curring many years subsequent thereto, evidence thereof was not admissible, and because the State was eliciting the details of the offense of which he was convicted in the Federal court. In the instant case appellant filed an application for suspended sentence. It was permissible on this issue for the State to show that he had been convicted and sentenced to the Federal penitentiary. It would be immaterial whether the conviction inquired about occurred prior or subsequent to the date of the offense for which he was on trial. When the question of suspended sentence became an issue the character of accused at the time of the trial, the time he is seeking a suspended sentence, is the matter which the jury is to determine, and not alone his character prior to the time of the alleged commission of the offense for which he is on trial. Williams v. State, 83 Texas Crim. Rep., 26, 201 S. W. Rep., 188. We cannot agree to appellant's complaint that the State was permitted to go into the details of the Federal offense. The only inquiry made of him was if it was not for a conspiracy to sell liquor to the soldiers at Fort Worth. That was the offense itself; no details of the manner of the commission of the offense being inquired into. After this admission on the part of appellant, the State, over his objection, was allowed to introduce a copy of the judgment of conviction from the Federal court. Many objections were urged by appellant to the admission of this instrument. Without discussing the objections in detail we will dispose of the matter upon the ground that we have been unable to discover where any injury could have resulted to appellant, even though the copy of the judgment was erroneously admitted. It showed, and could have shown no more than appellant had already admitted, to-wit: that he had been convicted in the Federal court of a conspiracy to sell intoxicating liquor to the soldiers. The court in his charge limited all of this testimony to a consideration of the question of whether the jury would suspend sentence in the event they convicted appellant. Appellant excepted to the charge of the court in many particulars. to all of which we have given careful attention. The paragraphs of the charge to which special exceptions were directed have been examined by us in the light of the exceptions, and if any foundation existed for the exceptions at the time they were presented, corrections must have been made where objectionable features were pointed out by the exceptions, because the charge as it now appears in the record is not subject to the complaints urged. After a careful review of the record before us we discover no error which would authorize a reversal of this judgment, and the same is therefore ordered affirmed. Affirmed. ON REHEARING. January 11, 1922. MORROW, PRESIDING JUDGE.-We have considered the questions. raised in the motion for rehearing in the light of its interesting oral presentation by counsel. The criticisms of the court's charge, while not discussed in detail, were not overlooked on the original hearing. We yet hold the view that it was not subject to any of the faults pointed out in the exceptions. Paragraph 11a is assailed as a restriction upon the right of the appellant in failing to make available the law of apparent danger. The paragraph mentioned is one in which the jury was instructed upon appellant's right to arm himself and seek an interview with the deceased for a peaceful and lawful purpose, and thereir it is said: and if you believe from the evidence that the defendant so approached the deceased, with such purpose in view, and that when he did so, if he did, the deceased made an attack upon the defendant with a rock, if he did so, and that the defendant, acting in his selfdefense as hereinbefore defined, shot and killed the deceased, or if you have a reasonable doubt as to whether he so acted or not you will give him the benefit of such doubt and find him not guilty." Immediately preceding the paragraph mentioned, in Paragraph 11, the jury was thus instructed: "Now, if you believe from the evidence that the defendant shot and killed the deceased, and if you further believe that at the time he did so it reasonably appeared to the defendant, viewing it from his standpoint, under all the circumstances preceding and surrounding him at the time, that the deceased was about to make an attack, or was making an attack on him with a rock and the defendant at the time shot the deceased, if he did so, believed that he was in danger of being killed or suffering serious bodily injury at the hands of deceased, then the defendant was not bound to retract, but had the right to shoot deceased and to continue to shoot until he believed himself out of danger, and if you believe the defendant so acted in shooting deceased, if he did so, or if you have a reasonable doubt whether he did so act, you will acquit him and say by your verdict 'Not guilty.'" From the State's standpoint, as developed by its witnesses, there was no demonstration made by the deceased. According to the version of appellant and his witnesses, the act of the deceased at the time of the homicide upon which he predicates the theory of self-defense is that upon his coming into the field where deceased was picking cotton, appellant spoke to him and deceased threw off his sack and stooped down and picked up a rock, and as he came up the appellant shot. Appellant, after detailing various previous difficulties, one on the same day, in which deceased had drawn a knife on him, said: "When I got back to the field I walked up to six or eight feet of Oscar Shelton, he was picking cotton. I walked up and said: 'Well, Jackie, it seems like we cannot get along,' and about that time, with an oath, he threw his sack off, stooped down and picked up a rock and started to throw it, and I pulled my revolver and fired the first shot because I thought he was carrying out his threat. I thought he was going to kill me with the rock." The act of deceased, as described. by the appellant, would seem to have passed beyond the point of preparation for attack and reached the point which called upon appellant to defend against actual danger. Simmons v. State, 55 Texas Crim. Rep., 448; Cavil v. State, 25 S. W. Rep., 628. We note that the extent of the force used in repelling the attack is not involved. In submitting the law of provoking the difficulty as a qualification of the right of self-defense, the court did not depart from the principles governing that issue but chose language which, so far as we are able to discern, was in full consonance with approved precedents. In his motion for rehearing appellant says: "The jury are in substance instructed in the XII paragraph of the charge that if they find that the appellant provoked the difficulty for any purpose, he