"And where there are several causes to arouse passion, although no one of them alone might constitute adequate cause, it is for you to determine whether or not all such causes combined might be sufficient to do so. An assault and battery by the deceased upon the defendant producing pain or blood-shed is deemed in law to be adequate cause; but, if such assault and battery was committed upon the defendant by deceased prior to the difficulty and occurred a sufficient length of time. before the killing for the mind of a person of ordinary temper to become capable of cool reflection, such assault alone would not constitute adequate cause."

Objection was urged to the latter part of the charge (Bill of exceptions No. 11); first, because the issue was not raised by the evidence; second, because the same was a charge on the weight of the evidence; third, because the assault by deceased on appellant, and the shooting, was a continuous transaction. The evidence already reviewed will sufficiently show we think that the issue was raised, and that the shooting. of deceased, and the assault by her on appellant was not a continuous. transaction. "If 'cooling time' is an issue, the jury and not the court is entitled to decide whether defendant's mind had time to cool." (Branch's Crim. Law, Sec. 506; Mackey v. State, 13 Texas Crim. App., 363; Ross v. State, 53 Texas Crim. Rep., 279. This issue was left for the jury to determine, and was not so framed weight of the evidence.

as to be on the

Appellant requested the court to charge upon her right to arm herself and go upon the premises of deceased to seek the latter's husband. for the purpose of getting him to protest with deceased against further assaults on appellant. (Bill No. 13.) If the court had charged on self-defense, and limited it in any way, the requested charge would have become pertinent. If the court was right in refusing to submit selfdefense, then there was no occasion to give the special charge, and the question reverts to one already considered.

It appears from Bill No. 16 that while V. A. Wallace, the sheriff, was on the witness stand, having been called by accused, the district attorney asked him on cross-examination: "You say you haven't been interested in her defense?" to which he replied, "No, sir." He was then asked, "Didn't you state this week you would have to stay with her because you didn't want the job of hanging her?" to which he replied, "No, sir." Appellant objected to the last question, which was sustained, and the court immediately instructed the jury not to consider the question. The entire bill consists of the two questions and answers. It nowhere appears in the bill what testimony had been given by the witness on direct examination. The State had a right to investigate his interest or bias, and while the question as it stands was improper, yet on account of the incompleteness of the bill, we are not prepared to say but that the prompt action of the trial judge relieved it of the hurt, if any.

We see no error in permitting Dr. Taylor to testify that the wound inflicted on deceased was a "serious" wound. Appellant urges that the question was not whether it was "slight or serious," but whether "fatal." (Bill No. 17.) We do not regard the matter of sufficient importance to discuss it further.

After deceased had been wounded by appellant, and treated by Dr. Taylor, the local physician, he recommended that she be taken to Texarkana, to the "Pine Street Sanitarium" and placed under the treatment of Dr. Kitrell. While upon the witness stand Dr. Taylor testified over objection (Bills Nos. 18 and 19), that the sanitarium in question was one of the best in that part of the country, and used by his patients; and that Dr. Kitrell's standing as a physician and surgeon was good; that he was recognized as one of the best. If neglect or improper treatment had been an issue, and no testimony in evidence as to the care or treatment received by the patient after going to the sanitarium a different question would be before us. While the examination of the witnesses would indicate a purpose on the part of appellant's counsel to raise such an issue, yet the same was not submitted by the court; no objections were made because of the omission; and no special charge on the subject requested. In this condition of the record we do not consider the evidence complained of as seriously harmful, if so at all.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.

ON REHEARING.

January 25, 1922.

LATTIMORE, JUDGE.-It is so earnestly insisted that we were wrong in upholding the action of the lower court in refusing to charge on self-defense herein, that we have again carefully reviewed the entire facts, but are thereby more strongly convinced of the correctness of our former opinion in this record. This court is commanded by Article 743, Vernon's C. C. P., to affirm judgments when the errors complained of relate to disregard of any one of the nine preceding articles concerning charges, unless it appears from the record that such omission or commission was calculated to injure the rights of the accused. One of the nine preceding articles referred to commands the trial court to give to the jury the law applicable to the issues made by the facts. To be tenable, appellant's complaint of the failure to give such charge must be that this in reason appears to have had a harmful effect upon her effort to secure an acquittal in her case.

The unchallenged facts show that while appellant was passing the home of deceased a short time before the alleged homicide an altercation took place, after which appellant drove on to her home, se

