Volume 1 — Texas Court of Appeals Reports

<p>Appeal from the District Court of Milam. Tried below before the Hon. A. S. Broaddus.</p>

<p>1. Malicious Mischief.—Article 714 of the Penal (Jode (Pase. Dig., Art. 2345) was enacted to prevent cruelty to certain animals, whether by the-owner or another person.</p> <p>2. Indictment—Ownership.—It is not necessary to allege the ownership of" the animal, nor to negative the idea that it is the property of the accused. The State v. Smith, 21 Texas, 748, overruled; The State v. Broeker, 32 Texas, 611, approved.</p> <p>3. Indictment—Description of Animal.—It is sufficient to describe the animal as “a certain horse, a dumb animal under the statute.” It is not necessary to allege the color of the animal; but, if alleged, it cannot be treated as surplusage, and must be proved as laid.</p>

<p>1. Charge of the Court—Reasonable Doubt.—Accused asked the court to instruct the jury that, “if the evidence of an alibi has introduced into the minds of the jury a doubt whether or not the accused was at or about the place when the alleged robbery is said to have been committed, you will acquit him.” Held, that the instruction was properly refused. The doubt justifying an acquittal must be a reasonable doubt, and the court below sufficiently charged the jury on the point.</p> <p>-2. Charge of the Court.—In all felony causes it is the duty of the district judges tó deliver written charges to the jury. In such charges the law applicable to the facts in proof should be set forth, but the evidence must not be summed up. Brevity is commended, to avoid the error of charging on the weight of evidence, or of confusing the minds of jurors.</p> <p>r,8. New Trlal—Newly-discovered Evidence.—Motions for new trial, based on evidence newly discovered, but tending to impeach the testimony of a witness sworn on the trial, are not favored by the courts. The general rule against allowance of such motions, though subject to exceptions, applies with equal stringency to criminal as to civil causes.</p>

<p>1. Evidence—Collateral Pacts.—The fundamental rule that evidence must correspond with allegations, and be confined to the issue, excludes proof of collateral facts which afford no reasonable presumption or inference pertinent to the issue joined. To this rule, however, there is an apparent exception when knowledge or intent is a material inquiry.</p> <p>2. Same.—On a trial for willful burning, a witness was allowed, over objection by the accused, to prove that accused had previously been incarcerated as a pickpocket. Held, error; such proof was not only incompetent under the foregoing rule of evidence, but was calculated to deprive the accused of a fair trial of the case at bar.</p> <p>3. Charge of the Court—Argumentative Charge.—Article 595 of the Code of Criminal Procedure (Pase. Dig., Art. 3060) does not prohibit argumentative charges to juries, but only such argument as is calculated to arouse the sympathy or excite the passion of the jury.</p> <p>á. Same—Alternative Penalties.—On trials of offenses to which, alternative penalties are attached, it is the duty of the district judge, whether asked or not, to give such alternative penalties in charge to the jury; and an omission to do so is error.</p>

<p>1. Transcript—Omissions, how Supplied.—The writ of certiorari or con> sent of parties litigant are the only modes by which any omissions from transcripts can be supplied.</p> <p>2. Statutes op same Session—Repugnancy.—Of two acts enacted at the same session of the legislature, and relating to the same subject-matter, but repugnant to each other, the later act must prevail.</p> <p>-3. Gaming.—Betting is not of itself an offense against the Penal Code of this state. It is the betting at those games, tables, or hanks which are prohibited by law which constitutes an indictable offense.</p> <p>■4. Same—Ten-pin Alleys.—Since the passage of the act of June 3, 1873, whereby a license tax was imposed on nine and ten-pin alleys, the betting upon the ordinary games played thereon has not been an offense known to the laws of this state, notwithstanding the prohibition of such alleys by a prior act of the same session.</p> <p>-5. Legislative Intent.—It is not to be supposed that the legislature intended to punish criminally any of the sources from which the revenues are derived.</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. George H. Noonan.</p> <p>The opinion sufficiently states the case.</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. George H. Noonan.</p> <p>The case is fully stated in the opinion of the court.</p>

Tried below before the Hon. James A. Ware. In view of the rulings of the court, the facts of the case-are sufficiently stated in its opinion.