has no right of self-defense, but must be convicted of murder or manslaughter." The charge told the jury, in substance, that if the appellant, with intent to kill the deceased or to do him injury by some act reasonably calculated to bring about the occasion and thereby provoke the deceased to attack him, he could not use the attack thus provoked to justify the homicide, but under such circumstances would be guilty of murder or manslaughter, according to the intent with which he acted. In conveying this information to the jury, the language selected by the court was in substance like that quoted and commented upon in other cases. See Woodward v. State, 54 Texas Crim. Rep., 86; Young v. State, 53 Texas Crim. Rep., 244; Robertson v. State, 83 Texas Crim. Rep., 244; Mason v. State, 88 Texas Crim. Rep., 646. The charge on the law of provoking the difficulty was not wrong in that it made the jury understand that if appellant fired the fatal shot in defending against an attack which he had intentionally provoked by the use of means reasonably adapted to that end with the intent to kill the deceased or do him serious bodily harm, his offense was murder, but if he had no intent to kill or do serious bodily harm, but intended to do some lesser harm, he still would not have the perfect though he might have had the imperfect right of self-defense. Jones v. State, 17 Texas Crim. App., 611; Branch's Texas Crim. Law, Sec. 464. In framing the charge to convey this information to the jury, there was no error. It is appropriate in connection with the charge upon this subject to instruct on the converse of the State's theory. Mason v. State, supra, and authorities therein cited. The failure of the court to do so in the instant case was not made the basis of com plaint in an exception to the charge. Doubtless if it had been, the charge would have been made more specific in that respect. The motion is overruled. Overruled. RUDOLFO RODRIGUEZ V. THE STATE. No. 6595. Decided January 18, 1922. 1.-Incest-Indictment-Practice on Appeal. Where, upon trial of incest the indictment followed approved precedent. there was no error in overruling a motion to quash. 2.-Same-Date of Offense-Other Acts of Intercourse-Requested Charge. Where the date of the offense charged was November 4, 1918, and the prosecutrix testified that an act of intercourse took place on such date, and no mention was made by her of any other occurrence between herself and her father, but it developed on cross and re-examination that another act of intercourse with defendant occurred in January, 1919, and this was also testified to by another State's witness. and the State thereupon elected to rely for a conviction upon the act of November 4, 1918, under a proper charge limiting same to that date, there was no error in refusing a requested charge that the jury couid not consider, for any purpose, the evidence of the other act of intercourse. Following Bradshaw v. State, 82 Texas Crim. Rep., 351. 3.-Same-Other Acts of Intercourse-Evidence. If evidence of other acts of carnal intercourse fairly tends to shed light upon any controverted issue in the case on trial, it is not a valid objection thereto that it tends to show that the accused was guilty of another offense than the one on trial. Following Battles v. State, 63 Texas Crim. Rep., 147, and other cases. 4.-Same-Case Stated-Other Acts of Intercourse-Practice in Trial Court. Where defendant by cross-examination of prosecutrix and by the introduction of evidence contradictory of that given by her sought to destroy the State's case as to the acts of intercourse alleged in the indictment, and denied such intercourse, there was no error in admitting as evidence that after such act of intercourse another act of intercourse was indulged in. shortly thereafter. 5. Same-Accomplice-Charge of Court-Requested Charge. Where, upon trial of incest, exception was taken to the court's charge because same did not instruct the jury that the prosecutrix was an accomplice, but it appeared from the record that this question was submitted to the jury as one of fact, under a proper charge of the court, there was no reversible error; and there was no error in refusing requested charges on the same subject. 6. Same-Competency of State's Witness-Discretion of Court. Where the State's witness was twelve years of age, and testified on his voir dire as to the obligation of his oath as a witness, it was within the discretion of the court to permit him to testify. 7.-Same-Newly Discovered Evidence-Rule Stated. 9 new trial will not be granted to obtain newly discovered evidence which is wholly impeaching. 8.-Same-Argument of Counsel-Practice on Appeals. Where the remarks of the private prosecutor were not calculated to prejudice the rights of the defendant to the extent to call for the granting of a new trial, there was no reversible error. Appeal from the District Court of Bexar. Tried below before the Honorable S. G. Tayloe. Appeal from a conviction of incest; penalty, five years imprisonment in the penitentiary. The opinion states the case. C. A. Davies, and R. L. Neal, and Clifford H. Davis, for appellant. On question of accomplice testimony: Stewart v. State, 32 S. W. Rep., 766; Gillispie v. State, 93 id., 556; Bohannon v. State, 204 id., 1165. On question of other acts of sexual intercourse: Hollingsworth v. State, 189 S. W. Rep., 488; Lawrence v. State, 219 id., 460; Wingo v. State, 229 id., 859, and cases cited in opinion. On question of child witness: Murphy v. State, 35 S. W. Rep., 174. On question of argument of counsel: Smith v. State, 68 S. W. Rep., 995; Roach v. State, 232 S. W. Rep., 504. R. G. Storey, Assistant Attorney General, for the State.-On question of other acts of intercourse: Bohannon v. State, 84 Texas Crim. Rep., 8, and cases cited in opinion. LATTIMORE, JUDGE.-Appellant was convicted in the District. Court of Bexar County of incest, and his punishment fixed at five years in the penitentiary. The parties involved were Mexicans. daughter of appellant. The prosecutrix was the Appellant's motion to quash the indictment was correctly overruled. Said indictment was in approved form and charged that appellant on a certain date in Bexar County carnally knew Natalia Rodriguez, she being then and there his daughter. The date of the offense charged was November 4, 1918, and that an act of intercourse took place on such date was testified to by prosecutrix in her evidence in chief. On said examination no mention was made by her of any other occurrence between herself and her father. She was subjected to a grueling cross-examination in an apparent effort to show by her admissions and surrounding facts, that her testimony was both untrue and unreasonable. She was also crossexamined vigorously upon matters tending to show that she had had |