struggle, and just before the deceased stated that I said officer, who was with him at the time he he had thrown down the knife, I saw a white shot deceased. He testified: shining object fall on the ground. Of course, at the time, I did not know what it was, just simply saw it was a white object, and that it fell from some of the parties engaged in the scuffle, and it fell out in front of the buggy, that is, westward from the buggy, and very near the sidewalk. This all happened in Uvalde, Uvalde county, Tex., on the 12th day of September, 1912, and the deceased died some three or four days after that, in a hotel at Uvalde, Uvalde county, Tex. "Cross-examination: I can say that there was plenty of light there for me to see all that was going on. There was the street light right across the street at Rice's corner, and there was also some light coming from the lamps in Hollingsworth's drug store, and I could see everything that was going on, and I say positively that I saw a white object fall towards the west of the buggy. I do not remember that I testified before that I saw the knife fall east of the buggy, but, if I did, I got my directions mixed up. Yes, it is a fact that, up to the time that the deceased cut at Cobb on the sidewalk with the knife, no one had made any assault upon him, and no one had done or said anything to him to make him mad. Yes, it is a fact that he seemed mad about something, and it is a fact that he rushed up behind Henry Cobb as he was going away from him. Yes, it is a fact that this is the first that I knew that there was going to be any fight. Yes, it is a fact that I heard one of the Cobb boys say out in the street, after the deceased had already struck at Henry: 'Boys, somebody give me a club. He has a knife.' Yes, it is a fact that, at the time that the defendant grabbed hold of the deceased, he had already cut at Henry Cobb with the knife on the sidewalk, and had already cut at Henry Cobb out in the street, and, at the time he was seized hold of by the defendant, he was in the act of cutting at Walter Cobb with the knife. Yes, the defendant in this case was deputy sheriff of Uvalde county, at the time, and was also night watchman, and Will Watkins, who was with him at the time, was also deputy sheriff. "Redirect examination: No, I never heard either Will Watkins or the defendant in this case call upon the deceased to submit to arrest, and I never heard either one of them tell him that they were trying to arrest him. There was nothing whatever said about an arrest-just grabbed hold of him. But at the time that the defendant jerked the deceased down, I heard some one say. 'Look out, he has got a knife,' and then I heard some one say, 'I have handled lots of worse men than he is, many a time.'" The state introduced other witnesses who testified substantially as did Stapleton. The knife of the deceased was found after the shooting about where Stapleton said he saw it dropped. It was identified, produced on the trial, and introduced in evidence. Dr. Myrick testified that he was called to deceased immediately after the shooting and reached him very soon; that he was bleeding profusely from a gunshot wound, which entered his left side about three inches above the left nipple; the ball ranged downward and backward, and its exit was in his back, left of his kidney about 12 or 14 inches below the place of entrance; the wound was low the place of entrance; the wound was made with a large caliber pistol, and it was fatal. Deceased died therefrom a few days later. The appellant's side of the case is fairly "The shooting occurred in Uvalde, right in front of the Hollingsworth drug store, between 11 and 12 o'clock, on the night of the 12th day of September, 1912. At the time I was deputy sheriff of Uvalde county, and was also night watchman of the town of Uvalde; both of us being salaried officers. On that night, between 11 and 12 o'clock, the defendant and I were across the street from what is known as the Hollingsworth drug store corner, and we heard some loud wrangling, and heard some cursing, and heard some one whom we afterwards found to be the deceased, Morton Barnard, using the words, 'God damned!' and we got up and started across the street to see what the trouble was, and when we started the deceased was in sight of us, but just immediately after we started we heard footsteps going down the cement sidewalk in a western direction, and saw the deceased start towards the direction in which the steps were going, and he passed from our view, but we kept going, and we did not go upon the sidewalk for four or five seconds after the deceased disappeared. He came back into our view out into the