peal. Following McGlasson v. State, 38 Texas. Crim. Rep., 351, and other

cases.

3.-Same-Insufficiency of the Evidence.

The judgment being reversed and the cause remanded for other reasons, the sufficiency of the evidence need not be discussed further than to say that it is not as satisfactory and convincing as it might be, but as it may not be the same upon another trial, the judgment is reversed upon other grounds.

Appeal from the County Court of McLennan. Tried below before the Honorable Giles P. Lester.

Appeal from a conviction of failure to support defendant's infant child; penalty, six months confinement in the county jail.

The opinion states the case.

John McGlasson, for appellant.

R. G. Storey, Assistant Attorney General, for the State.-On question of venue: Garrett v. State, 135 S. W. Rep., 532.

HAWKINS, JUDGE.-Conviction was for failure to support appellant's infant child, punishment being assessed at six months imprisonment in the county jail.

Only one bill of exceptions appears in the record. While the jurors were being examined on their voir dire, the State's attorney asked them if they believed in the enforcement of the law which makes it an offense for a man to refuse to support and maintain his children. Upon answer being made in the affirmative, appellant's counsel then asked them, "Do you believe that a man should be punished for failure to support his child regardless of the circumstances or reasons for such failure?" The court sustained the objection to this question. We think the question was entirely too general. It in no particular apprised the jury of, nor embraced, any defensive theory.

For the first time, in his motion for new trial, appellant questions proof of venue. No bill of exceptions presents this issue. Under these circumstances this court is not authorized to review the matter. Article 938, Vernon's C. C. P.; McGlasson v. State, 38 Texas Crim. Rep., 351; Thompson v. State, 72 Texas Crim. Rep., 6, 160 S. W. Rep., 685.

The only other question raised by appellant is that the evidence does not show that he failed to support the child, or that the child was in destitute and necessitous circumstances. In passing upon this issue it is necessary for us to look to the State's testimony in its entirety to ascertain if the complaint is tenable; however, we do not deem it necessary to set out here the evidence, because it raises a question of fact merely, and would not be helpful to the bench or bar of the State generally. After a careful examination of the State's testimony we have

reached the conclusion that it was sufficient for the jury to have based thereon its finding against the contention of appellant. It is true the testimony is challenged in some particulars by that of appellant, but this only raises an issue of fact, which it was the province of the jury to determine, and they have settled that in favor of the State. It is only where there is no testimony, or insufficient testimony to support a conviction that this court will be authorized to set it aside, and not as in this instance, where they may be a conflict in the testimony. Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.

ON REHEARING.

January 11, 1922.

HAWKINS, JUDGE.-On further consideration and consultation we have reached the conclusion that we were in error in holding that the question propounded to the jurors by appellant's counsel was too general. An answer thereto might have disclosed the attitude of some juror upon the subject inquired about that would have formed a basis for a challenge for cause; or, at least, would have enabled appellant to exercise his right of peremptory challenge more intelligently. Barnes v. State, 74 Texas Crim. Rep., 501, 168 S. W. Rep., 858; also see cases cited under Note 50, Vernon's C. C. P., p. 380.

It is also urged that we were in error in holding the evidence sufficient to sustain the conviction. Upon a closer analysis of it it must be conceded that it is not as satisfactory and convincing as it might be. It may not be the same upon another trial, if one is had. We make no further comment on it, as the case will be reversed on the other ground. The motion for rehearing is granted; judgment of conviction is reversed, and the cause remanded for a new trial.

Reversed and remanded.

VIRGIL MOODY V. THE STATE.

No. 6567. Decided January 11, 1922.

1.-Assault to Murder-Statement of Facts-Questions and Answer-Bill of Exceptions.

As it appears possible in the instant case, that the insertion of certain questions and answers in said statement of fact may have been with the idea that such method made clearer complaints regarding parts of the evidence, the State's motion to strike out is overruled. The court observes, however, that it is not necessary to insert questions and answers in the statement of facts in order to make plain any ruling of the lower court.. The bill of exceptions must do this.

2. Same-Evidence-Bill of Exceptions-Res Gestae.

Where from neither bill of exceptions, this court could determine how long after the cutting it was before the statements referred to were made, or what was the condition of the injured party at the time, and the court stating that the testimony was admissible as res gestae, and his qualification was accepted, there was no reversible error.

3.-Same-Evidence-Arrest-Declaration of Defendant.

The mere fact recited in the bill that the sheriff came to where defendant was or had talked to him after the cutting and prior to the making of certain statements by defendant, would not be tantamount to such showing of an arrest as would be necessary in order to exclude such statements, and this showing would not support objections to statements of defendants made after said visits of the sheriff, and there is no reversible error.

4. Same-Bill of Exceptions-Reputation-Practice in Trial Court-Rule Stated.

Where the bill of exceptions complains that certain witnesses were allowed to state in their testimony that they would not believe the prosecutrix, the alleged injured party, on oath, the same is reversible error. The rule is that the witness may not be asked if he would or would not believe on oath the party inquired about, although he may be asked if from general reputation said party is worthy of belief under oath.

5.-Same-Aggravated Assault-Charge of Court-Practice in Trial Court.

Where, upon appeal from a conviction of assault to murder, it appeared from the record that the appellant excepted to the charge of the court below for his failure to submit the issue of aggravated assault, and the record also showed that the issue was raised by the evidence, the same is reversible error. 6. Same-Deadly Weapon-Pocket-knife-Intent to Kill.

That one cuts another with a pocket-knife voluntarily does not make him guilty of assault to murder, unless an intent to kill is shown, and the mere fact that the pocket-knife was used is not proof that it was a deadly weapon. Following Johnson v. State, 49 Texas Crim. Rep., 429.

