out through the bed room. She did not flee. There was no out-cry. Mr. and Mrs. Steadman sat on the front porch during the occurrence and knew nothing of it until Mrs. Moody walked out there after the cutting, with the knife in her hands, which she says she took out of appellant's hands as he sank down on a trunk.

That one cuts another with a pocket-knife voluntarily, does not make him guilty of assault to murder. An intent to kill must appear from the facts. What was appellant's purpose? What sort of weapon did he use? Unless the weapon was deadly, would an assault to murder necessarily follow? The weapon used by appellant was a pocket-knife. No witness testified to its size or the length of any blade. The mere fact that a pocket-knife was used does not establish that it was a deadly weapon. Martinez v. State, 35 Texas Crim. Rep., 386; Johnson v. State, 49 Texas Crim. Rep., 429; Barnes v. State, 52 Texas Crim. Rep., 407; Ross v. State, 61 Texas Crim. Rep., 12. No presumption of intent to kill arises from the use of a weapon not shown to be deadly. Art. 1147, Vernon's P. C., is as follows:

"The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears."

Not only did Mrs. Moody fail to give any description of the knife or the wounds inflicted upon her, but Dr. Ball, the physician who attended her, testified that he did not probe her wounds, though at the time he thought they were serious. No other person bore witness to the character or seriousness of the wounds upon Mrs. Moody. No one testified that she was confined to her bed, or as to what ill-effects she suffered from such wounds. Dr. Ball says she developed a pleurisy, but that it might happen from almost anything.

If appellant cut his wife without excuse he might be guilty of aggravated assault, or of 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 settlement of the issue of fact where it belongs.-with the jury. The evidence in this case does not so plainly support either issue as to exclude the other, and upon exception being presented to the court for his failure to submit the issue of aggravated assault, he should have corrected the charge, or have given a supplemental charge presenting such issue.

The court's charge on self-defense was meager. There was an exception taken to the failure to charge that appellant did not have to retreat but might stand his ground and defend against an unlawful attack. Appllant swore that his wife attacked him with a knife and began cutting him without any provocation on his part whatever, and that he drew his knife and cut her in self-defense. The theory of the defendant should be presented in an affirmative charge applicable to the

facts in evidence offered to support such theory. Whether such facts be true and such defense effective, is a matter for the jury.

For the errors mentioned the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.

GAYLON PRICE V. THE STATE.

No. 6513. Decided January 11, 1922.

1.-Assault With Intent to Rape-Aggravated Assault-Charge of CourtConsent.

Where, upon trial of assault with intent to rape and a conviction of aggravated assault, the trial judge in submitting his charge on aggravated assault apparently proceeded upon the theory that inasmuch as the prosecutrix being under eighteen years of age and therefore precluded by law from giving her consent to carnal knowledge was also incapable of consenting to indecent familiarity, the same was reversible error, as defendant's guilt of aggravated assault would depend upon whether defendant's conduct was without the consent of the prosecutrix. Following Hand v. State, 88 Texas Crim. Rep., 431. 2.-Same-Charge of Court-Intent-Consent.

Where, upon trial of assault with intent to rape and a conviction of aggravated assault, the evidence presented an issue of fact concerning the effect of the defendant's conduct upon the prosecutrix, his intent in committing it and her consent to it, these issues should have been submitted to the jury, as requested.

Appeal from the District Court of Terry. Tried below before the Honorable W. R. Spencer.

Appeal from a conviction of aggravated assault; penalty, a fine of $400.00.

The opinion states the case.

G. E. Lockhart, and Percy Spencer, for appellant.

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

MORROW, PRESIDING JUDGE.-Under a charge of assault with intent to rape, the conviction is for aggravated assault.

The prosecutrix was under eighteen years of age, and testified to certain conduct of the appellant upon which the issues of assault with intent to rape and aggravated assault were submitted to the jury. The finding was against the State as to the former, and against the appellant as to the latter.

Appellant complains of the charge on aggravated assault, wherein is embodied the following language:

"If the female is alleged and proven to be under the age of eighteen years, and there is evidence that defendant took hold of her without the intent to then and there have carnal knowledge of her, and there is proof of indecent familiarity, and if you so believe beyond a reasonable doubt, you will find the defendant guilty of an aggravated assault."

