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house and deceased came after him, when he grabbed the gun and en gaged in a scuffle, in which the father took part, and said:

"Me and Uncle Alex and Judge were all scuffling, and if Judge run I didn't see him. I didn't know anything else until the gun fired. So Uncle Alex ran on me for the gun, but I never turned the gun loose and I wheeled and went off and by the time I got half way between my house and where Uncle Alex Stevens lived, I heard him say: 'Judge is dead.""

There was some evidence about measurements and about the location of objects bearing upon the ability of the witnesses to see what took place. We regard it as simply bearing on any conflict in the evidence. concerning the incidents immediately attending the homicide, and not as raising any question of law.

Counsel takes the position that upon the undisputed evidence, the appellant went to the premises unarmed, upon the invitation of the deceased's father, upon a peaceful mission and for a lawful purpose, and that the manner in which the homicide took place and the facts immediately preceding it excluded the theory of malice, as a matter of law. Granting that there was evidence which might have reduced the grade. of the offense to manslaughter, whether it did so would depend upon the condition of appellant's mind; necessarily a question of fact. There was some evidence of a previous difficulty antedating the homicide some months. To characterize the case as murder, it would not be necessary that the jury believe that the appellant had the intent to kill the deceased when he went to the home of Alex Stevens. He might, at any time, thereafter have formed the intent and be guilty of murder unless, at the time, his mind, from an adequate cause, was in a state rendering him incapable of cool reflection. This principle is illustrated in the case of McCoy v. State, 25 Texas Rep., 37, which is cited by the appellant. See, also, Jones v. State, 29 Texas Crim. App., 340; Farrer v. State, 42 Texas Rep., 265; Atkinson v. State, 20 Texas Rep., 52; Duebbe v. State, 1 Texas Crim. App., 159.

We are referred by the appellant to West v. State, 2 Texas Crim. App.. 460; Moffatt v. State, 35 Texas Crim. Rep., 257, 33 S. W. Rep., 344; Mason v. State, 72 Texas Crim. Rep., 501, 163 S. W. Rep., 66; Burton v. State, 77 Texas Crim. Rep., 314, 178 S. W. Rep., 334. These cases each pertinently support the proposition that if, under the facts in the instant case, the court had failed to charge upon the law cf manslaughter, it would have been in error, but as we comprehend them, none of them support the contention urged by the appellant that it was the duty of the court to omit from the charge the issue of murder. The facts in evidence may have been such as justified the jury in concluding that adequate cause existed. This was a question for the jury, and the effect of proof of adequate cause, upon the mind of the accused was a question of fact. The jury must decide whether there was adequate cause for passion and whether the passion existed and whether it rendered the mind incapable of cool reflection. Such is the

statute, Article 1137 of the Penal Code, which says, in substance, that in order to reduce a voluntary homicide to the grade of manslaughter, it is necessary that not only adequate cause exist but it must produce passion as described by the statute rendering the mind incapable of cool reflection. Such has been the construction in Branch's Ann. Texas Penal Code, Sec. 2029 and cases listed; also, Sec. 2002. If there be an exception to this rule (see Doss v. State, 43 Texas Crim. Rep., 551), the case before us is not within it.

The state of appellant's mind at the time he formed the design to kill was a question of fact and not of law. In its charge, the court informed the jury concerning the law in a manner to which there is addressed no complaint. We believe that we would not be warranted in holding that there was no evidence upon which to predicate the charge upon murder or that the evidence in the record was not adequate to support the conviction for that offense.

The judgment is affirmed.

Affirmed.

ON REHEARING.

December 21, 1921.

LATTIMORE, JUDGE.-It is very earnestly insisted in this case that we erred in holding the evidence sufficient to sustain the judgment, the principal ground of such insistence being that the transaction involving the homicide arose apparently without any evil purpose on the part of appellant, and that the events moved so swiftly that the conclusion that he was actuated by malice aforethought in what he did, would not be supported by the testimony. It is also urged that the conclusion that deceased was running away from appellant when the shooting took place, was not sustained because of the fact that the witnesses testified that the deceased was shot in the face. Therecord discloses the testimony of three eyewitnesses, and an examination of one of them reveals the fact that he testified both on direct and cross-examination that as deceased was fleeing from appellant, he looked back and just as he looked back appellant fired. This would fully account for the fact that deceased was shot in the face. All of the witnesses besides appellant testified to the fact that deceased was trying to make his escape from appellant who pursued and shot him, thus causing his death. We think the facts justified the jury in concluding malice aforethought to have appeared from the evidence. Without discussing the question of former differences and some feeling manifested between deceased and appellant, the evidence, aside from that of appellant himself, showed that just prior to the killing and because of sharp words between himself and appellant, deceased went into his house and got his gun and came out; that when he reached the outside of said house deceased was grappled by his

father who endeavored to take the gun away from him; that while deceased and his father were scuffling over the gun appellant approached and himself snatched the gun away; that when this occurred deceased ran and was pursued by appellant and shot as he was trying to make his escape. It is so well settled by the decisions of this court that malice requires no specific length of time for its germination or growth, and that it can arise any instant, that we are not inclined to discuss or further speculate upon a matter that was fairly submitted to the jury and by them decided adversely to appellant's contention. We have examined the authorities submitted by able counsel for appellant in his supplemental argument in support of his motion for rehearing, but are unable to find anything in them contrary to what we have above expressed, and the motion will be overruled.