street, and he made a run at Henry Cobb, and struck at him with a knife, and then turned and made a run at Walter Cobb and struck at him with a knife, and, just at the time that he was in the act of striking at Walter Cobb with a knife, the defendant in this case, Jim Moser, seized hold of him from the side, and pulled him backwards, and I was on the other side of him, and stepped between him and the Cobb boys. When the defendant in the case pulled him backwards, he very nearly jerked him down, and the right hand of the deceased struck the ground, and I saw in his hand at the time a large pocketknife with the blade open, and I said to the defendant: 'Look out, Jim! He has got a knife.' And the deceased immediately jumped up, and seized hold of the defendant, and caught himaround the neck, and hugged him up close to him, and began trying to cut him with the knife which was in his right hand, and they struggled around for a minute or so, and got up between the buggy wheels of the buggy which belonged to the Howard boys, which was there, and, after they had gotten up there, the deceased got Moser some way around the neck and throat, and pulled his head around to one side and up, and Jim said: 'Hit him, Bill! He is choking me.' And again repeated the words: 'Hit him, Bill! He is choking me.' In the meantime, I had seized hold of the right hand of the deceased in which the knife was, and the deceased was struggling with this hand, trying to get it loose, and trying to cut Moser with the open knife that he had in his hand, and when Moser said the second time to, 'Hit him, Bill! he is choking me,' it sounded like he was choked, and immediately, I have got one of the God damn sons of bitches the second after he said that, the deceased said: now.' Up to this time, Moser had never drawn his pistol, but the deceased had been trying to cut him with the knife, and, about the instant er's pistol come up and come around over the that the deceased made this remark, I saw Mosarm of the deceased in some way, and was fired, and at the time it was fired the muzzle of the pistol was right against the deceased and set his clothes afire, and at the time that it was fired they were both hugged together between the buggy wheels, very close to each other, and the defendant did not step back, and shoot the deceased, nor did he hit him with the pistol, and knock him down on his knees. When the shot was fired, both the deceased and the defendant turned loose of each other, and the deceased walked around to the west in front of the horse and buggy belonging to the Howard boys, and went up on the sidewalk, and his clothes were on fire myself put out the fire. Yes, at the very time that the shot was fired, the deceased had in his right hand an open knife, and was trying to cut the defendant with it, and he was surging this right hand forward in the direction of the defendant, and all the time he had the knife in his hand continually from the time that Moser took hold of him until the time that the shot was fired, but I do not know what became of the knife after the shot was fired. "Cross-examination: Yes, it is a fact that I had hold of the deceased from the time that Moser caught him, and from the time that he seized Moser around the neck until the shot was fired, and it is a fact that he had the knife in his hand all the time. I did not get up between the wheels of the buggy, but was standing on the outside of the wheels, holding his right arm. Just at the instant that the shot was fired, I let go his right arm, with one hand, and reached up and caught hold of the hand that was on Moser's throat, and gave it a jerk, and just as I did that Moser gave his head a jerk, and just at the instant that the shot was fired they came apart, but the two actions occurred at the same instant, but I never let go my hold of his right arm, the hand in which the knife was at any time after I got hold of it until the shot was fired. Yes, it is a fact that neither Moser nor myself called upon the deceased to surrender, and we did not even tell him that we were going to arrest him, nor tell him what we wanted; just seized hold of him, and the struggle began. "Redirect examination: At the very time that the defendant Moser seized hold of the deceased, he was in the act of striking at Walter Cobb with a knife, and there was not time to do or say anything; but during the struggle I heard Moser say to the deceased, 'Give me that knife, and the deceased said, 'I will give you nothing.' The court charged on murder in the second degree, manslaughter, self-defense, and · accidental killing. It presented in a fair, full, and apt way every question raised by the testimony and is