the local option law, and he appeals. Reversed and remanded.

Perkins & Emanuel, for appellant. W. H. Shook, Co. Atty. and J. E. Yantis, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and 20 days' imprisonment in the county jail, and prosecutes this appeal.

Appellant contends that the action of the court was erroneous in authorizing the county attorney to change the name of the accused in the information and complaint. Said change occurred in this wise. The complaint charged that Alex Johnson committed said offense, and the information followed the complaint in stating the name of the defendant. In making motion for a continuance or postponement of the trial, appellant stated therein that his name was Alex Lazenberry, and not Alex Johnson, as stated in said information. Motion was overruled, and subsequently the trial was preceeded with, and the county attorney suggested that the name of the defendant was Alex Lazenberry, and asked the court to change said complaint and information, and the court permitted the county attorney to make said change in said complaint and information, stating, as his reason for doing so, that the defendant had suggested his name by filing a motion for postponement, in the case of the state of Texas against Alex Lazenberry. Thereupon the court entered an order upon the minutes of the court that the defendant had suggested his name as Alex Lazenberry, and permitted the county attorney, over the defendant's objections, to change said name in the complaint and information. To which appellant objected and refused to plead thereto. Whereupon the court ordered a plea of not guilty entered for him, and the trial proceeded.

To support appellant's contention that the court erred, he refers us to two cases: Patillo v. State, 3 Tex. App. 442, and Wilson v. State, 6 Tex. App. 156. In the first-named case on a suggestion being made by the county attorney that the information misstated, and the affidavit omitted, the name of the accused, the court below permitted the substitution and insertion of the name suggested by the county attorney. It was held that this vitiated the proceedings and required the dismissal of the cause. Said case is further authority to the effect, that the suggestion of misnomer must come from the defendant. In Wilson's Case, supra, it was held that the law, as it then stood with reference to suggestion of misnomer, was applicable to informations as well as indictments. But further held that, as to prosecution by information, the information alone could be amended where a misnomer was suggested, and that the supporting affidavit could not be amended. There the informa

tion alone was amended by stating the correct name of the defendant on his suggestion; and the contention made was to the effect that the affidavit also should have been changed. The court there held there was no authority to change the complaining affidavit. Both of these cases, as has been seen, go to the extent merely of authorizing the change of the name in the information, and that the suggestion of change must come from appellant. We hold that the affidavit or complaint in this case was not amendable, both because there is no authority to amend the complaint on account of misnomer, and because, even if it be conceded that such amendment could be made, there was no suggestion here coming from the appellant to correct his name in the complaint. The judgment is reversed, and the cause remanded.

HERRIN v. STATE.

(Court of Criminal Appeals of Texas. Oct. 17, 1906.) INDICTMENT

1. GAMING HOUSE.

OWNERSHIP OF

An indictment, alleging that accused bet at a game played at a private residence occupied by a family and commonly resorted to for the purpose of gaming, need not allege the name of the owner of the residence.

[Ed. Note.-For cases in point, see vol. 24, Cent. Dig. Gaming, § 246.]

2. SAME-DESCRIPTION OF BET.

An indictment, alleging that accused bet at a game played at a private residence commonly resorted to for the purpose of gaming, need not allege that any particular thing was bet.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Gaming, §§ 241–243.]

3. SAME-EVIDENCE-SUFFICIENCY.

On a trial for gaming at a private residence occupied by a family, evidence that three or four games, in which five or six persons participated, were played in the residence of accused, sufficiently showed that the residence was a common resort for gambling.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Gaming, § 295.]

Appeal from Nacogdoches County Court; Robert Berger, Judge.

Rafe Herrin was convicted of gaming, and he appeals. Affirmed.