Tried below before the Hon. James A. Ware. About the 2d of April, 1875, the appellant hired from one W. B. Newton, a livery-stable keeper in Seguin, a horse, saddle, and bridle, for the alleged purpose of going to Lees-burg, and it was understood between the parties that appellant was to return the next day.

<p>Practice on Appeal.—This court will adhere to the unvarying practice of the supreme court in refusing to disturb verdicts when there was sufficient evidence to support them. Only in cases where the verdict appears to be wrong, oppressive, or unjust will it be disturbed for want of evidence to support it.</p>

<p>1. Threats to Commit Offenses.—A correct definition of the offense of threatening to take the life of a human being, or to inflict serious bodily injury, requires that the 1st and 2d sections of the act of October 18, 1871, amendatory of the Penal Code, be considered in connection with each other. Pase. Dig., Arts. 6585, 6586. Indictments based on that act, therefore, must not only charge the making of the threat, but also that it was seriously made.</p> <p>2. Same—Indictment.—In this case the indictment charged that the accused “ did willfully, unlawfully, intentionally, and feloniously seriously threaten to kill and murder one S., which said threat was then and there seriously made.” He Id, that the indictment sufficiently charges the offense.</p> <p>8. Same—Recobnizance.—But in the recognizance for an appeal, framed under the act of April 27, 1871 (Pase. Dig., Art. 6599), the offense is denominated to be “ threats to kill and murder.” Held, defective, because of the omission of one of the elements of the offense, to wit, that the threats were seriously made.</p>

Appeals from the District Court of Travis. Tried below ‘before the Hon. J. P. Richardson. Two causes were disposed of by the following opinion, which sufficiently indicates such facts as are material.

<p>Appeal from the District Court of Kinney. Tried below before the Hon. James A. Ware.</p>

<p>1 Theft.—The felonious intent, which is an essential to the crime of theft, must exist at the time of the taking; no subsequent felonious intent will-render the previous taking theft.</p> <p>2. Same—Consent of Owner, if obtained by means of a false pretext, is no-defense to the charge of theft, if the intention of the accused, at the time of the taking, was to divest the owner of his property.</p> <p>3. Same—Evidence.—See the opinion of the court for a review of evidence which is held to be sufficient to prove a felonious intent in the hirer of a. horse.</p>

<p>Appeal from the District Court of Live Oak. Tried below before the Hon. D. D. Claiborne.</p>

<p>Appeal from, the District Court of Bell. Tried below before the Hon. X. B. Saunders.</p> <p>The facts appear in the opinion.</p>

<p>Venue—Evidence.—See the opinion for evidence held insufficient to prove-the venue of the offense.</p>

<p>Appeal from the District Court of Milam. Tried below before the Hon A. S. Broadbus.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p>

<p>Appeal from the Criminal District Court of Dallas City.</p> <p>Tried below before the Hon. S. Hare.</p> <p>There is no occasion for a statement of tihe facts.</p>

<p>Appeal from Lamar. Tried below before the Hon. James Q. Chenowith.</p>

<p>Appeal from the District Court of Shackleford. Tried below before the Hon. J. P. Osterhout.</p>

<p>Appeal from the District Court of Travis. Tried below before the Hon. J. P. Richardson.</p>

<p>Appeal from the District Court of Williamson. Tried below before the Hon. E. B. Turner.</p> <p>The facts are disclosed in the opinion of the court.</p>

<p>1. Theft—Indictment.—An indictment for theft described the stolen property as “two work-oxen, the property of one T. A. J.” Held, that the description is sufficiently certain. \</p> <p>2. Same—Ekatjdulent Taking.—A fraudulent taking of the property of another implies that the taker knew it was not his own, and that it was taken to deprive the owner of its value.</p> <p>3. Same—Evidence.—When property alleged to have been stolen was taken by the accused under a claim of right, evidence against him of a fraudulent taking may be rebutted by proof of his good faith in appropriating it as his own; and, if the entire evidence leaves a reasonable doubt of the ■ fraudulent intent, the jury should acquit.</p> <p>4. Same—Charge or the Court.—In prosecutions for theft, if the accused adduces evidence tending to prove that he took the property in good faith, under a claim of right, it is error to omit and refuse to instruct the jury to consider such evidence in determining their verdict.</p>

