car. scuffled over it; that deceased shot him and he fell off the running board; that he then heard other shooting and got up, and when he did so he saw deceased in the rear of the car, and went toward the car; that as he approached the car deceased cut at him and he began cutting at deceased, not being able to state how many times he cut the latter. The facts from other witnesses show that at once after the first encounter at the place of the homicide deceased got out of the car and ran and was pursued and shot in the back, and kicked or "stomped" by some members of appellant's party; that as a result of this shooting the leg of deceased was paralyzed. He was then put back into the car from which he had fled, and was lying or sitting in the rear seat when appellant approached the car and the cutting was done. Just after being put back in the car and before appellant cut him, deceased was struck over the head with a flash light by appellant's brother, Simeon Hays. It was a dark night. Appellant did not claim that either he or deceased said anything just before the cutting began and at the time he approached the car. Based on these facts we conclude that appellant has not shown himself entitled to a charge on selfdefense against a knife attack by deceased. Till he fled from the car after appellant was shot, it is not shown that deceased ever left said Appellant makes no explanation of his purpose in going back to said car and getting up on the running board, when he said to the driver that deceased was the fellow he wanted to see. He was perfectly aware that as a result of what took place at that time, he was shot in the body. In a moment or two he starts back to said car again in the darkness, and without a word of warning or explanation. He offers no word as to his motive or purpose in going to the car at this time. He says deceased struck at him then with a knife as he approached. It occurs to us that if he started at a man who had just shot him, his act and that of his adversary would take color from what had preceded. The transaction was continuous; events moved swiftly. The court told the jury that if he had the right to defend against the pistol attack, he should be acquitted whether he shot or cut deceased. We think this is all he was entitled to. If we take the State's evidence as a whole, it seems to clearly show an acting together between appellant and his companions in a preconcerted attack on deceased, and that they pressed the attack from different angles until mortal wounds. were inflicted upon him. In such case there arose no self-defense. They stopped their car first on a bridge and compelled the stopping of the other which was behind them. After starting again they soɔn stopped their car, and when that in which deceased was riding attempted to pass them, one of appellant's companions threw himself upon the car and demanded that it be stopped. Immediately, according to the State witnesses, appellant went to the car and said that deceased was the s-n of a b-h that they were after, and attacked him with blows in the face and, as some of the witnesses said, by choking him. When the deceased defended and tried to get away he was caught, shot, kicked, and after being put back in the car was cut in nineteen places with a knife. According to this record appellant appears to be the only one who used a knife upon the person of deceased. The doctor who attended him said that the death of deceased was caused by knife wounds. We are not inclined to think our former opinion in error on the point raised by this objection. The matter of allowing appellant to attack the reputation of Miss Edith Tittle was sufficiently discussed and we think correctly decided in our opinion. That appellant believed, or had reason to believe, her unchaste or of bad reputation, would afford him no justification for attempting to force her to drink whisky, or to make any kind of assault upon her while in the car with deceased. He swore that she was not offended by what he did, and nowhere in her testimony did she say that she was offended. This occurred but a short time after the parties left the dance and but a few moments before the killing occurred. Anything which elucidated the condition, feeling and disposition of appellant and those acting with him toward deceased and his companions, would seem to be admissible. The other contentions of appellant in this motion for rehearing have already been discussed by us and we deem them without merit. The motion for rehearing will be overruled. Overruled. W. T. JACKSON V. THE STATE. No. 6320. Decided October 19, 1921. Rehearing granted November 30, 1921. 