subject to none of appellant's attacks upon it. [1] Appellant attacked various paragraphs of the charge, numerously. We deem it unnecessary to discuss them separately-except such as appellant mentions in his brief. In his first, he contends the court erred in not telling the jury that the witnesses Walter and Henry Cobb were not bound to retreat when attacked by deceased. This was wholly unnecessary. The testimony conclusively shows that they passed out of the difficulty entirely when appellant took hold of deceased, and they had nothing whatever further to do with the deceased, nor did deceased have anything further whatever to do with them. tween them so as to make them confusing is entirely untenable. Appellant's attack of various paragraphs committed in the trial of this cause. ROBERTSON v. STATE. (No. 3546.) (Court of Criminal Appeals of Texas. May 19, 1915. On Motion for Rehearing, June 23, 1915. On Second Motion for Rehearing, Oct. 13, 1915.) 1. BAIL & 66-RECOGNIZANCE ON APPEAL— SUFFICIENCY. A recognizance on appeal by one convicted of violating the local option law which recites the statute requiring that the punishment itself no specific offense and does not comply with must be stated is insufficient and requires a dismissal of the appeal. Dig. 88 279-283; Dec. Dig. 66.] On Second Motion for Rehearing. 2. CRIMINAL LAW 1133-APPEAL AND ERROR-REHEARING-MOTION. ments that appellant was deprived of a state- Law, Cent. Dig. § 2984; Dec. Dig. 1133.] Appeal from Rains County Court; J. B. Allen Robertson was convicted of violat ing the local option law, and he appeals. Affirmed on rehearing, Appeal dismissed. and another hearing denied. A. R. Cornelius, of Emory, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $25 and 20 days' imprisonment in the county jail. [2] His next complaint is that the court erred in not applying the law of retreat as to both the defendant and the said Cobbs. [1] The recognizance was in the sum of What we have said about the Cobbs above $250, "conditioned that the said Allen Robertequally applies here. The question of retreat son who stands charged in this court with was wholly inapplicable to any state of facts the offense of selling intoxicating liquor in this case, as shown by the two theories in violation of law, and who has been conof the case in the above stated testimony. victed of said offense in this court, shall apThe evidence clearly raised the issue of pear before this court from day to day and manslaughter and likewise self-defense. from term to term of the same," etc. The Both issues were fully and completely sub- recognizance is not in compliance with the mitted, wholly separate and distinct one from law. Selling intoxicating liquor in violation the other, by the court's charge, and appel- of the law recites no specific offense. That lant's complaint that there is a conflict be- general charge may have involved any sell ing of intoxicating liquors violative of the | before us without a statement of facts or law, and does not even refer to the fact bill of exceptions. There is therefore noththat the party was charged with violating ing before the court which can be reviewed the local option law, nor does it state the or discussed. punishment which was required by the statute. While the statute says that it is sufficient to recite that appellant was convicted of a misdemeanor and given the following punishment, yet if the recognizance, in the writer's opinion, would state the specific misdemeanor of which the party was charged and convicted sufficiently as required by the law, this might answer the requirements of the statute that it was a misdemeanor, provided the offense was a misdemeanor, but it requires further that the punishment itself must be stated. This recognizance does not comply with the law in these respects, and therefore is not sufficient. For that reason this appeal must be dismissed. In addition, however, we might further say that, so far as the record is concerned, there is no reason shown why the judgment should be reversed, in the absence of a statement of facts which does not accompany this record. The first ground of the motion for a new trial asserts that the verdict of the jury is contrary to the law and the evidence. The evidence, as before stated, is not in the record. The second ground complains of the refusal of the court to grant appellant's application for a continuance for a certain witness. There was no bill of exceptions reserved to this ruling of the court. The third ground of the motion was reserved to the refusal of the court to give special charge No. 1 asked by appellant. This charge may or may not have been required under the facts, but, as