expectation or fear of death, or serious bodily injury, etc." See Goodwin v. State, 39 Texas Crim. Rep., 404; Simmons v. State, 55 Texas Crim. Rep., 448; Cavil v. State, 25 S. W. Rep., 628; Rodriquez v. State, 71 Texas Crim. Rep., 108, 158 S. W. Rep., 537; Coker v. State, 22 Texas Crim. App., 20; Ellison v. State, 34 S. W. Rep., 945. The evidence, in our opinion, justified the charge on the law of provoking the difficulty. It was appellant's theory that he fired to protect himself from an attack by the deceased. There is evidence that immediately before the attack, the appellant referred to the previous encounter in which insulting epithets had been exchanged and in which, according to appellant, he had been by the deceased ordered out of his house. If the deceased made the attack described by the appellant, the evidence justified the inference that it was brought about by the appellant's conduct and words. The things that took place in the house of the deceased a short time before the appellant returned thereto were available to the jury in interpreting the subsequent acts of the appellant. Evidence was not wanting, we think, to support the inference that the appellant, incensed by the first encounter, armed himself, returned to the premises which he had left upon the order of the deceased, and referred to the former altercation for the purpose of causing the deceased to attack him and with the intent when the attack was so made, to shoot and kill the deceased, and that at the time of the homicide, he acted in pursuance of this design. The soundness of this conclusion, we think, is illustrated in the decisions of this court. McGrew v. State, 49 S. W. Rep., 229; Bateson v. State, 46 Texas Crim. Rep., 46; Coleman v. State, 25 S. W. Rep., 772; Tardy v. State, 47 Texas Crim. Rep., 444; Cornelius v. State, 54 Texas Crim. Rep., 186; Barstado v. State, 48 Texas Crim. Rep., 255; Taylor v. State, 47 Texas Crim. Rep., 122; Bice v. State, 55 Texas Crim. Rep., 533.

We discern no evidence which rendered it incumbent upon the court to instruct upon the law of imperfect self-defense, on the theory that in provoking the difficulty the appellant's intent was not to kill but to do the deceased some lesser injury. If the jury believed that the appellant intentionally used means reasonably calculated to cause the deceased to attack him in order that he might use the attack thus provoked as an excuse for injuring the deceased, there is no evidence, so far as we are aware, which suggests that the injury he intended to inflict was other than serious bodily injury or death. The kind of weapon that he chose and the manner in which he used it apparently rebut any intent save that described. Keeton v. State, 59 Texas Crim. Rep., 316, 128 S. W. Rep., 413; Thumm v. State, 24 Texas Crim. App., 702.

The court, in submitting the converse of the State's theory in the charge on provoking the difficulty, after telling the jury the consequences of killing the deceased after appellant had intentionally and by suitable means provoked the difficulty, for the purpose of killing, uses the following expression:

90 T. C.-38

"Unless you believe from the evidence that the said John Lewellen did not intentionally seek and bring on the alleged difficulty with the intent to kill the said John Zurovec."

This is criticised on the weight of the evidence. Upon another trial, the charge should be so framed as to obviate this objection. It was doubtless the idea of the court to inform the jury that although the appellant may have used words or been guilty of conduct which provoked the difficulty, he would not forfeit his right of self-defense unless his words or acts were intended to bring on the difficulty in order that he might kill the deceased.

In Article 1106 of the Penal Code, it is provided that where a homicide takes place to prevent murder, if the weapons used by the party making the attempt are such as would have been calculated to produce that result, it is presumed that the person so using them designed to inflict the injury. A charge on this presumption was not embodied in the court's charge, and an exception to it was reserved upon that ground. We regard the complaint as well founded. As indicated hereinabove, the trial court treated appellant's testimony describing the attack by the deceased as using a "butcher knife." By other evidence in the case, the knife is described as one with a sharp point and with a blade about nine inches long. We understand the statute to be that where one is attacked by an assailant who uses in the attack a weapon calculated to produce death in the manner used, in measuring the right of an accused who defends against such an attack, the law presumes that his assailant intended to kill him. The intent of the assailing party is not a question of fact for the jury (Ward v. State, 30 Texas Crim. App., 687), but if the jury determines that the proof establishes the fact that he was making the attack using the weapon described, the presumption of law is that his intent was to kill. Clark v. State, 56 Texas Crim. Rep., 295. In a case where such an issue is presented, the duty upon the trial court to charge the substance of the statute mentioned appears imperative. McMichael v. State, 49 Texas Crim. Rep., 424; Clark v. State, 56 Texas Crim. Rep., 295. Many illustrations of this rule are found, where, as in the present case, the evidence disclosed an attack with the knife. Williams v. State, 65 Texas Crim. Rep., 437; Hudson v. State, 59 Texas Crim. Rep., 650; Cooper v. State, 48 Texas Crim. Rep., 36. The law fixes no arbitrary terms in which the instruction shall be given to the jury, but the obligation to give the charge is not met by the charge ordinarily given on the issue of self-defense. In all such cases, the accused defends against the attack or threatened attack, as viewed from his standpoint at the time. Article 1106, however, is a definite element in the law of self-defense, and where the facts bring the case within the purview of this statute, its substance should be charged. Suggestions to the contrary in Ward v. State, 70 Texas Crim. Rep., 393, 159 S. W. Rep., 272; Alexander v. State, 63 Texas Crim. Rep., 103; and some other cases are out of harmony with the statute and its construction by the

great weight of authority. We have recently had occasion to review various decisions of this court upon the subject in the case of Briscoe v. State, not yet reported. Under the evidence in the instant case, the trial court was not warranted in refusing, in response to appellant's exception, to amend his charge in the respect mentioned.