<p>Appeal from the District Court of Williamson. Tried below before the Hon. E. B. Turner.</p>

<p>Appeal from the District Court of Navarro. Tried below before the Hon. F. P. Wood.</p>

<p>Appeal from the District Court of Limestone. Tried below before the Hon. D. M. Prendergast.</p> <p>There appears to be no occasion to detail other facts than those stated in the opinion of the court.</p>

<p>Appeal from the District Court of El Paso. Tried below before the Hon. Charles H. Howard.</p> <p>The indictment was for an assault with intent to murder-</p>

<p>1. Assault with Intent to Murder.—Accused was convicted of an assault with intent to murder, on an indictment which, in substance, charged that he (and three others) assaulted one K. and one L. with a bowie knife, being a deadly weapon, and therewith cut K. upon his head and face, and threw L. upon the floor, with the felonious intent then and there to kill and murder the said BZ. and L. Accused moved in arrest of judgment on the ground that the indictment charged two distinct offenses, to wit, an assault with intent to murder BZ., and an aggravated assault on L. Held, that the motion was properly overruled by the court below. The allegations of the violence and injuries inflicted were surplusage; but they do not vitiate the remaining averments, which positively and sufficiently charge an assault with intent to murder.</p> <p>2. Same—Evidence.—One of the assaulted parties, having testified for the state, was asked by the accused if accused “had not repeatedly said he did not intend to kill” the assaulted parties. Held, that the question was properly overruled. If intended as part of the res gestee, it should have been limited to the time of the commission of the offense; and, if not intended as res gestee, it was not a competent question for any purpose.</p>

<p>Appeal from the District Court of Milam. Tried below before the Hon. A. S. Broaddus.</p> <p>The material facts are indicated in the opinion of the court and the head-notes.</p>

<p>Appeal from the Criminal Court of the city of Paris. Tried below before the Hon. James Q. Chenowith.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>1. Indictment—Certainty Required.—The certainty required in indictments is such as to enable the accused to plead the judgment given upon it in bar of any subsequent prosecution for the same offense. The offense must be stated in plain and intelligible words, but it is not necessary to state anything that it is not necessary to prove.</p> <p>2. Indictment—Intent.—When a particular intent is a material fact in the description of an offense it must be stated in the indictment; but where the intent is to defraud it is not necessary to name the person intended to be defrauded.</p> <p>3. Evidence.—One of the defenses in this case was that, at the time of the commission of the offense charged, the defendant’s mind was so beclouded by the excessive use of intoxicating liquors as to render him incapable of forming the felonious intent charged in the indictment. On the trial the defendant offered to prove his general character for many weeks previous to the commission of the offense charged. This the court below refused to permit him to do. Held, error. It must be supposed that the offer to prove general character was with reference to matters undergoing investigation, and that the accused either sought to establish 'a character for honesty, or that his intention was to confine the inquiry to'his general condition for several weeks previous to the commission of the offense charged, as bearing on his mental condition at the time of the commission of the offense. This he should have been permitted to do, the court confining the inquiry to the matter in issue.</p>

<p>Appeal from Guadalupe on a writ of habeas corpus heard helow before the Hon. Evebett Lewis.</p> <p>The facts are sufficiently indicated in the opinion of the court.</p>

<p>1. Corpus Delicti—Evidence.—Though necessary in every criminal case that the corpus delicti be proved, yet the proof may be made by circumstantial, as well as direct, evidence; and the legal test of its sufficiency is whether it satisfies the understanding and conscience of the jury beyond a reasonable doubt.</p> <p>2. New Trial—Conflict of Testimony.—Five state’s witnesses testified that the animals charged to have been stolen were in the mark of the party alleged, by the indictment to be the owner; six witnesses for the accused testified that they were in a different mark, belonging to a different party. Accused, being convicted, moved the court below for a new trial, which was refused. Seld, that the conviction will not be disturbed by this court.</p> <p>8. Reasonable Doubt.—It was not error to instruct the jury that the doubt on which they should acquit “was not a mere speculative doubt.”</p>

