kindness, the state was properly permitted to show that deceased had no ill will toward defendant, and that the alleged acts of hostility never occurred.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. § 396.*] 5. HOMICIDE (§ 309*) -"Manslaughter" ADEQUATE CAUSE.

Where in a prosecution for homicide there was no evidence suggesting adequate cause, manslaughter was not in the case.

John Lamb was convicted of murder, and he appeals. Affirmed.

Mays & Mays and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for

the State.

PRENDERGAST, P. J. Appellant was convicted of murder and his punishment assess

6. HOMICIDE (§ 295*)-PROVOKING DIFFICULTY-EVIDENCE.

In a prosecution for homicide, evidence held to justify an instruction on provoking difficulty

by defendant to kill deceased.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.*]

On Motion for Rehearing.

7. CRIMINAL LAW (§ 866*)-TRIAL-QUOTIENT VERDICT. In a prosecution for homicide, evidence held to require a finding that the jury, though having arrived at the term of punishment by the quotient method, had not agreed to be bound thereby, and hence that the verdict was not void for that reason.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2063; Dec. Dig. § 866.*] 8. HOMICIDE (§ 43*)-"MANSLAUGHTER"-ELE

MENTS.

"Manslaughter" necessarily involves adequate cause and existing passion, and if they do not coexist such offense is not shown.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 67; Dec. Dig. § 43.*

For other definitions, see Words and Phrases, First and Second Series, Manslaughter.] 9. HOMICIDE (§ 43*)-MANSLAUGHTER-INFLUENCE OF SUDDEN PASSION."

"Influence of sudden passion" means that the provocation must arise at the time of the commission of the offense, that the passion is not the result of a former provocation, and that the act must be directly caused by the passion arising out of the provocation.

[Ed. Note.--For other cases, see Homicide, Cent. Dig. § 67; Dec. Dig. § 43.*

For other definitions, see Words and Phrases, Second Series, Immediate Influence.] 10. HOMICIDE (§ 43*)-MANSLAUGHTER-"ADE QUATE CAUSE."

By "adequate cause" is meant such as would commonly produce a degree of such passion or emotion in a person of ordinary temper as would be sufficient to render the mind incapable of cool reflection.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 67; Dec. Dig. § 43.*

For other definitions, see Words and Phrases, First and Second Series, Adequate Cause.] 11. HOMICIDE (§ 250*)-DEGREE OF OFFENSE -MANSLAUGHTER-ADEQUATE CAUSE.

In a prosecution for homicide, evidence held to show that deceased did nothing at the time of the killing except to try to protect himself from his assailant, and was therefore insufficient to produce adequate cause so as to reduce the killing to manslaughter.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.*]

Appeal from District Court, Tarrant County; James W. Swayne, Judge.

companion case of the same appellant, recently decided. 168 S. W. 534.

Appellant complains that a new trial should have been granted because, in effect, the jury arrived at its verdict by lot; that is, a quotient verdict. The court heard evidence on this issue which is shown by one of appellant's bills. Mr. Branch, in his Criminal Law (section 844, subd. 2) says:

"If jurors take the average as a means of securing an expression as to their views in respect to the punishment (making an experibe bound by the result, or if agreement is broment), and with no agreement in advance to ken, the court's finding of no error will not be disturbed on appeal. Leverett, 3 Tex. App. 217; Cravens, 55 Tex. Cr. R. 521, 117 S. W. 156 [16 Ann. Cas. 907]; Goodman, 49 Tex. Cr. R. 191, 91 S. W. 795; Keith, 56 S. W. 629; Pruitt, 30 Tex. App. 159, 16 S. W. 773; Barton, 34 Tex. Cr. R. 613, 31 S. W. 671; Hill, 43 Tex. Cr. R. 586, 67 S. W. 506."

The trial judge was justified in holding, as he did, that the verdict in this case was not an illegal one under this line of authorities.

[1] Appellant has several bills of exceptions to the admission of certain testimony. We will give it first on this subject in full. Omitting the number, style of the case, and the court below, it is:

"Be it remembered that upon the trial of the above styled and numbered cause Mrs. John Guest, widow of deceased, was called to the stand by the state and was asked if, prior to the time that defendant killed John Guest, during her husband's entire lifetime, she ever heard him make any threat of any kind or of any character whatever against John Lamb, and answered that she did not. To this the defend

ant objected as an attempt to prove the character of the deceased; because it relates to a purported statement by deceased long prior to rely upon any threats as a provocation for the the killing, and because defendant does not killing. The court overruled the objection, and defendant then and there excepted, and now tenders this his bill of exception and asks that same be approved, ordered filed, and made a part of the record herein; which is accordingly done.

