session," the conviction should be assigned to the third count. The second count in the indictment was duplicitious as held by this court in Todd v. State, 89 Texas Crim. Rep., 99, 229 S. W. Rep., 515, but the third count charging "possession" was good under the law as it was when the indictment was presented and the case tried. There might be some merit in the motion if the Legislature at its called session in 1921 had not so amended the State-wide Prohibition Law as to repeal that portion of it which had formerly made possession of intoxicating liquor an offense. (See First and Second Called Sessions, Thirty-seventh Legislature, chapter 61, page 233.) By the provisions of the amendment the possession of intoxicating liquor is not now made an offense, unless the same is for the purpose of sale.

The motion for rehearing was filed before the effect of this amendment had become a matter of construction. We have had occasion many times recently to hold that an indictment which merely alleges the "possession" of intoxicating liquor charges no offense against the law as amended. There being no saving clause in the amendment it has become necessary in many cases to reverse judgments and order a dismissal of prosecutions where the offense alleged was possession only. (See No. 6571, Dossett v. State, 90 Texas Crim. Rep., 458; and 6570, Williams v. State, 90 Texas Crim. Rep., 455; opinions rendered December 21, 1921; Rozier v. State, 90 Texas Crim. Rep., 337, 234 S. W. Rep., 666.)

By reason of the amendment referred to the third count in the indictment is defective. In the absence of a saving clause in the amendment no further prosecution can be had under that count as written. The motion for rehearing must therefore be overruled.

Overruled.

W. S. LYNCH V. THE STate.

No. 6569. Decided December 21, 1921.

Rehearing denied January 25, 1921.

1. Assault to Murder-Statement of Facts-Practice on Appeal.

In the absence of a statement of facts and a bill of exceptions, there being a sufficient indictment and charge of the court, the judgment must be affirmed.

2. Same-Statement of Fact-Practice on Appeal-Rehearing-Executive Clemency.

Where, in his motion for rehearing, it was stated that for some reason unknown to counsel there was a failure to file the statement of facts, etc., this court can give no relief in the absence of a bill of exceptions, and a showing that appellant has been deprived of a statement of facts after the

exercise of due diligence on his part; and executive clemency would be the only remedy.

Appeal from the Criminal District Court of Dallas. Tried below before the Honorable Robt. B. Seay.

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

The opinion states the case.

W. O. Scott, for appellant.

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

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

The record is before us without a statement of facts or bills of exception. We have examined the indictment, which seems to be in conformity with the statute, and the charge of the court, which presents the law of the case fairly. In this condition of the record no other matter is before us for consideration, and the judgment of the trial court will be affirmed.

Affirmed.

ON REHEARING.

January 25, 1922.

LATTIMORE, JUDGE.-At a former day of this term this case was affirmed, there appearing in the record neither statement of facts nor bill of exceptions, and the matters of procedure involved appearing to us to be in conformity with law.

There is now filed on behalf of appellant a motion for rehearing in which it is stated that at the time of his trial he was represented only by counsel appointed by the court, and that thereafter he employed and paid an attorney to take charge of his appeal, and that for some reason unknown to counsel who files this motion, said attorney failed to have a statement of facts prepared and filed for presentation to us. We regret that a record should appear before us in this condition, but find ourselves unable to afford appellant any relief. It is not made to appear that any bills of exception were taken during the trial of his case, nor have we any authority given us by statute to grant any sort of relief to one who appears before us without a statement of facts, unless it is made to appear that he has been deprived of same after the exercise of due diligence on his part or in his behalf. One who employs an attorney of his own choosing who fails to do something made necessary by statute in order to properly present his case before us, is given no remedy at the hands of this court for failure or re

fusal of such attorney to do that which he ought. We have no option but to overrule appellant's motion. We are to consider the case as made by the record before us in the absence of some affirmative injury shown to us to have been inflicted upon the accused by which he was deprived of a proper record. The showing made by appellant's attorney may be made the basis of an appeal to the Chief Executive. The motion for rehearing will be overruled.

Overruled.

FEBRUARY, 1922

NATHAN BRISCOE V. THE State.

No. 6248. Decided June 8, 1921.

Rehearing denied February 1, 1922.

1.-Murder-Evidence-Rebuttal-Defective Vision.

Where, upon trial of murder, the defendant claimed that deceased made an attack upon him of such a character as did not comport with the ordinary conduct of one of his age and defective vision, there was no error in admitting testimony in rebuttal that deceased's eyesight was very bad, and that he could not recognize persons close to him, etc.

2.-Same-Evidence-Pocket Knife-Rebuttal.

Where, upon trial of murder, the defendant claimed that deceased attacked him with a knife and cut his clothes, which were exhibited to the jury, and it was a controverted question whether deceased ever opened his knife, and it was the theory of the State that defendant cut his own clothes, there was no error in permitting the State in rebuttal to prove that when defendant was arrested he had a very sharp knife in his possession, whereas the evidence showed that the closed knife found near the body of deceased was very dull and in a generally delapidated condition.

3.-Same-Evidence-Bloody Clothes-Practice in Trial Court.

Where the trial judge certified that the evidence with reference to the introduction of clothing worn by deceased at the time of the homicide was substantially the same as upon the former trial, to show the attitude of the parties, etc., there was no reversible error.

