
    BREWER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1913.
    Rehearing Denied Feb. 19, 1913.)
    1. Criminal Law (§ 1124*) — Appeal and-Ebboe — Refusal of New Trial.
    Where tbe evidence on a motion for new trial, based on misconduct of jurors, was not in the record, a denial of such motion could not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.*]
    2. Criminal Law (§ 1099*) — Appeal and Ebbob — Statement of Pacts — Sufficiency.
    A statement of facts not filed below until after adjournment of the term, and not certified to in any way or agreed to by the attorneys or approved by tbe court, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    3. Homicide (§ 160*) — Assault with Intent to Kill — Evidence—Intent.
    In a prosecution for assault with intent to kill, evidence that on the same day, shortly prior to the difficulty wherein defendant stabbed another, he sought to secure his pistol from a repair shop, but failed to do so, was competent to show animus and intent.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 301; Dee. Dig. § 160.*]
    4. Homicide (§ 158*) — Assault with Intent to Kill — Evidence—Threats.
    In a prosecution for assault with intent to kill, evidence that defendant stated that, if the firm of which the assaulted party was a member did not pay a certain draft, it would cost them more than the amount of the draft, being in the nature of a threat, was admissible to show defendant’s animus. ,
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.*]
    5. Homicide (§ 157*) — Assault with Intent to Kill — Evidence—Cause oe Difficulty. •
    Where, in a prosecution for assault with intent to kill, it appeared that the difficulty arose from a dispute over an account between defendant and the firm employing him, and of which the assaulted party was a member, evidence of the details of the dispute, and that defendant inspected the book entries relating to the account, and that he was discharged, was properly admitted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 288-292; Dec. Dig. § 157.]
    6. Assault and Battery (§ 54) — Homicide (§ 89*) — Elements op Offense — Aggravated Assault — Simple Assault.
    Where a party, after forming an intent to commit an assault with his fists, is so confused by a blow that he uses a knife without knowing, what he is doing, he is not guilty of assault with intent to murder or of aggravated assault, but may be convicted of simple assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 75-78; Dec. Dig. § 54; Homicide, Cent. Dig. §§ 115-118; Dec. Dig. § 89.]
    7. Homicide (§ 114) — Assault with Intent to Kill — Self-Defense.
    A party, who has voluntarily agreed to fight, cannot successfully plead self-defense in a prosecution for assault with intent to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 153, 154; Dec. Dig. § 114.]
    8. Criminal Law (§ 1090) — Appeal and Error — Bill of Exceptions — Necessity.
    Matters complained of in a motion for new trial cannot be considered on appeal, when not presented by a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, -3204; Dec. Dig. § 1090.]
    Appeal from District Court, Denton County; Clem B. Potter, Judge.
    Arthur Brewer was convicted of aggravated assault, and he appeals.
    Affirmed.
    Sullivan & Hill and Owsley & Owsley, all of Denton, for appellant. C. E. Lane, Asst. Atty. Gen., H. B. Wilson, Co. Atty., Fred M. Bottorff, Asst. Co. Atty., and Emory C. Smith, all of Denton, for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PBENDERGAST, J.

Appellant was indicted for an assault with intent to kill, was convicted of an aggravated assault, and fined §500 and nine months’ confinement in the county jail.

By two bills, appellant complains that the court below should have granted him a new trial because of the claimed misconduct of some of the jurors. The bills clearly show that, in considering this matter, the court below heard evidence. What that evidence is is in no way made to appear by either of the bills or the record otherwise. We find with the file what was perhaps sought to be made a statement of the facts on that subject It was filed in the court below one month after the adjournment of the term át which appellant was convicted. It is not certified to be correct by even the court stenographer, and in no way does it purport to be agreed to by the attorneys, or approved by the court below. It cannot, therefore, be considered by us for any purpose. In order to be considered, as has uniformly been held by this court, such a statement of the facts must be approved and filed during term time, and, when not, cannot be considered by this court. Knight v. State, 144 S. W. 981, and cases there cited.

Appellant had been working for the assaulted party and his partner some length of time prior to November 14,1910. But they had fallen out, and his employers had discharged him, or claimed they had, on November 14, 1910, prior to the alleged assault on December 5, 1910. Hard feelings on that account, and the matters that brought it about, resulted between the parties. Some two weeks before the difficulty, appellant took a pistol to persons in the city of Den-ton, who did that character of work, for repairs, and left it there for that purpose. The difficulty that occurred between the parties was in the afternoon just after dinner. The state was permitted to prove by witnesses that appellant went to the persons, with whom he had left said pistol, on the same day, just shortly prior to the difficulty between the parties, for the purpose of getting it, and inquired if it had been repaired. As it had not been repaired, he was so informed, and he did not get the pistol. The court did not err in permitting this proof to be made. It was a circumstance to be considered by the jury to determine the animus and intent of appellant just shortly prior to the difficulty in which he cut and stabbed the assaulted party very severely.

