
    LUTTRELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1912.)
    1. I-Iomicxde (§ 142) — 'Variance.
    There was a fatal variance where the indictment charged assault to -murder upon Edward Oscar Williams, while the evidence showed that the assault was upon Oscar Williams.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. § 142.]
    2. Homicide (§ 271) — Juey Question.
    It was error, in a prosecution for assault to murder, in which it appeared that the assaulted party was beaten considerably in the face, to .leave it to the jury to determine what was adequate cause, and whether the pain caused by the assault produced such passion as would reduce it to manslaughter, had the killing occurred, or, in the absence of death, to aggravated assault, when the statute expressly provides that an assault causing pain or bloodshed will be adequate cause.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 565; Dec. Dig. '§ 271.]
    
      3. Homicide (§ 309) — Instructions—Cooling Time.
    The evidence tended to show that but two or three minutes elapsed between the second assault by prosecutor on accused and the third difficulty, in which accused inflicted the injury relied on; and that in the' second difficulty prosecutor knocked accused down, and was beating him about the head and face wh.en he was taken off. Held that, in a prosecution for assault to murder, it was error not to charge on the question of cooling time. •
    [Ed. Note. — Eor other cases, see Homicide, Dec. Dig. § 309.]
    4. Homicide (§ 300) — Sele-Defense—In-structions.
    Testimony introduced by accused, in a prosecution for assault to murder, tended to show that there were three difficulties between him and prosecutor, and that the latter had given him two beatings at a time when accused was crippled, which prosecutor knew, and that prosecutor began the third difficulty by attacking and striking accused, when accused cut him. Held, that accused was entitled to a charge on self-defense.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§■ 614-632; Dec. Dig. § 300.]
    Appeal from District Court, Jack County; J. W. Patterson, Judge.
    J. P. Duttrell was convicted of assault to murder, and he appeals.
    Reversed and remanded.
    E. W. Nicholson and W. E. Fitzgerald, for appellant., C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases 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 to murder; his punishment being assessed at four years confinement in the penitentiary.

1. There»are several bills of exception that are too indefinite to be considered under our authorities. Appellant offered evidence which was rejected by the court. The object and purpose of the introduction of this evidence is not stated or shown by the bills. Some of the offered testimony, viewed in the light of the facts, if we could go to the evidence to consider it, ought to have been admitted on the theory of'impeachment. We mention this, so that if the matters occur upon another trial, as they did upon the one which resulted in appellant’s conviction, the testimony should go to the jury.

2. The indictment charges assault to murder upon Edward Oscar Williams. The evidence shows the trouble occurred between appellant and Oscar Williams. There, is nothing in the record to show that they are the same parties, or that if they are the same parties that he was commonly called Oscar Williams. As the matter is presented, this will constitute a variance. See Branch’s Criminal Law, § 621. The evidence is insufficient if the name of the injured party is not proved as charged in the indictment, either by evidence that he was known or called by that name, or that was in fact his name. Humbard v. State, 21 Tex. App. 208, 17 S. W. 126; Brown v. State, 53 Tex. Cr. R. 303, 109 S. W. 188; Tracy v. State, 48 Tex. Cr. R. 50, 85 S. W. 1056; Mayes v. State, 33 Tex. Cr. R. 33, 24 S. W. 421; Wolf v. State, 85 S. W. 8; Hankins v. State, 57 Tex. Cr. R. 152, 122 S. W. 21. This matter should not have been left in this condition. If it was a fact that Edward Oscar Williams was the name of the assaulted party, and he was commonly called Oscar Williams, this could have been shown; or, if his name was in fact as alleged in the indictment, this ought to have been shown. There are a great number of cases cited by Mr. Branch in his work on Criminal Law, in section 621, above cited.