we have not the facts before us, it is impossible for us to review this question, even if the court had acquired jurisdiction. We mention these because the accused might supply a good recognizance and attach the jurisdiction of this court, although the one in the record is insufficient, but it would be useless, it occurs to us, to follow this procedure, unless there was some thing in the record that would justify a review of the questions presented. The appeal will be dismissed. On Motion for Rehearing. On a former day of this term the appeal herein was dismissed for want of a valid recognizance. Since the rendition of that opinion appellant has filed a sufficient recognizance, which reinstates the case upon the docket. The record is now before us on its merits. We noticed the fact in the former opinion that the record was in such condition, even had the jurisdiction of this court attached, the judgment would have to be affirmed. We notice again the fact that the record is The motion for new trial insists on three grounds: First, the verdict is contrary to the evidence; second, the refusal of the court to grant a continuance; and, third, refusal to give special charge No. 1. With reference to the first and third grounds it may be stated that we cannot review those matters for want of the evidence. There is nothing before us to indicate that the jury was wrong in their verdict, or that the charge was applicable to any situation presented by the evidence that would be favorable to appellant. In regard to the third ground it may be sufficient to state there was no bill of exceptions reserved to the ruling of the court overruling the application for continuance. The dismissal is set aside, and the judg ment is now affirmed. On Second Motion for Rehearing. [2] At a previous term of this court the judgment herein was affirmed. After the adjournment of the term, which occurred the latter part of June, appellant filed a motion for rehearing, because appellant has been deprived of a statement of facts and bills of exception by the trial judge without fault or neglect on the part of appellant or his counsel, and appellant represents to this court that he thought his attorney made and prepared a statement of facts, which was agreed to by the county attorney on 27th of October, 1914, and which statement of facts and bills of exception were immediately presented to the trial judge with the request to approve same, or prepare a statement himself, which said judge failed and refused to do, though requested to approve the same and return same to appellant's attorney so they could be filed with the clerk. Appellant further says that the trial judge arbitrarily held in his possession the statement of facts and bills of exception until after the time allowed for filing same, and refused to approve same. Therefore he asks this court to consider the matter. This statement is signed by counsel for appellant, but there is no affidavit made. This application is not sworn to; in other words, it is not sufficiently presented so that this court can act upon it. The judge makes no certificate, and in fact the unsworn statement by counsel is all that is presented to the court with reference to it. Under this showing we are not authorized to consider the statements in the motion, and in order to do so they must be verified in some way. The motion for rehearing therefore will be overruled. VOLLINTINE v. STATE. (No. 3635.) (Court of Criminal Appeals of Texas. June 25, 1915. On Rehearing, Oct. 13, 1915.) 1. CRIMINAL LAW 1932 FORMER JEOPARDY. Where defendant tried for murder was acquitted by a conviction of manslaughter, the issue of murder could not be submitted in another trial, though the court, in submitting manslaughter, might charge as to what constituted murder. [For other cases, see Criminal Law, Cent. Dig. §§ 366, 387, 389, 394; Dec. Dig. 1932.] 2. HOMICIDE 300-INSTRUCTIONS - SELFDEFENSE. In a trial for murder, where the issue of self-defense was raised, an' instruction that defendant, in exercising such right, could use only such degree of force as it reasonably appeared to him at the time and place was necessary to protect himself against unlawful violence, was erroneous. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. mm 300.] PRENDERGAST, P. J. Upon a trial for murder appellant was convicted of manslaughter and assessed the highest punishment. [1] In view of the disposition we make of this case, we will give no extended statement of the evidence. Unquestionably the evidence raised, and it was the duty of the court to submit, the issue of murder, and the court did not err in so doing. However, under the law, as appellant was acquitted of murder, of course, that issue cannot be submitted in another trial, although it may be proper for the court, in order to properly submit the issue of manslaughter, to inform the jury what is murder, as is frequently necessary to do when an accused is tried for manslaughter only. [2] By appellant's testimony alone self-defense was raised, and this issue, based on his testimony, was as favorably submitted in his behalf by the court's charge as the law 3. HOMICIDE 300-INSTRUCTIONS-THREATS. and facts would authorize. However, after Where the evidence in a trial for murder thus submitting the issue the court added raised the issue of self-defense based on threats, the refusal to submit it was error. thereto subdivision 14 as follows: [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. 300.] 4. HOMICIDE 47-MANSLAUGHTER -"ADE QUATE CAUSE." Adultery of the deceased with the wife of appellant was "adequate cause" which might reduce the homicide to manslaughter. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 71; Dec. Dig. 47. For other definitions, see Words and Phrases, First and Second Series, Adequate Cause.] 5. HOMICIDE 341-INSTRUCTIONS MANSLAUGHTER-ADEQUATE CAUSE. In a prosecution for murder, a charge on manslaughter that, if defendant believed that the deceased had improper relations with his wife, it would be adequate cause, was sufficient, and a failure to further charge that, if he believed that deceased had had improper relations with appellant's wife, such belief by him would be real to him, whether such relations existed or not, is not error requiring reversal. [Ed. Note.-For other cases, see Homicide. Cent. Dig. § 721; Dec. Dig. 341.] 6. HOMICIDE 181-EVIDENCE-LETTER. In a prosecution for murder, wherein defendant alleged as provocation that deceased had had improper relations with defendant's wife, the contents of her letter to deceased was inadmissible, but the fact that deceased received a letter from her and the registry receipt for it to which his answer to her was in reply was admissible. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 383-385; Dec. Dig. 181.] Prendergast, P. J., dissenting in part. Appeal from District Court, Tarrant County; R. B. Young, Judge. J. T. Vollintine was convicted of manslaughter, and he appeals. Reversed, and cause remanded. Baskin, Dodge, Baskin & Eastus, of Ft. Worth, and Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. In proper time appellant specially excepted to this. We think it clear under the author ities that this instruction under the facts of this case should not have been given. Branch's Crim. Law, § 451. [3] The court refused to submit a charge on self-defense based on threats. This was properly excepted to and the point saved, and appellant even requested a special charge on the subject. In our opinion, the evidence raised this issue, and the court erred in refusing to submit it. [4, 5] In the charge on manslaughter the court properly told the jury that adultery of the deceased with the wife of appellant was adequate cause. He further told them Ap that, if the defendant believed that the deceased had improper relations with his wife, this would constitute adequate cause. pellant complains of these charges in that the court should have gone further and told the jury as requested in his special charge, that if they believed from the evidence that appellant believed that deceased had had improper relations with appellant's wife on the occasions of their meeting at a certain place in Dallas and at a certain other place in Ft. Worth, or either, then such belief by him would be real to him, whether such improper relation was, in fact, had or not. We think it may have been proper to have given such an instruction under the facts of this case, but it is not such error as we think would justify a reversal. justify a reversal. However, it might be better for the court to embrace this matter in a proper charge on another trial. [6] In the opinion of this writer, the let- F. J. & C. T. Duff, of Beaumont, Coe & ter of appellant's wife to deceased, dated Coe, of Kountze, and Howth & Adams, of September 12, 1914, in view of appellant's Beaumont, for appellants. D. J. Harrison, testimony and the letter of the deceased in Dist. Atty., of Liberty, W. R. Blain, of Beaureply to appellant's wife, introduced in evi-mont, and C. C. McDonald, Asst. Atty. Gen., dence by him, was properly admitted in evi- for the State. dence. His Brethren, however, incline to the opinion that the contents of the letter should not have been admitted in evidence, but the fact that deceased received a letter from her and the registry receipt for it to which his answer to her was in