1.-Aggravated Assault-Deadly Weapon--Requested Charge. Where, upon trial of aggravated assault the ground of aggravation being a deadly weapon, it was reversible error to refuse a requested charge presenting the usual and customary definition of a deadly weapon, and the court having failed to define in his main charge that term, the same was reversible error. 2. Same-Charge of Court-Simple Assault-Shotgun-Deadly Weapon. A shotgun when merely used to alarm is not a deadly weapon, and the offense would be but a simple assault, it mattering not whether the gun was loaded or unloaded, and in the instant case, if the gun was not a deadly weapon, etc., the offense made by the State's pleading was not supported by the proof. The Court having failed to charge on simple assault, which should have been done. Following Yelton v. State, 75 Texas Crim. Rep., 38, and other cases. 3. Same-Defendant's Absence-Verdict of Jury-Motion for New Trial. In the absence of a statement of facts of the evidence heard un a motion for new trial, on account of the absence of the defendant when the verdict was received, the matter cannot be reviewed and there is no reversible error on that ground. 90 T. C.-24 Appeal from the County Court of Angelina. Tried below before the Honorable John F. Robinson. Appeal from a conviction of aggravated assault; penalty a fine of $25. The opinion states the case. Fairchild & Redditt, for appellant.-On question of deadly weapon: Skidmore v. State, 43 Texas, 94; Key v. State, 12 Texas Crim. App., 506; Teague v. State, 206 S. W. Rep., 193; Hardin v. State, 13 Texas Crim. App., 192; Kosmoroski v. State, 59 Texas, Crim. Rep., 296, and other cases. R. H. Hamilton, Assistant Attorney General, for the State. MORROW, PRESIDING JUDGE.-Conviction is for aggravated assault; punishment fixed at a fine of $25. The alleged ground of aggravation is the use of a deadly weapon. While Mrs. Johnson and Mrs. Jackson were conversing over the telephone, a party line, Scroggins picked up the receiver, and, hearing the conversation, made a remark which was construed by Mrs. Jackson as offensive, though Scroggins claimed that it was not so intended. Later, while Scroggins and two companions were riding horseback along the road, passing the home of the appellant, W. T. Jackson, he accosted them, and, according to the State's testimony, commanded the separation of Scroggins from his companions, and in an angry manner and tone, leveled his gun or pointed it at Scroggins, telling him that if he did not go to the house and apologize to Mrs. Jackson, he would be killed by the appellant. Accompanying this action or preceding it, a noise was heard indicating the cocking of the gun. Scoggins complied with the demand and the appellant held the gun on him while he went to the house and made the apology. Appellant's theory is to the effect that upon seeing Scroggins and his companions, he got his gun and went to the road and accosted them and demanded that Scroggins should go to the house and apologize to Mrs. Jackson; that Scroggins, without hesitation, did so, the appellant following him without presenting his gun, which, according to his testimony, he carried for protection, understanding that Scroggins was in the habit of going armed. The court instructed the jury thus: "A shotgun is a deadly weapon but the merely having a shotgun in one's possession, or the carrying one in the ordinary manner or way one may or is usually carried does not constitute an assault and only becomes the means of an assault when used in a threatening manner or presenting it in a shooting position." Appellant requested an instruction that a deadly weapon was one which "in the manner used is likely to produce death or serious bodily arm," and complains of the refusal of this charge. The real issue was whether an assault was committed. If appellant cocked and presented a shotgun with threatening words and manner, as described by the State's witnesses, he committed an assault with a deadly weapon. Such is the holding of this court in Lockland's case (45 Texas Crim. Rep., 89) and others. See Myers v. State, 72 Texas Crim. Rep., 630, 163 S. W. Rep., 432; Ford v. State, 51 Texas Crim. Rep., 443; Forrest v. State, 3 Texas Crim. App., 232; Burton v. State, 3 Texas Crim. App., 408. There is no evidence that the instrument was used otherwise than as a firearm. If it was not in condition to shoot, it devolved upon the appellant to furnish evidence of this fact, it being peculiarly within his knowledge. Cromwell v. State, 60 Texas Crim. Rep., 183; Crow v. State, 55 Texas Crim. Rep., 200 L. R. A. (N. S.), Vol. 21, p. 497; Lockland