J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. The charging part of the indictment is as follows: did then and there unlawfully play and bet at a game played with cards, said game then and there being played at a private residence, occupied by a family; said private residence then and there being commonly resorted to for the purpose of gaming." Motion was made to quash: (1) Because the indictment fails to charge at whose private residence the game was played, thereby failing to place appellant on sufficient notice to which transaction he was called to answer; and (2) that it did not allege that appellant bet at

the game of cards at such private residence. In regard to the first proposition, we have been cited to no authority which requires the indictment to allege the name of the owner of the private residence. In fact the authorities, so far as we are aware, hold the other way. Prior v. State, 4 Tex. 383; Wilson v. State, 5 Tex. 21; Sheppard v. State, 1 Tex. App. 304, 28 Am. Rep. 422. The second proposition is not supported by the indictment. It shows an allegation to the effect that appellant did bet at a game played at the residence of a private family. It is not necessary to allege that any particular thing was bet; the general allegation being sufficient. Long v. State, 22 Tex. App. 194,

2 S. W. 541, 58 Am. Rep. 633.

Nor do we think the contention is well taken that the evidence is not sufficient. It shows there were three or four games played, in which five or six parties indulged, in appellant's residence, where he and his family resided, and in the dining room of said residence; that these games occurred shortly after the holidays. The two witnesses testifying to these facts participated. We believe that, under the authorities, this is sufficient evidence to show that it was a common resort for gambling. Wheelock v. State, 15 Tex. 257; State v. Norton, 19 Tex. 102; Lynn v. State, 27 Tex. App. 590, 11 S. W. 640; Hopkins v. State (Tex. Cr. App.) 33 S. W. 975; Floeckinger v. State, 45 Tex. Cr. R. 199, 75 S. W. 303.

The judgment is affirmed.

JONES v. STATE.

(Court of Criminal Appeals of Texas. Oct. 24,

1906.)

1. CRIMINAL LAW-APPEAL-RECORD-STATEMENT OF FACTS-TIME OF FILING.

The statement of facts in a criminal case filed 78 days after the adjournment of the term, cannot be considered on appeal.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2876-2878.] 2. SAME-MOTION FOR NEW TRIAL.

Where the statement of facts in a criminal case is filed so late that it cannot be considered on appeal, the Supreme Court cannot review grounds of a motion for a new trial relating to the sufficiency of the evidence and the applicability of the charge to the facts.

Appeal from District Court, Lamar County; Ben H. Denton, Judge.

Lena Jones was convicted of theft from the person, and appeals. Affirmed.

J. E. Yantis, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of theft from the person, and her punishment fixed at seven years' confinement in the penitentiary.

The term of court adjourned on the 26th day of May, 1906, and the statement of facts was filed on August 14, 1906-about 78 days after adjournment of the term. Consequent

ly the statement of facts cannot be considered. The grounds of the motion for new trial relate to the sufficiency of the evidence, and that the charge of the court was not applicable to the facts. These matters cannot be reviewed in the condition of the record. As presented, no error appears, and the judgment is affirmed.

BLAIR v. STATE.

(Court of Criminal Appeals of Texas. Oct. 24, 1906.)

PHYSICIANS AND SURGEONS OFFENSES PRESCRIBING OF COCAINE INDICTMEMNT SUFFICIENCY.

Acts 1905, pp. 45, 46, c. 35, § 2, dealing with the illegal prescription of cocaine by phy sicians, contains a proviso that the section shall not be construed to prevent a physician "from prescribing in good faith for the use of any habitual user of narcotic drugs, such substance as he may deem necessary for the treatment of such habit." An indictment alleged merely that defendant did not "prescribe the same in good faith for the use of the said habitual user." Held insufficient as failing to allege that the prescription was not given for the treatment of the habit.

Appeal from Tarrant County Court; R. F. Milam, Judge.

Dr. C. C. Blair was convicted of illegally giving a prescription for cocaine, and he appeals. Reversed and dismissed.

Orrick & Terrell and Baskin, Dodge & Baskin, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of violating the act of the Twenty-Ninth Legislature, § 2, regulating giving a prescription for cocaine by practicing physicians. Acts 1905, pp. 45, 46, c. 35.