reply was admissible in evidence. There is nothing else raised which presents any error or needs any discussion. Owing to the near approach of the adjournment of this court for the term and the press of many other matters, a full discussion of the questions decided is pretermitted. For the errors above pointed out, the judgment is reversed, and the cause remanded. On Rehearing. We think the original opinion, wherein we held the court on another trial should charge, as insisted by appellant, to the effect that, if appellant believed deceased had had improper relations with his wife, "then such belief by him would be real to him," is not correct, but the court's charge, as given, is sufficient. With this correction in the original opinion, the motion for rehearing is overruled. Ex parte SAPP et al. (No. 3659.) (Court of Criminal Appeals of Texas. June 23, 1915. Rehearing Denied Oct. 13, 1915.) 1. HABEAS CORPUS 113 ADMISSION TO BAIL-APPEAL-EVIDENCE, On appeal from an order denying admission to bail, the Court of Criminal Appeals will not discuss the evidence. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 114; Dec. Dig. 113; Appeal and Error, Čent. Dig. § 3400.] 2. BAIL 42-ADMISSION TO BAIL. Under Const. art. 1, § 11, all prisoners are to be admitted to bail, save when the proof is evident, not only that accused is guilty, but that the jury will, if they properly enforce the law, probably assess capital punishment. [Ed. Note.-For other cases, see Bail, Cent. Dig. §§ 139-144, 147-152; Dec. Dig. 42.] 3. HABEAS CORPUS 113-APPEAL-REVIEW -EVIDENCE. Where there was evidence warranting the conclusion, in habeas corpus, denying relator bail in a prosecution for a capital offense, that proof of guilt was strong, its order will be upheld on appeal. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 114; Dec. Dig. 113; Appeal and Error, Cent. Dig. § 3400.] PRENDERGAST, P. J. Appellants were indicted for the murder of Dick Watts. They sued out a writ of habeas corpus before the district judge, who, after hearing all the evidence, denied them bail. Hence this appeal. [1] The statement of facts is voluminous. We have given it, and appellants' briefs, careful consideration, in addition to having heard the evidence discussed on submission for an hour on each side, by the able attorneys representing the appellants and the state. It is the rule of this court not to discuss the evidence in appeals of this character, and we shall adhere to that rule now. [2, 3] "The rule is: 'All prisoners shall be bailable.' Section 11, art. 1, of our Constitution. The exception is: 'When the proof is evident' that not only the accused is guilty, but that the jury will, if they properly enforce the law, probably assess capital punishment; this conclusion to be reached by the well-guarded and dispassionate judgment of the court or judge passing upon the question." Ex parte Stephenson, 71 Tex. Cr. R. 382, 160 S. W. 77. As we understood appellant's attorney, on the submission hereof, it was conceded that in all probability a jury will assess the death penalty, if on final trial the guilt of appellants is shown. At any rate, whether conceded by appellants or not, in our opinion, if their guilt is so shown, a "jury will, if they properly enforce the law, probably assess capital punishment." That feature need not be further considered. The only other question, then, is whether or not the evidence as a whole was clear and strong enough to "lead a well-guarded and dispassionate judgment to to the conclusion *** that the accused is the guilty agent." Ex parte Russell, 71 Tex. Cr. R. 378, 160 S. W. 76. If so, bail was correctly denied. The law of our state on this question is well, and has long been, established, not only by our constitutional and statutory provisions, but by our decisions as well. We will cite and quote from some of our decisions-not all of them to the same effect, by any means. In Ex parte Evers, 29 Tex. App. 560, 16 S. W. 343, this court, by Judge Davidson, said: "All prisoners shall be bailable by sufficient sureties unless for capital offenses when the Appeal from District Court, Hardin Coun- proof is evident.' Bill of Rights, § 11. By vir ty; J. Llewellyn, Judge. Ex parte application by E. E. Sapp and others for a writ of habeas corpus for admission to bail. From an order denying bail, they appeal. Affirmed. tue of this provision the right of bail is secured to all persons in this state who are accused of crime, except in cases where the evidence manifests with reasonable certainty that the accused party is guilty of a capital offense. McCoy v. State, 25 Tex. 33 [78 Am. Dec. 520]; Ex parte Coldiron, 15 Tex. App. 464; Ex parte Smith, |