3. Exception is reserved to the charge defining manslaughter and adequate cause as a basis for the charge upon aggravated assault. The court charged the jury in this connection: “You are instructed that any condition or circumstance capable of creating, and which does create, sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind for the time incapable of cool reflection, whether accompanied by bodily pain or not, may be adequate cause; and whether such adequate cause existed for such sudden passion, if any there was, it is for you to determine; and in determining this question, as well as all other matters before you, you will consider all the facts and circumstances in evidence in this case.” The evidence in the ease shows that the parties had been friends, and had a sudden falling out over a settlement, and this led to a personal difficulty. Williams, the assaulted party, knocked appellant down, and was beating him when pulled off by bystanders. The trouble was renewed, and he again knocked appellant down and beat him about the face and head, which produced pain and bloodshed, and also undertook to gouge or scratch his eyes. They were again separated, and Williams, in company with Mr. Olay,' started off. He went a short distance, and appellant followed along behind and overtook them. The trouble was renewed, and in that difficulty appellant used a knife, making a right serious wound. There were two versions of this difficulty. The state’s • theory was that appellant followed Williams for the purpose of doing what he did, and, perhaps, to kill him.o Appellant’s contention, supported by his testimony, was that he and Williams had come to town together in a wagon, and he thought Williams was going to hitch up the team and go away and leave him, and he was following along behind in order not to be left, and when he overtook the parties Williams made the third assault upon him, and he then used his knife. The knife is not what would be usually termed a deadly weapon; the blade being about 2 or 2% inches in length. It could be used as a deadly weapon, and the state’s contention was that in this instance it was so used, and for the purpose of killing. Appellant’s exception to the charge under this state of facts was that it left the jury to determine what was adequate cause; whereas the statute expressly enumerates that an assault which causes pain or bloodshed would be adequate cause, and the court was in error in leaving this for the jury to determine, instead of informing them it was adequate cause; further leaving them to determine whether or not it produced such passion as would reduce it to manslaughter, had the killing occurred, and in the absence of death, to reduce the punishment to aggravated assault. This proposition is a sound one under all the authorities. Gallagher v. State, 55 Tex. Cr. R. 50, 115 S. W. 46; Hightower v. State, 56 Tex. Cr. R. 248, 119 S. W. 691, 133 Am. St. Rep. 966; Scott v. State, 49 Tex. Cr. R. 386, 93 S. W. 112. These are among the later cases, and, we think, sufficient without further enumeration.

4. It is also contended that under the facts the court was in error in not charging cooling time. Under the facts above stated, we are of opinion this contention is correct. It had been but two or three minutes, or at least a very short time, intervening between the second and third difficulty. In the second difficulty, it was that Williams knocked appellant down, and was on him, beating him about the head and face, and trying to scratch his eyes. Appellant called for assistance, and Williams was taken off. Within a very short time — two or three minutes, perhaps, at the outside — the third difficulty occurred. There was sufficient time, and the facts would show that there was a cessation of the former difficulty and time elapsing between that and the third. If appellant was the attacking party in the last difficulty, then the time elapsing was too short to justify a failure to charge on cooling time. For this error, also, the judgment- must be reversed.

5. It is also contended that appellant was entitled to a charge on self-defense. Under appellant’s view of it, he did not bring on the third attack; that, he did not intend to engage in any further difficulty, but that his antagonist had just given him two beatings, and turned upon him and began to attack him and struck him, and he began using his knife on him. We are of opinion appellant was entitled, under these circumstances, to a charge on self-defense. He had just been knocked down and beaten twice. The antagonist showed himself to be a man of superior strength; and, besides, appellant’s testimony shows he had been thrown from a horse two or three days before, and his left arm hurt, so that he was crippled in it, and could not use it with any degree of effectiveness; and that Williams knew that fact, and was with him when he was thrown from the horse, and had assisted appellant on one or more occasions in dressing. In regard to this issue, we cite Hightower v. State, 56 Tex. Cr. R. 248, 119 S. W. 691, 133 Am. St. Rep. 966; McDowell v. State, 55 Tex. Cr. R. 596, 117 S. W. 831; Coleman v. State, 49 Tex. Cr. R. 82, 90 S. W. 499; Dent v. State, 46 Tex. Cr. R. 166, 79 S. W. 525; Patino v. State, 22 Tex. App. 586, 3 S. W. 766.

The judgment is reversed, and the cause is remanded.  