Tried below before the Hon. L. Lindsay. This revolting homicide was perpetrated in the county of Austin, on the 11th of October, 1875, by a son upon his aged father. They lived some six or seven miles apart, and. it does not appear that there had been any previous difficulty between them. Living and cropping with the deceased was his widowed daughter-in-law, who, as a witness for the defense, gave the earliest account of the difficulty which culminated in the homicide.

Tried below before the Hon. Gustave Cook. The significance of the rulings in this case will probably be better appreciated by giving the material portions of the evidence adduced by the state on the trial below.

<p>Appeal from the District Court of Gregg. Tried below before the Hon. Z. Norton.</p>

<p>1. New Trial—Incompetent Juror.—Being convicted of theft, the accused applied for a new trial on the ground that one of the petit jurors was not a citizen of the state, supporting the application by his counsel’s affidavit that at the time of the trial the non-citizenship of the juror was unknown, to accused and his counsel. Held, that it was not error to overrule the application; the juror’s non-citizenship is not oné of the statutory grounds-for new trial in felony cases; and the showing was defective in failing to make it apparent that the accused had been prejudiced by the non-citizenship of the juror, and also in failing to show that the ignorance of accused and his counsel of the non-citizenship of the juror was not attributable to their want of diligence.</p> <p>2. Charge op the Court.—Though, on his trial for theft, the accused neither-excepted to the charge given to the jury nor asked further instructions, yet, as it is apparent to this court that the district judge failed to distinctly set forth to the jury the law applicable to the case, and that a portion of his charge was without evidence to support it, and that the-entire charge may well have confused and misled the jury, it is held that the judgment be reversed and the cause remanded.</p>

Tried below before the Hon. James Q. Chenowith. The appellant met Dan Murray, a colored boy, in the highway, and with little or no provocation beat him over the head with a pistol, cut a gash in his throat with a pocketknife, forced him to dance, and maltreated him otherwise. They were total strangers to each other, and it would seem that appellant could have been actuated by no other motive than mere wantonness.

Tried below before the Hon. James Q. Chenowith. The facts of this revolting case are sufficiently stated in •the opinion of the court. Both the accused and the prosecutrix were negroes.

Tried below before the Hon. A. P. McCormick. The deceased, James Hammer, was a clerk in the store of Lang & Julif, in Brazoria county. Early on Monday morning, the-day of September, 1875, he was found -dead some fifty yards from the store-house, in which he had Ms bed, and of which he kept the key. The door of the store was unlocked and opened, and quite a number of articles had been taken from it.

<p>1. Theft by False Pretense.—The obtaining of a parcel from a carrier’s ■ servant by falsely pretending to be the owner of it is theft, if done with intent to deprive the owner of the same and to appropriate it to the use of the taker.</p> <p>2. New Trials in Felonies.—After a conviction for theft, the leading counsel of accused filed his affidavit that he had been necessarily absent from the trial of his client, who, in consequence, had not been defended successfully and as he might be; wherefore a new trial was prayed. Held, that the new trial was properly refused. Article 672 of the Code of Criminal Procedure prescribes the only causes for which new trials are allowable in felony cases. Paso. Dig., Art. 3137.</p>

<p>Appeal from the Criminal District Court of McKinney ■City. Tried below before the Hon. S. Habe.</p>

<p>2. Burglary—Indictment.—After alleging time and place, the indictment charged that the accused “ did then and there unlawfully, feloniously, and burglariously, in the night-time of said day, between the hours of nine o’clock and two o’clock of the same night, by force and fraud, enter into the store-house then and there belonging to and occupied by E. S., with the intent on the part of said W. then and there to commit a felony, to wit, ‘theft from a house,’ against the peace,” etc. Held, that the indictment is fatally defective, because it fails to charge an intent to commit the specific act under the circumstances defined by the statute as necessary to constitute the offense.</p> <p>"2. Criminal Law.—A party cannot commit burglary and theft from a house at the same time and by the same acts.</p> <p>•8. Practice nr this Court.—When it clearly appears from the record that the accused has been convicted on an indictment which is defective in substance, the conviction will bo set aside by this court, notwithstanding that no exception was taken to the indictment in the court below, nor in the assignment of errors.</p>