Overruled.

ELIAS WILLIAMS V. THE STATE.

No. 6570. Decided December 21, 1921.

Intoxicating Liquors-Possession-Repeal of Law.

By amendment of the prohibition law, Second Called Session of the Thirty-seventh Legislature, it is not now an offense to possess intoxicating liquor unless the same is had for the purpose of sale, and it is necessary to allege and to prove that it was so possessed for the purpose of sale before an offense is charged or a conviction can be had. Following Cox v. State, 90 Texas Crim. Rep. 256, recently decided.

Appeal from the District Court of Smith. Tried below before the Honorable J. R. Warren.

Appeal from a conviction of the unlawful possessing of intoxicating liquors; penalty, one and one-half years imprisonment in the penitentiary.

The opinion states the case.

Butler, Price & Maynor, for appellant.

R. G. Storey, Assistant Attorney General, for the State.

HAWKINS, JUDGE.-Conviction was for possession of intoxicating liquor. Penalty assessed at one and one-half years in the penitentiary. By amendment of the prohibition law passed by the Second Called Session of the Thirty-seventh Legislature, it is not now an offense to possess intoxicating liquor, unless the same is had for the purpose of sale, and it is necessary to allege and to prove that it was so possessed for the purpose of sale before an offense is charged, or a conviction can be had. No. 6423, Frank Cox v. State, 90 Texas Crim. Rep. 256; No.

6510, Petit v. State, 90 Texas Crim. Rep., 336; No. 6493, Francis v. State, 90 Texas Crim. Rep., 399, all decided at the present term of court and not yet reported.

Under the foregoing authorities it is necessary to reverse the judgment of the trial court and order the prosecution dismissed. Reversed and dismissed.

ANDREAS DOMEIER V. THE STATE.

No. 6566. Decided December 21, 1921.

Tick Eradication Law-Information—Arrest of Judgment.

Where, upon trial of a violation of the Tick Eradication Law, the information was sufficient under the statute, there was no error in overruling a motion in arrest of judgment, and in the absence of a statement of facts and a bill of exceptions, the judgment must be affirmed.

Appeal from the County Court of Kendall. Tried below before the Honorable J. A. Phillip.

Appeal from a conviction of a violation of the Tick Eradication Law; penalty, a fine of $25.

The opinion states the case.

No brief on file for appellant.

R. G. Storey, Assistant Attorney General, for the State.

LATTIMORE, JUDGE.-Appellant was convicted in the County Court of Kendall County for failing to dip certain live stock in accordance with the provisions of what is known as the Tick Eradication Law and punished by a fine of $25.

There is no statement of facts nor bill of exceptions in the record. There appears a lengthy motion in arrest of judgment presenting sundry reasons why the information is not sufficient. We have carefully examined the State's pleadings in the case. Same charge, in substance, that appellant owned, controlled and cared for certain cattle, horses, asses and mules on a certain date; that on said date said animals were on premises owned by appellant in Kendall County, which premises and county were quarantined under the orders of the Live Stock Sanitary Commission of Texas in accordance with law; that said animals had been on a certain date exposed to the fever carrying tick, after which, upon ascertainment of such fact, the Live Stock Sanitary Commission in writing on May 2, 1921, had directed appellant to dip said animals in a certain named vat in said county, which vat contained the solution prescribed in said statute, which dipping direction also included the hours at which appellant was to dip said cattle,

and that same were to be dipped on May 18, 1921; that appellant unlawfully and wilfully failed and refused to dip said animals at said time and place.

This we think a sufficient complaint and information charging a violation of this statute. It follows that in our judgment the motion in arrest of judgment was properly overruled. The information being sufficient and the record containing no statement of facts, no error appears, and the judgment will be affirmed.

Affirmed.

FRANK D. KOSAREK, ALIAS FRANK D. COOK, V. THE STATE.

No. 6577. Decided December 21, 1921.

1.-Bigamy-Sufficiency of the Evidence.

Where, upon trial of bigamy, the evidence was sufficient to support the conviction, there was no reversible error.

2.-Same-Charge of Court-Requested Charges-Practice on Appeal.

Where it nowhere appeared in the record that either the requested charges or the objection to the charge of the court were filed before the main charge was read to the jury, or were ever called to the court's attention, they cannot be considered on appeal.

Appeal from the District Court of Austin. Tried below before the Honorable M. C. Jeffrey.

Appeal from a conviction of bigamy; penalty, two years imprisonment in the penitentiary.

No brief on file for appellant.

R. G. Storey, Assistant Attorney General, for the State.

HAWKINS, JUDGE.-Conviction is for bigamy. Penalty, two years in penitentiary. Appellant was indicted for intermarriage with Annie Vrazel when he had a former living wife. The evidence is sufficient to sustain the conviction. Appellant claims to have believed he had secured a divorce from his first wife. That issue was submitted to the jury and determined against him.

We find in the record what purports to be some exceptions to the charge, and also some special charges. None of them bear an endorsement of the trial judge. It nowhere appears that either the special charges, or the objections to the charge, were filed before the main charge was read to the jury, or were ever called to the court's attention. Under such conditions we cannot consider any of them, Art, 735 and 737, Vernon's C. C. P., and notes thereunder.

The judgment of the trial court is affirmed.

Affirmed.

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