"Approved Apr. 1st A. D. 1914.

"Jas. W. Swayne, Judge 17th District Court, "Tarrant County, Texas.'

Clearly, under the rules established by the Supreme Court when it had criminal jurisdiction and by this court upon its organization, in accordance with the statute, this bill is so meager and insufficient as to neither require nor authorize this court to consider the question sought to be raised. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 326, 140 S. W. 1112;

verdict of 30 years was because I had agreed to abide by the result when we divided by 12." The other juror whom he quoted in his original motion was Huffman, whom he says

swore:

"It was agreed, before we balloted on that, that each put down what he thought defendant ought to receive and divide by 12 and knock off the odd years either for or against and that would be our verdict and that would be the verdict of the jury."

In his supplemental motion, in addition he quotes what he says the Juror Ritchie swore: "It was already agreed before we divided by 12 that we would abide by the result whatever that might be, plus or less the odd years as the case might be; if it came to 32 years and 6 months, we agreed to give him the benefit of the months. I do not mind stating that voted for 25 years the first and the last time. The reason that I came back to 30 years was, I had agreed to abide by the result after we divided by 12. * * * If it had been 50, I would agree to it after dividing by 12 because I had already agreed to do so.'

The statement of facts in his bill of exceptions on this subject is 25 typewritten pages Of course, he did not undertake to copy all either of these jurors swore, nor any that the others swore. Before deciding this question in the original opinion we

read and studied the whole of this evidence carefully. We have again done so. The testimony of the seven jurors is more or less contradictory. The testimony of each of them is somewhat contradictory. In other words, some of the jurors contradict themselves in their own testimony. This state ment of facts in the bill does not show what was drawn out by direct, nor what by cross, examination. It is evident, however, from reading it that part was drawn out on direct and part on cross examination. The trial judge heard all this and the testimony of each of the seven jurors, saw their manner of testifying, the questions that were put to them on direct and cross examination, and the whole thing, and he was much more competent to arrive at the truth of the matter than this court can be from the statement of facts. He also doubtless knew each of these jurors personally and could determine the weight to be given to his testimony and his credibility. This court cannot do that. There could be called perhaps enough of the testimony of these jurors, if taken alone and believed by the judge, in favor of appellant, to have justified him in holding that the verdict was reached by lot. On the contrary, there is ample evidence and a preponderance of it which clearly justified him to hold, as he did, that the verdict was not reached by lot. Upon the whole, it was a question of fact to be decided by the trial judge from all the testimony-not two or three of the jurors, but all seven of them. In order to show that each of the three jurors, whom appellant has quoted in his motions, contradicted themselves, we here copy extracts from the testimony of each. W. R. Mays further testified:

"After we all agreed 'guilty,' then we had several ballots and they ranged from 5 to 99 years, something like that. After we had taken several ballots and could not get together, we had some sort of conversation in there, and after that conversation each man put down a number of years on a piece of paper and that was divided by 12. We put down our numbers of years and divided by 12 for the purpose of arriving at a verdict. After we put it down and divided it by 12 we reached some 30-odd years; that received the approval of the juWe had agreed not to bring in any odd years, that is, unless it suited them. After we divided it up we put it to 30 years, and then we all agreed to be bound by the 30 years."

rors.

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Said Juror Huffman from whom appellant quoted, as shown above, further testified: "The way we reached the final verdict, we saw that we differed all the way from 5 to 99 years, so we all wanted to make some agreement on it, and it showed all of them were honest that they did want to come to an agreement, so the foreman, Mr. Cartwright, proposed that we all vote our sentiments and then that would give us an average. we would add it all up and divide by 12 and

He then further says that the result of the division was 32 years and 6 months, and they agreed to knock the odd years off and make it 30 years even, and that they all then agreed to 30 years. He further swore:

"If that had not satisfied me 1 was not legally nor morally bound to abide by the verdict; nobody agreed to be bound by it, only that if it figured out anywhere in the bounds of reason; the idea was that if it figured out so as to suit the jury then they would agree on it, and if any man had said, 'I won't agree to that verdict,' I would not have told him that he had promised to do so. his own honest conviction. his privilege to have said, much,' or, "That is too little.'