4.-Same-Evidence-Self-Defense-Right

Charge.

of Going

Armed-Requested

Where, upon trial of murder, the record showed on appeal that a full, fair, and untrammeled charge on self-defense, both from attack and on the ground of communicated threats was submitted to the jury in the main charge, and this was supplemented by a special charge on the same subject, and there being no instructions in any way restricting self-defense, there was no necessity for giving the requested charge that defendant had the right to seek an explanation and that his going armed would not affect his right of self-defense. Following Willeford v. State, 42 S. W. Rep., 972, and other cases.

5.-Same-Instrument Used-Deadly Weapon-Charge of Court-Presumption.

Where, upon trial of murder, the court's main charge, in connection with his explanation to the jury of the law of self-defense, included Article 1106, P. C., but made no application of the law as therein stated to the facts of the instant case, held: that under the facts there was no error in refusing a requested charge instructing the jury that if deceased was using a knife in his attack on defendant and that said knife was such as would have been calculated to inflict death or serious bodily injury, that then the law presumed that it was the design of the deceased to inflict such injury, etc., as the evidence in the case did not raise such issue.

6. Same-Deadly Weapon-Pocket Knife-Charge of Court-Requested Charge.

A requested charge which sought to have the jury instructed that if deceased used the knife in an attack upon defendant, that the law presumed that he designed to injure, etc., was not correct as a matter of law under the facts in the instant case, the evidence showing that the knife which was found near the deceased was closed at the time of the difficulty and was in such condition that it could not be termed a deadly weapon, and it was therefore no reversible error in not submitting Article 1106, supra, with reference to the instrument used by the deceased.

7.—Same-Requested Charges-Practice in Trial Court-Instrument Used.

It is the duty of the trial court to give charges as asked with or without modifications, or to refuse them. Following Jones v. State, 22 Texas Crim. App., 620, and other cases; and where the court refused a requested charge under Article 1106, supra, and the record showed that there was no testimony that the alleged knife used by the deceased was a deadly weapon, or one with which death or serious bodily injury could be inflicted, it was not necessary to charge on said article. Following Goodman v. State, 49 Texas Crim. Rep., 188, and other cases; distinguishing Kendall v. State, 8 Texas Crim. App., 579, and other cases.

8. Same-Self-Defense-Charge of Court-Attack, Actual or Apparent.

Where defendant's right of self-defense against an attack or threatened attack on the part of deceased causing reasonable expectation or fear of death or serious bodily injury was fully submitted in the charge of the court in the instant case, defendant's rights are fully safe-guarded and there was no reversible error.

9.-Same-Rehearing-Presumption of Attack-Practice on Appeal-Article

743.

Where appellant again in his motion for rehearing urged that the trial court committed reversible error for failure to submit the presumption of law in Article 1106, P. C., this court, after again reviewing the record, adheres to the decision that the facts in the instant case did not require the court to submit defendant's requested charge on this issue, and in any event this court is forbidden to reverse and remand for errors or omissions in the matter of charges which it does not believe to have been of any possible injury to defendant under Article 743, C. C. P.

Appeal from the District Court of Comanche. Tried below before the Honorable J. H. Arnold.

Appeal from a conviction of murder; penalty, twenty years imprisonment in the penitentiary.

The opinion states the case.

Calloway & Calloway, and A. R. Eidson, for appellant.-On question of instrument used and presumption of law: Briggs v. State, 6 Texas Crim. App., 144; Jones v. State, 17 id., 612; Duke v. State, 120 S. W. Rep., 894; Fread v. State, 210 id., 695; Mason v. State, 228 id., 952, and cases cited in opinion.

R. H. Hamilton, Assistant Attorney General, and Smith & Woodruff, for the State.-On question of instrument used, and charge of court: Renow v. State, 120 S. W. Rep., 174; Reagan v. State, 157 id., 483; Best v. State, 135 id., 581; Bankston v. State, 175 id., 1068, and cases cited in opinion.

HAWKINS, JUDGE.-Conviction was for murder. Punishment was assessed at twenty years in the penitentiary. This is the second appeal. The opinion as reported on the former hearing will be found in 87 Texas Crim. Rep., 375. The facts developed on the subsequent trial were substantially the same as appears in the former opinion, and will not be set out here unless in connection with the discussion of some assignment of error it becomes necessary to revert to some portion of the testimony.

In rebuttal the State proved over appellant's objection by a son of deceased that the latter's eyesight was very bad, and he could not see well enough to recognize a person close to him, and that he could not recognize witness when meeting him except by his voice. The bill presenting this alleged error is qualified by the trial judge to the effect, that appellant himself testified that he had known deceased about forty years, and knew his eyesight was impaired. Deceased is shown to have been a man about seventy years old. Appellant and his witnesses testified to an attack upon appellant by deceased of such a character as did not comport with the ordinary conduct of one of his age and defective vision, and we see no error in the admission of this evidence. This question seems to be practically the same one decided adversely to appellant in the sixth subdivision of the former opinion.

Appellant claimed that deceased attacked him with a knife, and cut his clothes, which were exhibited to the jury. I was hotly contested by the State whether deceased ever had his knife opened at all during the difficulty that resulted i is Cath. It was evidently the theory of the State that appellant cut his own clothes to make it appear that he was defending against an attack with a knife. In rebuttal the State proved by the sheriff that when he arrested appellant he had a knife in his possession which was very sharp; whereas the evidence showed the closed knife found near the body of deceased was very dull, and a generally dilapidated condition. We are of opinion this evidence was pertinent upon the issue as to the cuts upon appellant's clothing. It does not occur to us that appellant's complaint is tenable that the jury may have considered it as evidence indicating that he