7.-Same-Case Stated-Aggravated Assault-Assault to Murder.

If appellant cut his wife without excuse, he might be guilty of aggravated assault, or assault to murder, but unless the evidence so plainly makes out one offense as to clearly exclude the other, it would be the duty of the trial court to submit the law relative to each, and leave the question to the jury.

8.-Same-Self-Defense-Charge of Court-Practice in Trial Court.

The theory of the defendant should be presented in an affirmative charge, applicable to the facts offered to support such theory, whether the same be true is a matter for the jury.

Appeal from the District Court of Johnson. Tried below before the Honorable Irwin T. Ward.

Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

No brief on file for appellant.

R. G. Storey, Assistant Attorney General, for the State.-On question of statement of facts by question and answer; Felder v. State, 59

Texas Crim. Rep., 144. Hargrave v. State, 53 id., 147; Mooney v. State, 73 id., 123.

LATTIMORE, JUDGE.-Appellant was convicted in the District. Court of Johnson County of assault to murder, and his punishment. fixed at two years in the penitentiary.

The State moves to strike out the statement of facts upon the ground that the greater part thereof is made up of questions and answers. The motion finds some support, and attention of the officers charged with the duty of the preparation of statements of facts is again called to the necessity that such statements should be in narrative form; but as it appears possible in the instant case that the insertion of certain questions and answers in said statement of facts may have been with the idea that such method made clearer complaints regarding parts of the evidence, we overrule the State's motion. We observe. however, that it is not necessary to insert questions and answers in the statement of facts in order to make plain any ruling of the lower court. The bill of exceptions should be complete, and if not so when presented for filing it should be rejected, and, in a proper case, a complete bill of exceptions should be prepared and filed by the trial court. There is no brief on file for appellant herein.

By his bills of exception Nos. 1 and 3 appellant complains of certain testimony of Mrs. Moody, the alleged injured party, and Dr. Ball, as to statements made by Mrs. Moody to the doctor when he came to the place where the trouble occurred. Without setting out at length the averments of said bills of exception, we conclude that neither shows error. From neither bill can we learn how long after the cutting it was before the statements were made, nor what was the condition of Mrs. Moody at the time, nor whether said statements were made in the presence of appellant. The court approves these bills, stating that the evidence was admitted as part of the res gestae. The bills were accepted with this qualification upon them and contain nothing showing to the contrary This also applies to appellant's bills of exception Nos. 2. 4, and 5. The mere facts recited in said bills that the sheriff came to where appellant was, or had talked to him after the cutting and prior to the making of certain statements by appellant, would not be tantamount to such showing of an arrest as would be necessary in order to exclude such statements, and this showing would not support objections to statements of appellant made after said visit of the sheriff. No conduct of said officer or any statement of his appears in any of said bills which indicates any arrest or suggestion of restraint, or custody of appellant. When a witness on the stand appellant did not claim that he made any of said statements while under restraint, or while he thought himself to be under arrest. See sec. 62, p. 35, Branch's Ann. P. C., and collated authorities.

By his bills of exception Nos. 7 and 8 appellant complains that certain witnesses were allowed to state that they would believe Mrs.

Moody, the alleged injured party, on oath. From the record we observe that both said witnesses were introduced by the State and gave testimony that the general reputation of Mrs. Moody for truth and veracity was good. After being cross-examined and turned back to the State for further examination, each of said witnesses was asked by the county attorney: "Would you believe Mrs. Moody upon oath?" and it is shown that over objection each was permitted to answer in the affirmative. This was error. In Boone v. Weathered, 23 Texas, 675, and in all subsequent Texas authorities, the rule seems clearly adhered to that the witness may not be asked if he would or would not believe on oath the party inquired about. Marshall v. State, 5 Texas Crim. App., 273; Halbert v. State, 9 Texas Crim. App., 219; Bluett v. State, 12 Texas Crim. App., 39; Douglass v. State, 98 S. W. Rep., 840; Ware v. State, 36 Texas Crim. Rep., 598; Edgar v. State, 59 Texas Crim. Rep., 488, 129 S. W. Rep., 141. A witness who has testified that the general reputation of the party under investigation is good or bad, may also be asked if from such general reputation said party is worthy of belief under oath, but in no case in this state known to us has it been held that the witness may be asked whether he would or would not believe such person under oath.

Appellant excepted to the charge of the court below for his failure to submit the issue of aggravated assault. The trial court, after such exception, did not change his charge or submit said issue. We think a charge on aggravated assault should have been given, and that the failure to give same when excepted to was error. The offense charged was an assault to murder, the gist of which is an assault and intent to kill. Admitting the assault, and discussing only the intent to kill, we observe there was no threat to kill accompanying or preceding the assault, nor any subsequent statement made by appellant suggesting such intent, nor was there evidence of antecedent menaces or former grudges, or any of those things from which we ordinarily deduce malice. The parties were husband and wife, and while they had been separated for a few weeks, they seem to have been on good terms during the period of their separation, which seems to have come about. because of the inability of appellant to make a living. Mrs. Moody says that on the night preceding the trouble appellant came to her house and when he left, she kissed him. On the day of the occurrence he came again to her house and called her to the back porch where she sat down and he sat near her on the steps. Evidently he was urging her to submit her person to him. She says he kept insisting that they go into the house, and that she, knowing what he wanted, refused. Finally he picked her up in his arms and carried her into the house. He put her down and she says she again refused, and told him that she had two children and did not want any more, and that he could not support her or a child. She says that he then drew his knife and cut her and then cut himself. She further testified that he sank to the floor, and that both arose and walked together through the kitchen and