v. State, 45 Texas Crim. Rep., 87. As If the facts were as claimed by appellant, he made no assault. we conceive it, the question was not whether the instrument was a deadly weapon in the manner used but whether it was used at all. The charge given, we think, was better adapted to guide the jury in deciding this issue than the special charge requested. If the State's theory was true, there was no occasion to define a “deadly weapon." Martinez v. State, 56 S. W. Rep., 58; Wheeler v. State, 56 Texas Crim. Rep., 550; Lofton v. State, 59 Texas Crim. Rep., 270; Kosmoroski v. State, 59 Texas Crim. Rep., 296. Under the charge given, unless the State's theory was believed, it was the duty of the jury to acquit. It was not contended that if the instrument was used as the State claims, there was a lack of intent to injure such as would classify the offense as a simple assault. Teague v. State, 84 Texas Crim. Rep., 169, 206 S. W. Rep., 193; and Hall v. State, 89 Texas Crim. Rep., 254, 230 S. W. Rep., 690 are cases in which there was affirmative evidence that the demonstration made with the firearm was without intent to injure. Such issue is not in the case in hand. A new trial was sought on the assertion that the verdict was received in appellant's absence. According to the motion and affidavit attached, he attended the trial, but at the time the verdict was received, was outside of the courthouse a few feet from the door. In the order overruling the motion, it is stated that evidence was heard. We have before us no statement of the evidence heard on the motion, and in its absence, must assume that the facts adduced support the court's action. If appellant was voluntarily absent, the court's action in receiving the verdict was justified. Laws of 1907, Chap. 19. No error appearing, the judgment is affirmed. Affirmed. ON REHEARING. November 30, 1921. LATTIMORE, JUDGE.-Appellant was charged with aggravated assault. The ground of aggravation laid, was the use of a gun, same being a deadly weapon. The State's case was that appellant, affronted at conduct of Scroggins, the alleged injured party, presented at him at shotgun demanding that he go and apologize to Mrs. Jackson, appellant's wife, or appellant would kill him. Scroggins stood not on the order of his going but went and apologized. Nothing further was done. Appellant asked a special charge presenting the usual and customary definition of a deadly weapon which was refused, and the court having failed to define in his main charge that term, gave the special charge set out in our opinion as corrective of his omission. We are inclined upon mature reflection to conclude that we were in error in upholding the action of the trial court in refusing the special charge containing a correct definition of a deadly weapon and in giving the definition contained in the special charge which was given at the instance of the State. A shotgun, when merely used to alarm, is not a deadly weapon. McCutcheon v. State, 49 Texas Crim. Rep., 608; Bean v. State, 49 S. W. Rep., 394; Ray v. State, 21 S. W. Rep., 540; Hall v. State, 105 S. W. Rep., 816; Shuffield v. State, 62 Texas Crim. Rep., 556. Whether such gun was loaded or not was held a material matter in Pearce v. State, 37 Texas Crim. Rep., 643, but this was practically overruled in Hall v. State, supra, which succinctly states that if the gun be used to alarm, the offense would be but a simple assault, it mattering not whether the gun was loaded or unloaded. In the instant case if the gun was not a deadly weapon, that is not one which in the manner of its use was likely to produce death or serious bodily injury, the offense made by the State's pleadings was not supported by the proof. Upon another trial the court should submit simple assault. Yelton v. State, 75 Texas Crim. Rep., 38, 170 S. W. Rep., 319; Haygood v. State, 51 Texas Crim. Rep., 618; Ray v. State, supra; Wright v. State, 77 S. W. Rep., 809; Shuffield v. State, supra. In the Yelton case, supra, the accused had a deadly weapon in his hand in enforcing his demand for an apology from the alleged injured party to his wife. The facts are very similar to those in the instant case. In Shuffield's case, after a war of words the accused presented his shotgun at his enemy but did not try to discharge it. In Ray v. State, supra,, appellant demanded a retraction at the hands of the alleged injured party, and when the latter was slow in making it, threw a shell into his gun. These were held to be cases of simple assault. If the jury believed from the facts in the instant case that appelant had no further intent to use the shotgun in question than to alarm |