Lanham, an important witness for the appellant, was a stranger to the jury, and his testimony coincided with that of the appellant but conflicted with that of the state's witnesses. The theory of the state's counsel appears to have been that Lanham, was not, in fact, an eyewitness to the homicide, and in his cross-examination, the idea that this was the view of state's counsel was, by innuendo, made apparent. Predicate was laid for his impeachment, but no impeaching testimony was introduced. He appears to have been a citizen of the county in which the homicide took place, and in which the trial was had. We do not regard the case to come under the rule that is asserted in Phillips v. State, 19 Texas. Crim. App., 158, where, under exceptional circumstances, the court received testimony supporting the character of the witness who was a stranger in the county. In the instant case, we think the court did not err in refusing to receive such testimony. The cases supporting Phillips v. State, supra, and distinguishing it are found in Rose's Notes on Texas Reports, vol. 5, pp. 483 and 484. The instant case, we think, comes within the purview of Warren v. State, 51 Texas Crim. Rep., 599; Morrison v. State, 37 Texas Crim. Rep... 607; Murphy v. State, 40 S. W. Rep., 978.

The circumstances of the homicide are not such as to call for a charge on the relative strength of the parties. Vann v. State, 45 Texas Crim. Rep., 434; Ballard v. State, 71 Texas Crim. Rep., 587, 160 S. W. Rep., 619; Brady v. State, 65 Texas Crim. Rep., 521.

There is an assignment in the motion for new trial supported by evidence, upon the subject of receipt by the jury of evidence prejudical to the appellant during their retirement. The question is one upon which the law is well settled. See Gilbert v. State, 85 Texas Crim. Rep., 597; McDoughal v. State, 81 Texas Crim. Rep., 179; L. R. A., 1917-E, 930. Inasmuch as the question will not likely arise upon another trial, certainly not upon the same evidence, we deem it unnecessary to enter into an analysis of the testimony in order to determine whether the facts are such as to require a reversal upon that ground.

There were some intemperate arguments. On another trial, counsel, no doubt, will refrain from repeating them. We, therefore, pretermit any further comment on them.

The judgment is reversed and the cause remanded.

Reversed and remanded.

MINNIE CADE V. THE STATE.

No. 6599. Decided January 18, 1922.

Intoxicating Liquors-Possession-Repeal of Law.

Upon appeal from a conviction for possessing intoxicating liquors under the so-called Dean Act, the judgment must be reversed and the cause dismissed as by the amendment of said Act the possession of intoxicating liquor is not an offense unless so possessed for the purpose of sale, following Petit v. State, 90 Texas Crim. Rep., 336, recently decided, and other cases.

Appeal from the District Court of Jasper. Tried below before the Honorable V. H. Stark.

Appeal from a conviction for the unlawful possession of intoxicating liquor; penalty, three years imprisonment in the penitentiary. The opinion states the case.

Blake & Neel, for appellant.

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

HAWKINS, JUDGE.-Appellant was indicted a d convicted for possessing intoxicating liquor under the prohibition law prior to the amendment thereof by chapter 61, First and Second Called Session of the Thirty-seventh Legislature, page 233. By the provisions of the amendment the possession of intoxicating liquor is not an offense, unless so possessed for the purpose of sale. The amendment carried no saving clause as to pending cases, and the further prosecution of this case can not be maintained. (See No. 6510, Petit v. State, 90 Texas Crim. Rep., 336, decided November 23, 1921; No. 6493, Francis v. State, 90 Texas Crim. Rep., 399, decided December 7, 1921; No. 6571, Dossett v. State, 90 Texas Crim. Rep., 458; 6570, Williams v. State, 90 Texas Crim. Rep., 455, the last two cases decided December 21, 1921.)

The judgment of the trial court is reversed and the prosecution ordered dismissed.

Reversed and dismissed.

C. R. SAUER V. THE STAte.

No. 6613. Decided January 18, 1922.

Illegal Practice of Medicine-Recognizance-Appeal.

Where, an examination of the record on appeal, it disclosed that the appellant had not complied with the law as to filing the proper recognizance or appeal bond, the appeal must be dismissed on motion by the State.

Appeal from the County Court of Colorado. Tried below before the Honorable John C. Hoyo.

Appeal from a conviction of illegal practice of medicine; penalty, a fine of $50.

The opinion states the case.

No brief on file for appellant.

R. G. Storey, Assistant Attorney General, for the State.-Cited: White v. State, 147 S. W. Rep., 598; Martoni v. State, 166 id., 1169.

LATTIMORE, JUDGE.-Appellant was convicted in the county court of Colorado County of a misdemeanor, and his punishment fixed at a fine of $50.

In order for the jurisdiction of this court to attach upon appeal, it is made necessary by statute that a recognizance or appeal bond be entered into by the accused. Forms for such obligations are to be found in articles 918-919 of Vernon's C. C. P. In the instant case our Assistant Attorney General moves to dismiss the appeal herein because the law in the above particular has not been complied with. An examination of the record discloses that the motion is well taken. There appears in this record an ordinary appearance bond. The motion of the State is sustained, and the appeal is dismissed. Dismissed.

ALEX MARSHALL V. THE STATE

No. 6600. Decided January 18, 1922.

Intoxicating Liquor-Possession-Repeal of Statute.

Where upon appeal from a conviction of possessing intoxicating liquors under the so-called Dean Act, the judgment must be reversed and the cause dismissed, as said Act has been so amended as to amount to a repeal of same. Following Cox v. State, 90 Texas Crim. Rep., 256, recently decided.

Appeal from the District Court of Jasper. Tried below before the Honorable V. H. Stark.

Appeal from a conviction of unlawfully possessing intoxicating liquors; penalty, three years imprisonment in the penitentiary. The opinion states the case.

Blake & Neel, for appellant.

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