cured a breech-loading shotgun and three shells, and came back to the home of deceased where the homicide took place. Three statements regarding what there occurred were made by appellant; one to the sheriff of the county the next morning, one to the grand jury investigating her case, and one while a witness on her trial. No eyewitness save appellant testified in her behalf, or to any fact remotely tending to raise any issue of self-defense. Her statement made to the sheriff is substantially set forth in our opinion, but a few illuminating details were omitted. The sheriff went to her house for the purpose of arresting her husband upon information, which led to the officer's belief that her husband had done the shooting. Appellant at once informed him that she had done so and told him that after her little row with deceased that she had gone home and gotten her shotgun and shells with the intention of using them to kill deceased with. The language used by her was pointed and forceful. She said she went back to Melissa's house and hollered for her to come out or she would shoot her out; that getting no response she went around the house and shot through a window into the house; that she heard deceased go from the room into which she shot, to another room; that she then fired into the room to which deceased had gone; that deceased still not coming out, she went to the door and kicked it open and shot deceased, and that if she had known that shot had not killed her she would have finished her before she left. It is perfectly evident that there is nothing in this narration which in any way suggests any self-defense. Appellant's statement before the grand jury was also in evidence and is set out fully in our opinion. There is no substantial difference except that appellant testified there to some statements made by deceased which we do not think materially change the attitude of the parties. Appellant's testimony when on the witness stand is also set out in the opinion, and without much change she again affirms the facts substantially as outlined in her original statement to the sheriff. True, in her testimony she says that she went down to the home of deceased because she thought herself to be in danger, and that she was scared, and that she shot deceased because she thought the latter was going to shoot her. What weight could any court or jury give to verbal claims so overwhelmingly denied and refuted by admitted acts and deeds of the claimant? "We canna hear the words ye say for thinkin' o' the deeds ye do," were the apt words of a canny Scot. It is as though A-on trial for killing B-should swear that he shot in self-defense, and on being asked what B was doing at the time he was shot, he should answer, that he was asleep; or as if C-charged with killing D-should swear that he took his gun and went to D's house, and called him to the door, and upon seeing him D fled and C shot, and testified that he shot in self-defense, no error would be committed in either case in refusing to submit self-defense.

Self-defense is a defensive and not an offensive act, and where the issue is only slightly raised as not to justify a verdict based thereon,

it need not be submitted to the jury. Burton v. State, 67 Texas Crim. Rep., 149, 148 S. W. Rep., 805. Nor where the evidence is of such nature as to preclude reasonable belief that the accused acted in selfdefense. Childs v. State; 22 S. W. Rep., 1039; Nairn v. State, 45 S. W. Rep., 703; Godwin v. State, 39 Texas Crim. Rep., 404; Burks v. State, 40 Texas Crim. Rep., 167; Monroe v. State, 47 Texas Crim. Rep., 59; Lentz v. State, 48 Texas Crim. Rep., 580. Appellant's own testimony placed deceased on the latter's porch as appellant came up with the gun. Deceased retreated into her house.-appellant goes around it, shoots into a window, hears deceased go to another room, shoots into said other room, hears nothing further and goes to the gate, sees a door opening a little way, goes back to said door, opens it, sees a movement, and shoots and kills deceased. This is the condensed narration of the movements of appellant, not one of which is an act of defense but each of which is an act of offense. Her original statement to the sheriff, when the facts were fresh in her mind and before she was confronted with a court trial, is so in consonance with her movements as detailed and so entirely contradictory of any thought, element or suggestion of self-defense, as to bring this case entirely within the rule announced in the cases above cited.

We see no reason to conclude our opinion in error in sustaining the charge of the court on cooling time.

We would not be inclined to hold that reversible error was committed by the asking of a question by the State, to which the objection of the accused was sustained; unless such question involved a much graver possibility of injury to the accused than appears in the question complained of in bill of exceptions No. 6, appellant's objection to which was sustained.

Believing the case correctly decided, the appellant's motion for rehearing will be overruled.

Overruled,

TOMMIE COOK V. THE STATE.

No. 5958. Decided October 12, 1921.

Rehearing denied January 25, 1922.

1. Intoxicating Liquor-Transporting-Possession-Duplicitious-Pleading. Where, upon trial of transporting intoxicating liquors, etc., the indictment in the second count was obnoxious on motion to squash, to the rule of duplicitious pleading, the motion to quash should have been sustained. Following Todd v. State, 89 Texas Crim. Rep., 99.

2.-Same-Rehearing-Possession-Repeal of Law-Saving Clause Omitted.

While the second count in the indictment was duplicitious, yet the third count charging possession was good under the law as it was when the in

dictment was presented, and the case tried, but since the amendment repealing the possession of intoxicating liquors, the same is not now made an offense, unless the same is for the purpose of sale; and there being no saving clause in the amendment, the judgment must be reversed and the cause dismissed, and no further prosecution can be had under that count.

Appeal from the District Court of McLennan. Tried below before the Honorable Richard I. Munroe.

Appeal from a conviction of unlawfully possessing and transporting intoxicating liquors, etc.; penalty, one year imprisonment in the penitentiary.

The opinion states the case.

Williams & Williams, and John B. McNamara, for appellant.

R. H. Hamilton, Assistant Attorney General, and Frank B. Tirey, and F. M. Fitzpatrick, for the State.

MORROW, PRESIDING JUDGE.-The conviction is for possessing and transporting intoxicating liquors; punishment fixed at confinement in the penitentiary for one year.

The count in the indictment submitted to the jury charged that appellant did "receive, transport, export and deliver and solicit and take orders for, and did furnish, spirituous, vinous and intoxicating liquors."

The motion to quash the indictment, in substance, upon the ground that it attempted to charge several distinct felonies in the same count, was overruled.

The prosecution is under Chapter 78, First and Second Called Sessions, Laws of 1919. The count in the indictment is in practically the same language as that before the court in the case of Todd v. State, 89 Texas Crim. Rep., 99, 229 S. W. Rep., 515. For the reasons there stated, the indictment in the instant case was defective, and there was error in refusing to sustain the motion to quash it.

The judgment is therefore reversed and the prosecution ordered dismissed.

ON REHEARING.

Dismissed.

January 25, 1922.

HAWKINS, JUDGE.-Motion for rehearing was filed by the State on October 26, 1921. It it insisted that we overlooked in our former opinion the fact that by the third count in the indictment appellant. was charged with "possession" of intoxicating liquor, and that the third not being subject to the complaint of duplicity, and the jury having returned a general verdict of guilty both for "transporting" and "pos