<p>Appeal from the Criminal Court of the- city of Paris, county of Lamar. Tried below before the Hon. James Q. Chenowith.</p> <p>The opinion of the court states all the material facts.</p>

<p>>1. Theft—Inhabitant.—Boarders, in a hoarding-house are not “ inhabitants ” within the meaning of Article 739 of the Penal Oode. Paso. Dig., Art. 2372. Wherefore, if one boarder in such a house commits a theft of property from a fellow-boarder’s room in the same house, his offense is not mitigated, by the provisions of that Article, from theft from a house to simple theft.</p> <p>-2. Same.—The Penal Oode deals more leniently with domestic servants and other inhabitants of a'house than with other persons, on account of the recognized right of such inhabitants to enter any part of the house at all times; but a boarder in the house has no such unlimited right of entry, and is not more favored in this respect than a stranger.</p> <p>■'8. Same.—See the opinion of the court in this case for distinctions affecting the construction of the provisions of the Penal Code above referred to.</p>

Tried below before the Hon. J. M. Lindsay. The indictment was found in the district court of Clay county on the 7th of August, 1874, and charged the appellant with having murdered one F. Jacoby,- in the county of Wilbarger, on the 8th of May, 1874.

Tried below before the Hon. Silas Hare. The bill of indictment was found by the grand jury of Cooke county on the 23d of August, 1873, and charged that William Early did, on the 24th of February, 1873, kill and murder Charles M. Winters, in the county of Cooke, of his malice aforethought, etc. The indictment contained three counts, this first of which charged that, the homicide was committed with a pistol, the second that it was committed with a large hackberry stick, and…

Tried below before the Hon. S. Hake. On the 27th of January, 1875, an indictment was filed in the criminal district court of the city of Dallas, charging the two appellants and William Bell with the murder of Reuben Johnson on the 27th day of December, 1874. The indictment contained two counts, one of which charged the murder to have been perpetrated by cutting the throat of deceased, and the other that it was committed by hanging.

<p>1. Theft—Indictment and Variance.—An indictment for the theft of a gelding charged that the animal was taken from the possession of one B., who was also alleged to be the owner; but the proof showed that the animal, when taken, was in the possession of an employé of B., the owner, by the latter’s permission. Seld, that the possession of the servant was that of the owner, and was properly laid in the owner; and that there was no variance between the proof and the charge in the indictment.</p> <p>2. Practice.—As a general rule, no testimony should be allowed after argument to the jury has commenced; but the Code of Criminal Procedure (Pase. Dig., Art. 3046) authorizes the judge to allow testimony at any time prior to the conclusion of the argument, if it appear necessary to the due administration of justice.</p> <p>3. Same.—Counsel for accused, while addressing the jury, moved the court to withdraw from the jury the. testimony of a state’s witness because he had not been sworn; whereupon the court allowed the witness to be recalled, sworn, and reexamined. Seld, that this was not error.</p>

<p>1. Theft of a gelding is theft of “ a particular kind of property, where the punishment is specially prescribed,” within the meaning of Article 758 of' the Penal Code (Paso. Dig., Art. 2396), and is, therefore, not within the purview of the two preceding Articles, 756 and 757.</p> <p>2. Same—Charge of the CJotjrt.—In a trial for theft of a gelding, the* court below instructed the jury as to the penalty for theft of a mare, omitting to instruct them as to the theft of a gelding. Held, error.</p>

<p>Appeal from the District Court of Karnes. Tried below before the Hon. II. Clay Pleasants.</p> <p>The character of the case is stated in the opinion.</p>