Further he said:

It would have been It would have been 'Well, that is too

*

After we

"We were just getting the average to see if that was satisfactory. After we knocked off the two years and came down to 30, then the question was, 'Is this satisfactory to all the jurors?' and they all said, 'Yes.' And then we all taken a rising vote and then we signed the verdict. In dividing by 12 we were trying to get at about an average, and we did make the proposition that there would be no odd years, that is, we would give nearest to the 5, and they all agreed to do that. 串 knocked off the odd years, I was not bound by had wanted to agree to it: we were just trythat verdict either morally or legally unless 1 ing to arrive at a conclusion to see if we could possibly get together. * In accordance with our previous discussion of the manner in feel that whenever we balloted that way and which we would reach our verdict, I did not divided by 12 that I ought to be bound by the result in accordance with our previous conversation about that, nothing more than just to try to come to a conclusion, to see how we all stood. * I had not made any positive agreement if that had not suited me; we voted afterwards."

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The other juror he quoted from was Mr. Ritchie. In addition to what he quoted, Ritchie further testified: That after they had made the division and it amounted to 32 years and some months, the Juror Helmcamp made a motion to fix the term at 30 years, and that motion was put and carried, every man voting for it. Then the

"When the motion was made, when we all agreed on that, why, he said that all in favor of it to stand up, and we all rose, and if there was any one to say anything against it, either for or against it, they had a right to say that they was in favor of it, if they was not, stand up. I did not have any agreement that I was going to be bound by that result, not a bit at all, was not bound at all, and no one was bound. They had a perfect right to do either way they liked. There was no motion at all that we would be bound by anything. * * * Neither I nor anybody else was bound by the average; each man had a right to object to it if he wanted to. When we divided by 12, that was done in order to get the average of the 12 men, to see how we all stood jointly. Under the conversation and agreement we all had I had a right to object to that 30 years. You ask me if I was morally, legally, or any other way bound, under my view, to abide by the agreement or average that we reached unless I wanted to, and I answer: Not unless 1 wanted to. You ask me: What was the general understanding when they divided by 12 and got the average as to whether or not any man had the right to object or not agree to it if he did not want to? And I answer: He had a right to kick out if he wanted to kick out, to my understanding; that was my understanding. When it averaged up 30 years 1 decided, that being about the average, that I would go up 5 years in order to arrive at a verdict. The way I understood, I still had the right to say 'No, gentlemen, I won't go by my 25 years.' That is the way I understood, had the right to do that if I wanted to. But in order to arrive at a verdict I finally agreed to the 30 years. It was my understanding that when they called for the rising vote to see whether or not 30 years suited every man on the jury, I could have kept my seat and no man had a right to object; I could have done that conscientiously."

and we all agreed to it."

Mr. Burns testified:

"We finally agreed to vote our own sentiments, what we thought the defendant ought to have; that is to say, that each man would set down what he thought the defendant ought to * * * And then we would divide that have. by 12. * Before we added this up, I really do not know that it was agreed by and between the jurors for us to abide by the result I do of the quotient as the verdict. not think that we agreed beforehand that that would be the manner in which we would ascertain the verdict, but it was after that that * * *I do not remember was added up. that we agreed that inasmuch as we were so far divided we would do that and would all abide by the result of it. I do not know. If it had not I would not say for certain. satisfied me I would not have abided by it. I do not know of any agreement to abide by the result of adding it up and dividing by 12, only until after it was added up."

The result of this addition and division was 32 years and some months. This Juror Burns further said:

"Then we all agreed to give him 30 years; that was the verdict of the jury. If the 32 years and 6 months or any other amount had not satisfied me, I would not have been bound by it, and I made no such agreement."

Mr. J. C. Cartwright, the foreman of the jury, testified to substantially the same as Mr. Helmcamp. Among other things, in speaking of the agreement and result of the division, he said:

"Whatever it figured out, and if it did not suit a juryman he had the right to kick. You ask me: But was the agreement before you voted on it that the man should have a right to so agree beforehand that that should be your verdict when you did that? And I anAgreed beforehand that he should have

a right if this did not suit his-was not his ideas or his views of the matter, he could say so and it was not a verdict at all. You ask me if that was before we divided by 12, and I answer: Yes, we had an agreement that after we divided it by 12, if it was not satisfactory with any juryman or juror, he had a right to kick and say so, and we would take other steps then and see what we could do. It was not to become a verdict at all unless it was agreeable with every juryman, was my understanding. I made the proposition, and others did, too; I made the proposition, and others co-operated with me, trying to get at about the average mind of the jury. That was it; we tried to get on an average; that is the way we tried it. I did not myself feel morally or legally bound after we divided it by 12 if it had not suited me."

The other juror who testified was Lee Gibbons. He swore:

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