Neither did the court err in permitting the state to prove that, after the trouble arose between the appellant and the assaulted party, where it was shown that appellant had drawn a draft on the said firm for which he was working, which they had refused to pay, and that, in seeing about trying to get the company to pay it, he said that, if they did not pay it, he would make it cost them more than $15, the amount of the draft. This character of testimony was clearly admissible for the same purpose as that shown above, and was in the nature of a threat against the assaulted party. See cases noted in White’s Ann. P. G. p. 449, and Branch’s Crim. Law, p. 308, § 479.

The evidence shows, or tends to show, that the trouble between appellant and the firm, of which the assaulted party was a member, arose out of the dispute between them as to whether or not they were in debt to appellant, or appellant had overdrawn his account with them, and out of the fact that, because they claimed he had overdrawn, they refused to pay his draft on them for $15. Appellant claimed that they were indebted to him, and demanded and insisted that they should pay the said $15 draft. They refused to pay it, and so stated to him. Appellant became angered at this, and at the time in substance told them that, if they did not pay his $15 draft, he would make it cost them a much larger amount. The court, therefore, did not err In permitting the state to prove that on this occasion, when appellant was in the place of business of the assaulted party, he and they went over their books for the purpose of ascertaining whether or not they were indebted to him, or he was overdrawn, and that they then told him that he owed the company $84.40, and from the books showed him that he was overdrawn with the company. It was out of this dispute between them, as well as of their discharge of him from their employment, that the difficulty and fight afterwards occurred. The court did not err, therefore, in permitting the state to make such proof.

Complaint is made of the fifteenth paragraph of the court’s charge, which is: “(15) If you find from the evidence that C. A. Whitehead struck the defendant on the head, aiid that the force of the blow was such as to addle the mind of the defendant so that the defendant did not know what he was doing, and that, while in such condition of mind, the defendant cut the said C. A. Whitehead, and that the defendant did not intend to cut the said C. A. Whitehead, you cannot convict the defendant of either an assault with intent to murder nor of an aggravated assault; but, as to whether he is guilty of a simple assault or not, you will determine under •other sections of this charge.” This charge was evidently given in response to the special charge requested by appellant, which the court refused, which is substantially in the same language as that given by the court, except that the refused requested charge required the jury to acquit appellant entirely instead of, as charged by the court, not to find him guilty of an assault with intent to kill or of an aggravated assault.

The court further, on the same subject in subdivision 20 of his charge, charged as follows: “(20) If you believe from the evidence that the defendant and C. A. Whitehead agreed to fight, and that said fight occurred in the carrying out of said agreement to fight, and that the defendant intended to fight with his fists, and did strike the said O. A. Whitehead with his fists, but that aft-erwards the said C. A. Whitehead struck the •defendant a blow which addled him, and that •on account thereof the defendant’s mind was so affected that he did not know what he was doing, and that he cut the said O. A. Whiteheaij. without any purpose to do so, or without knowing that he was doing so, then the defendant would only be guilty of a simple assault; and, if you so find, you will assess a fine against the defendant of not less than $5 nor more than $25.” These charges by the court were clearly in response to the evidence, and properly and fairly submitted all that was required, by the evidence, to the jury.

Complaint is also made of the eighteenth paragraph of the court’s charge, which is: “You are instructed that if you believe from the testimony that the defendant and C. A. Whitehead agreed to leave the office of the said C. A. Whitehead and go out of doors and fight, and if you further believe that said fight was directly caused-by, and was had in, the carrying out of an agreement to fight, then the defendant cannot resort to the law of self-defense as a defense, and you will find him guilty of some offense; the degree of which you will measure by other sections of this charge.” This charge was directly called for by the evidence in the case; the evidence clearly showingtthat appellant and the assaulted party left the office of the assaulted party, after the row began between them, for the purpose of fighting it out. The court followed paragraph 18, just above quoted, with the nineteenth paragraph, which is as follows: “If you believe that the fight was not the result of an agreement, or was not had in the carrying out of an agreement to fight, then the defendant’s right of self-defense, under the law, is unimpaired.” Then followed that with the twentieth subdivision, which has already been quoted above. The charge, taken as a whole, on this point clearly and properly presents everything that the evidence called for strictly in accordance with the evidence and the law applicable thereto. Bordeaux v. State, 58 Tex. Cr. R. 69, 124 S. W. 640; Howard v. State, 53 Tex. Cr. R. 378, 111 S. W. 1038; Christian v. State, 46 Tex. Cr. R. 50, 79 S. W. 562. It is needless to cite other cases.

There are some matters attempted to be complained of by the motion for, new trial which cannot be considered by this court, in the absence of a bill of exceptions presenting the same.

We have carefully considered all of appellant’s complaints; and, as there is no reversible error shown by any of them, the judgment will be affirmed.  