Motion was made in arrest of judgment because the indictment did not properly negative the proviso in the law. The proviso in the law is as follows: "Provided, however, that the provisions of this section shall not be construed to prevent any lawfully authorized practitioner of medicine from prescribing in good faith for the use of any habitual user of narcotic drugs such substance as he may deem necessary for the treatment of such habit." Under the allegation in the indictment relating to the proviso, it is as follows: "And the said Dr. C. C. Blair then and there well knew the said Jessie Brittain to be such an habitual user of said drug, and did not then and there prescribe the same in good faith for the use of the said habitual user," etc. It will be observed that that part of the statute in connection with the proviso, to wit, "such substance as he may deem necessary for the treatment of such habit," is left out of the indictment. We believe that the same is an essential part of the proviso, and should have been included in the indictment. The testimony in this case illustrates this. There

is evidence to the effect that the physician prescribing the drug to an habitual user, and that he did so in good faith to relieve her from pain. However, the facts leave it in controversy as to whether the prescription was for the treatment of the habit; that is, as we understand it, for curing the habit. The proof really responds to the allegation in the indictment, but it does not go as far as the statute requires. The state requires, before a physician can be relieved, he must prescribe the drug for treatment of the habit; that is, for the purpose of curing it. Doubtless he did give it, in good faith, to relieve pain, and that is responsive to the allegation in the indictment. We hold that the indictment was defective in this respect. Blair v. State (Tex. Cr. App.) 96 S. W. 23. The judgment is reversed, and the prosecution ordered dismissed.

HENDERSON, J. Appellant was convicted under an indictment charging that appellant did then and there unlawfully play and bet at a game called "craps," played with dice, and not at a private residence.

The proof shows, without controversy, that the game was played within 10 feet of the front door of a private residence. The judge in his charge disregarded the question of a game at a private residence, and refused the special requested instructions on that subject. In our opinion, the judge should have given a peremptory instruction to acquit appellant. The Legislature has exempted private residences from the gaming laws, so far as playing and betting at craps played with dice is concerned. Why, we are at a loss to understand. Still, they have done so, and until they make it an offense to play or bet at craps at a private residence, or eliminate private residence from the gaming statute on this subject, it cannot be an offense, as all of our crimes are statutory. Irvin Thompson v. State (decided October 17, 1906) 96 S. W. 1085. Faucett v. State, 46 Tex. Cr. R.

113, 79 S. W. 548; Waggoner v. State (Tex. Cr. App.) 92 S. W. 38. The statute on this subject permits games of craps played with dice, when such game is played "at a private residence," and does not say “in a private residence." "At a private residence" has been construed to mean "near by, in proximity to." Hipp v. State (Tex. Cr. App.) 75 S. W. 28, 62 L. R. A. 973; Borders v. State, 24 Tex. App. 333, 6 S. W. 532.

We do not deem it necessary to discuss other questions raised.

For the error discussed, the judgment is reversed, and the cause remanded.

2. SAME

EVIDENCE ADMISSIBILITY. After an altercation at a party between some guests and the host and his assistant, the guests left the house. The host and his assistant, having been informed that the guests had gone out to cut up some harness and buggies, followed them. Held that, in a prosecution of the host's assistant for an assault on the guests, occurring in the yard, defendant should have been permitted to testify that he went into the yard for the purpose of protecting the property of himself and others.

[Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Assault and Battery, § 41.] 3. SAME-INSTRUCTIONS.

Where, in a prosecution for assault, the evidence is conflicting as to whether defendant, who received the first blow, provoked the attack, and as to whether he used unnecessary force in resisting the attack, though it was unprovoked, defendant is entitled to instructions presenting such issues to the jury as determinative of his guilt.

Appeal from Hopkins County Court; T. J. Russell, Judge.

Bob Money was convicted of aggravated assault, and appeals. Reversed and remanded.