This charge, under the denied facts, left no room for other than the verdict of guilty. The judge apparently proceeded upon the theory that inasmuch as the prosecutrix, being under eighteen years of age and therefore precluded by law from giving her consent to carnal knowledge, was also incapable of consenting to familiarity. We regard this as a mistaken interpretation of the statute. The jury having found that he had no intent to commit rape, his guilt of aggravated assault would depend upon whether his conduct was without the consent of the prosecutrix and whether it did, in fact, produce a sence of shame or other disagreeable emotion of the mind. In a similar case, it is said "that if the familiarity did not create a sense of shame and not contrary to the will of the prosecutrix, there would be no offense.' Hand v. State, 88 Texas Crim. Rep., 431. We do not quote the evidence, but we have carefully read it. The incident took place while the prosecutrix and appellant were riding together in an automobile at night-time. They had a companion, a young man. He got out of the car at a certain point. Appellant, a youth of about seventeen years of age, and the prosecutrix, riding on the front seat of the car, turned. into a lane and proceeded some distance away. The car was stopped. The appellant put his arms around the prosecutrix and used words indicating the wish that she submit to him and asked her to get on the back seat with him. This she did. On direct examination she said: "Then he told me to get on the back seat, and he threw me on the back seat of the car." On crossexamination, she said: "We were sitting on the front seat, and he asked me to get over on the back seat and I did. He didn't throw me on the back seat, but he had hold of my arm and made me get over there. He had hold of my arm all of the time. He asked me to get there on the back seat and I did so. He didn't throw me on the back seat. He just the same as done it, he had hold of my arm. I objected to getting over there." There are other curcumstances indicating that the advances of the appellant were not objectionable. Their companion in the automobile on the occasion mentioned above, had previously, upon the same evening, committed an indecent assault upon the prosecutrix. She was voluntarily in his company and that of appellant. She consented to turn aside with the appellant after their companion got out of the car, although her acquaintance with the appellant was slight. When she returned, her parents had discovered her absence and were looking for her. Under these circumstances she reported the assault.

The evidence, we think, presents an issue of fact concerning the effect of the appellant's conduct upon the prosecutrix, his intent in committing it and her consent to it. These issues were not submitted to the jury but practically withdrawn from them by the charge from which we have quoted.

The judgment is reversed and the cause remanded.

Reversed and remanded.

H. J. KITCHENS V. THE STATE.

No. 6553. Decided January 11, 1922.

Intoxicating Liquors-Possession of Equipment-Repeal of Law.

The effect of the repeal of the law of possession of equipment for the manufacture of intoxicating liquors, etc., abates the prosecution in the instant case. Following Cox v. State, 90 Texas Crim. Rep., 256, 234 S. W. Rep.,

531.

Appeal from the District Court of Milam. Tried below before the Honorable John Watson.

Appeal from a conviction of unlawful possession of equipment for the manufacture of intoxicating liquor; penalty, one year imprisonment in the penitentiary.

U. S. Hearrell, for appellant.

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

MORROW, PRESIDING JUDGE.-The conviction is for the unlawful possession of equipment for the manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The phase of the statute upon which the prosecution is founded was repealed by the Act of the Thirty-sixth Legislature, Second Called Session, chapter 78, page 229. The effect of its repeal was to abate the prosecution. This is in consequence of Article 16 of the Penal Code.

The point is decided in Cox v. State, 90 Texas Crim. Rep., 256, 234 S. W. Rep., 531, and Petit 1. State, 90 Texas Crim. Rep., 336, No. 6510, not yet reported.

The judgment is reversed and the prosecution ordered dismissed. Reversed and dismissed.

ANTONIO SOLOSKY V. THE State.

No. 6519. Decided January 11, 1922.

1.-Unlawfully Carrying Pistol-Own Premises-Judgment-Divorce.

Where the decree of divorce gave the wife the complete and exclusive control of the premises and the rents and revenues therefrom for supporting her minor children, etc., and only gave the husband, the defendant, the right to see and visit such children but not to interfere with the management of them or the property, he could not claim the same as his own premises under the act of unlawfully carrying a pistol.

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

Where, upon trial of unlawfully carrying a pistol, the evidence showed that the defendant appeared on the porch of the house occupied by his divorced wife and immediately drew a pistol upon her, etc., there was no error in admitting in evidence all the acts of the defendant which were part of the res gestae, although some of the acts were probably not so, but were not pointed out in defendant's bill of exceptions, the same being too general. Following McGrath v. State, 35 Texas Crim. Rep., 442, and other cases. 3.-Same-Rule Stated-Bill of Exceptions-Objections to the Whole Testi

mony.

When the attack in the bill of exceptions is against the whole of the testimony, the trial court is not in error in overruling the objection where he would have been authorized to exclude only a part. Following Tubb v. State, 55 Texas Crim. Rep., 623; besides, some of the testimony objected to would have been admissible to show that the defendant was not on the premises to see his children but to interfere with the management of the property.

4.-Same-Case Stated-Own Premises-Judgment-Decree of Divorce.

The place at which the defendant exhibited the pistol was not his own premises within the meaning of the statute. The judgment of the court, for the time being, divested him of the right of occupancy and placed it in another, giving him permission only to visit it for the specific purpose stated in the judgment. Following Zallner v. State, 15 Texas Crim. App., 24, and other

cases.

Appeal from the County Court of Harris. Tried below before the Honorable John W. Lewis.

Appeal from a conviction of unlawfully carrying a pistol; penalty, sixty days confinement in the county jail.

The opinion states the case.

J. P. Rogers and J. M. Gibson, for appellant.

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

MORROW, PRESIDING JUDGE.-Conviction is for unlawfully carrying a pistol; punishment fixed at confinement in the county jail for sixty days.