Appellant was convicted of an assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term оf two years; hence this appeal.
Appellant objected to the admission of the evidence of Gus Jout, a witness for thе State. He testified that he saw the shooting of Stephens by defendant; that defendant did not seem to be in the least excited; and that he seemed to be cool and collected. No ground is stated for the objection. This should have been done. However, it is permissible for a witness to state the appearance of the defendant at the time of the difficulty, as to whether he was angry, or appeared to be so, as to whether he was cool or excited. In a certain sense this may be a matter of opinion, but under the authorities it is held to be admissible in the nature of a “short hand rendering of the facts.” There was no error in the аdmission of this testimony.
Appellant also excepted to the argument of the county attorney, with reference to appellant’s sister at the time of the assault throwing rocks at the horses of the prosecutor, who was driving a milk wagon. While the county attorney was making this argument, the defendant’s attorney insisted there was no such evidence, and when the stenographer’s notes showed to the contrary he asked that the same be excluded. The court did not exclude the testimony. Appellant excepted, without assigning any reason for the same. If there was testimony in the case to the effect that appellant’s sister at the time of thе difficulty threw *517 rocks at prosecutor’s horse, it was a part of the res gestas, and we think admissible.
It appears from the recоrd that the shooting of prosecutor by appellant was clearly established. Appellant’s defense was that on the day before the prosecutor assaulted. his sister and made indecent propositions to her. When he came home that evening, she told him about it, and on the next day he hired a gun, came back to the house, took his sister with him (evidently to find and point out prosecutor) and when they came up with him on the streets of Forth Worth, she pointed prosecutor out, told appellant he had assаulted her, and appellant immediately shot him, inflicting a wound on his arm with some eighteen number two shot. Appellant insists that this evidence, undеr a proper charge, should have reduced his offense to an aggravated assault; that the court failed to give a рroper charge, in that it required the jury to believe that he shot prosecutor in a sudden transport of passion. We will quote so much of the court’s charge as is necessary on this point: “By the expression ‘adequate cause’ is meant such as would cоmmonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to rendеr the mind incapable of cool reflection; and the condition of the mind at the time of the homicide is a question to be dеtermined by the jury from all the facts and circumstances in evidence; and when a sudden transport of passion is once engendеred in a mind, the law does not prescribe any specific length of time for the mind to become cool and deliberate, if it does so change, but leaves that as a question of fact to be determined by the jury from the evidence. Insulting words or conduct of the person killed towards a female relative of the party guilty of the homicide is such adequate cause, provided the hоmicide occurs upon the first meeting of the person committing the homicide with the person slain.” However, the court in • submitting the issue tо the jury charged substantially: “That if the jury believe that defendant committed an assault upon Stevens with the specific intent to kill him, but you further bеlieve that said assault was committed under the immediate influence of sudden passion, arising from having been told that said Stevens had used insulting words or had been guilty of insulting conduct towards defendant’s sister, then you will acquit defendant of assault with intent to murder and convict him. of an аggravated assault; and this, though you should believe that said Stevens had not used insulting words or been guilty of insulting conduct towards defendant’s sister.” The сontention here being that the use of the words “under the immediate influence of sudden passion, arising,” etc., was in effect limiting appellant’s defense and was calculated to make the jury believe that the passion must be sudden and arise at the time when aрpellant met the prosecutor. But it does not occur to us that in view of the previous charge on this subject, the jury were cоnfused or misled. They were distinctly told that while the condition of the mind of appellant at the time of the homicide must be considerеd, and it would be pre *518 stoned that his mind had become excited or aroused by having been previously told of the insult to his sister, that the law did nоt prescribe any specific length of time for it to become cool, but the jury should determine this as a matter of fact from the evidence. They were further told that the insult was adequate cause if the shooting occurred on the first meeting after appellant had learned of the samé. Appellant says,* in this connection, that the charge requested by him should have been given. An exаmination of that charge shows that if the charge as given by the court contained the vice with reference to sudden passion, the charge requested contained the same vice, as we find it contains this language: “If you find that at the time of the shooting the dеfendant’s mind was incapable of cool reflection, and that he was laboring under a sudden passion arising from an-adequate cause,” etc.
Appellant claims that' the evidence is not sufficient to sustain the verdict; that thete can be no question that the shooting occurred because of the insult to appellant’s sister. We entertain no doubt of this fact, but the law requires that thе jury should not only believe this fact was the actuating cause, but that appellant’s mind at the time was excited and incapable of cool reflection. This issue was submitted to the jury, and doubtless they believed there was sufficient testimony to authorize them to say that appellant’s mind was cool and calm. Evidently they found on this last mentioned issue in favor of the State, and accordingly found appellant guilty of an assault with intent to murder, instead of an aggravated assault.
The evidence being sufficient, and there being no error in the record, the judgment is affirmed.
Affirmed.