D. Thornton, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $25; hence this appeal.

The evidence for the state shows that the alleged assault occurred at a candy party at Bird's. Prosecutor, with his two companions, Bullard and Knott, went to the party; and appellant was assisting Bird in superintending the party, keeping order, etc. In drawing the candy, it seems they had a rule that a person paying for a drawing would draw a slip of paper, and would then be entitled to the number of sticks of candy on the paper

The

drawn by such person. Prosecutor and his companions would not be governed by the rules, and some of them took more candy than they were entitled to, and an altercation arose over this. This appears to have been quieted, and Petty and his two companions left the house, for the purpose, as they testify, of getting their horses and going home. Appellant proved in this connection that, after they went out, he and Bird were informed that the parties, Petty and his companions, were going to cut up some of the buggies and harness hitched in front of the house, and they followed out to prevent this. The testimony then shows that Petty accosted Bird, and asked him if he had done anything wrong; if so, he would apologize. state's testimony shows that at this juncture appellant said they had, and that he considered that they had acted the damn scoundrel. Petty then struck appellant in the face with his fist, and a fight ensued, in which, according to the state's testimony, appellant jumped on Petty, striking and cutting him with a knife. Appellant and his witnesses testified that Petty and his companions jumped on him, and all three of them were fighting him and had him down, and one of them struck him in the head with the handle of a knife, and he then got out his knife and cut Petty and Bullard. Appellant contends that the court should not have charged, as he did, that the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with the intent to alarm another, and under circumstances calculated to effect that object, was an assault. We are inclined to agree with appellant as to this contention; but, if this were the only error, we would not feel inclined to reverse.

Appellant complains because the court refused to permit him to prove, by the witness Calvin Bevis, his actual character as being a peaceable, quiet, and law-abiding citizen. The bill shows that this witness, on account of the limited acquaintance of appellant in that community, had not formed a reputation in the respect inquired about, but that he knew him, and, from what he knew of him personally, he was a man of peaceable and quiet character. We know of no case which goes to this extent, but confines this character to general repute in the community. However, the writer can see no reason why this character of proof cannot be resorted to by a defendant, especially where, as in this case, he is not able to offer proof of general reputation.

Appellant also objects to the court's charge on mutual combat, contending there was nothing in the evidence authorizing such charge. We are inclined to agree to this contention. Appellant is either guilty for having provoked the difficulty, or he is not guilty at all; for there is no controversy as to the fact that Petty (prosecutor) struck the first blow. If appellant, at the time of the

difficulty, called Petty a "damn scoundrel" in order to provoke Petty to strike him, he might be guilty of an assault, because of this provocation; or if, during the progress of the difficulty, he used more force than was necessary to defend himself, and used a knife when it was not necessary, then he might be guilty as having used excessive force. It occurs to us, if the court had presented the issue as above indicated, the jury would have had an intelligent criterion in order to determine the guilt of appellant of the offense charged. We believe that, as given, the charge on mutual combat was misleading.

It is further insisted that the court was in error in not permitting appellant, when he was a witness, to testify as to his intent in going out of the house to where the parties were just prior to the difficulty. He would have stated that his purpose in going out there was simply to protect the buggies and harness of persons attending the party, and, among others, his own, from being cut or injured by Petty and those with him. While he stated the facts, yet we believe it is always permissible for a defendant to state his intent in doing some act which might otherwise appear as inculpatory against him.

As stated before, appellant can only be guilty on one of two propositions; that is, that he provoked the difficulty and caused Petty to strike him for the purpose of engaging in a fight with him, or, if he did not provoke the difficulty, if he and Petty had an altercation, and Petty struck him first, and appellant then used more force than was necessary for his own protection from his standpoint, he would be guilty. It occurs to us that upon both of these issues the state's evidence is weak. At any rate, appellant had a right to have these issues fairly presented to the jury, in order that they might properly weigh the testimony against him.

For the errors discussed, the judgment is reversed, and the cause remanded.

BROWN v. STATE. (Court of Criminal Appeals of Texas. Oct. 24, 1906.)

