged to him, and he had it in his vest pocket, and it must have fallen out during the struggle, and while appellant had him on the ground; that he did not take the knife out of his pocket, nor undertake to use it.

The court charged the jury with reference to assault to murder, aggravated assault, and simple assault. The contention of appellant is that the evidence is not sufficient to support the conviction for assault to murder. If Hicks’ testimony is to be believed, the jury was authorized to find him guilty of assault to murder. If the jury should have believed appellant’s testimony, the conviction should have been for aggravated assault.

During the trial appellant sought to introduce evidence to the effect that Hicks had been interfering with married negro women, at least with the wife.of one man, and that a Mr. Martin drove him away from a sawmill because of this fact. The court sustained the objection of the state to the introduction of this evidence. This is shown in the statement of facts. There was no separate bill of exception taken. The statement, of facts was filed subsequent to the term of the court and there is no certificate of the judge at the end of the statement of facts approving this bill of exception. Under the rule of practice established by this court recently, in order to have a bill of exception incorporated in the statement of facts considered, the approval of the statement of facts by the judge must certify that the bill of exceptions reserved therein was approved. This was not done in this cash, and therefore, under that rule, this matter cannot be revised.

Finding no reversible error in the record, the judgment is affirmed.  