CRIMINAL LAW - APPEALS - RECORD-REQUISITES-STATEMENT OF FACT.

Where the record on the appeal of a criminal case contains neither statement of facts, bill of exceptions, nor motion for new trial, no error is presented thereby, and the judgment will be affirmed.

Appeal from District Court, Shelby County; Jas. I. Perkins, Judge.

Lee Brown was convicted of violating the local option law, and he appeals. Affirmed. J. E. Yantis, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $100.

The record contains neither statement of facts, bill of exceptions, nor motion for new trial. No error is presented by this record, and the judgment is affirmed.

absence of the statement of facts, no error is suggested by appellant that authorizes the reversal of the judgment.

The judgment is affirmed.

WRIGHT v. STATE.

STOVALL v. STATE.

1906.)

HERNANDEZ v. STATE.

(Court of Criminal Appeals of Texas. Oct. 24, 1906.)

CRIMINAL LAW-APPEAL AND ERROR-STATEMENT OF FACTS-TIME OF FILING.

A statement of fact, filed in a criminal case after the adjournment of the term without an order authorizing such procedure, cannot be considered on appeal.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2876-2880.]

Appeal from District Court, Cameron County; Stanley Welch, Judge.

Antonio Hernandez was convicted of an assault with intent to rape, and he appeals. Affirmed.

Creager Hudson, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of an assault with intent to commit rape, and his punishment fixed at two years' confinement in the penitentiary.

There is no order authorizing the filing of the statement of facts after the adjournment of the term. The statement of facts was filed after the adjournment of the term. In this condition of the record, the statement of facts cannot be considered. In the

-

RECORD

1908.) 1. CRIMINAL LAW APPEAL BILLS OF EXCEPTION-SUFFICIENCY. In a prosecution for violation of the local option law, a bill of exceptions to the introduction of testimony as to express consignments to the defendant merely showed that the agent knew nothing as to the contents of such consignment, without excluding the idea that the packages may have been shown by other testimony to contain liquor. The statement of facts and other bills of exception showed to a reasonable certainty that the packages contained whisky. Held insufficient to present the objection to the evidence that the contents of the consignment were not shown to have been alcoholic beverages.

2. SAME.

In a local option case, a bill of exceptions to the introduction of evidence of a sale to another than the prosecutor showed a sale to prosecutor at the time of such other sale, without showing that the two sales were not intimately blended. The bill also showed a peculiar method of payment for the whisky, which the record disclosed was used in the alleged sale to the prosecutor. Held insufficient to show that the evidence of the other sale was not admissible as a part of the res gestæ, or as a part of a system of making sales.

3. SAME.

In local option case, a bill of exceptions to the introduction of evidence of numerous express consignments to defendant was based on the ground that they were not shown to have contained liquor. Another bill showed that on a certain date defendant came out of the express office with a package containing whisky, part of which was sold to witness. Held to show with reasonable certainty that the express consignments referred to in the first bill contained whisky, thus tending to vitiate such bill. 4. INTOXICATING LIQUORS-ILLEGAL SALES

INSTRUCTIONS-EVIDENCE-SUFFICIENCY.

In a local option case, the testimony showed that a sale to the prosecutor, and also a sale to another, was effected by the purchaser picking up a bottle of whisky belonging to defendant, turning his back and holding out $1, which was taken by defendant. Held sufficient to justify an instruction permitting the jury to consider the other sale in determining the system, if any, under which defendant was acting. 5. SAME.

Where, in a local option case charging a certain sale of liquor, the evidence tends to show a system used by defendant in such sales, the prior acquittal of the charge of another sale will not estop the use of such other sale as evidence.

[Ed. Note.-For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, $$ 287, 293; vol. 14, Cent. Dig. Criminal Law, §§ 833, 834.]

Appeal from Kaufman County Court; H M. Cosnahan, Judge.

Will Stovall was convicted of violating the local option law, and appeals. Affirmed. Q. S. Barrett, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of violating the local option law, and his