<p>1. Evidence—Accomplice.—Appellant being on trial foijthe theft of corn, the principal witness for the state testified that he was present with the-accused when the latter took the corn, and that he (the witness) took the corn off and sold it. Held, that this connection of the witness with the-transaction subjected his testimony to the statutory provision that a conviction cannot be had upon the uncorroborated testimony of an accomplice..</p> <p>2. Same.—Article 653 of the Code of Criminal Procedure (Paso. Dig., Art.. 3118) applies, not only to accomplices in a technical sense, hut to all witnesses who -wereparticipes criminis, whether as principals or accessories. In this article the term “ accomplice ” is not used in' a restricted or technical sense.</p>

Tried below before the Hon. James H. Bog-ers. The opinion states the case. After it was rendered, appellant’s counsel moved for a rehearing, but the motion was overruled.

<p>Appeal from the District Court of Atascosa. Tried below before the Hon. Gr. H. Noonan.</p> <p>The material facts are disclosed in the opinion of the court.</p>

<p>Appeal from the District Court of Bastrop. Tried below before the Hon. L. W. Moobe.</p> <p>The opinion of the court sufficiently states the case.</p>

<p>Appeal from the District Court of Washington. Tried, below before the Hon. E. B. Turner.</p> <p>The material facts are disclosed in the opinion of this court..</p>

<p>Appeal from the District Court of Karnes. Tried below before the Hon. H. Clay Pleasants.</p> <p>The opinion of the court shows the material facts.</p>

Tried below before the Hon. E. B. Turner. The opinion clearly indicates the material facts on which the rulings are based.

Tried below before the Hon. J. A. Carroll. The appellant was indicted and convicted of the theft of' •a beef steer, and his punishment assessed at two years in the penitentiary.

Tried below before the Hon. X. B. Saunders. The appellant, a colored man, was indicted for a forcible rape on Laura Austin, also colored, who was the principal witness for the state. She testified explicitly to the commission of the offense by the accused, but her evidence was-contradicted in several respects by other negroes. The jury, however, found the accused guilty, and assessed his punishment at five years in the penitentiary.

<p>Appeal from the District Court of Hopkins. Tried below before the Hon. Gr. J. Clark.</p> <p>The opinion sufficiently states the facts.</p>

Tried below before the Hon. H. B. Simonds. The indictment purported to charge the accused with having administered medicine to a pregnant woman, with intent to procure an abortion; but, as stated in the opinion, the word ‘ ‘ did ’ ’ was omitted where it was necessary to the allegation.

Tried below-before the Hon. W. J. Jones. The offense of which appellant was convicted was the-theft of a pair of drawers, worth $1.

<p>3. Justice’s Court—Jurisdiction.—Under the Constitution of 1876, justices of the peace have no jurisdiction of misdemeanors which are punishable by imprisonment. The power of justices to imprison for non-payment. of fines and costs, or ■ for enforcement of their legal authority in cases. within their jurisdiction, is not impugned.</p> <p>2. Gaming.—“ Pool ” being one of the games expressly prohibited by the • Penal Code (Pase. Dig., Art. 2050), it is an offense against the law, though played upon a licensed billiard table or ten-pin alley, provided money be • bet upon the game; and in a legal sense the table fees or the drinks are • money.</p>

Tried helow before the Hon. H. C. Pedigo. Two former appeals of this ease are reported in 36 Texas, 366, and 42 Texas, 360, where the evidence will be found in sufficient detail. In the opinion of this court will be found every other fact material to a clear comprehension of the rulings.

<p>Appeal Bonn.—The appeal in this case was taken, and the appeal hond executed, after the organization of the court of appeals, but the bond was conditioned to abide the judgment of the supreme court. Wherefore the appeal is dismissed for want of jurisdiction in the court of appeals.</p>

<p>Swindling—Indictment.—In an indictment for swindling by false pretenses it must be charged that the accused knew the pretenses to be false, and the omission of that allegation is good cause in arrest of judgment after verdict of guilty.</p>

Tried below before the Hon. M. H. Bokner. The evidence adduced by the prosecution was the testimony of witnesses who stated that on the night of January 6, 1876, the accused and Barrett, the assaulted party, were at Rhome’s grocery, in Smith county; that Barrett bought 50 cents’ worth of whisky, and to pay for it gave a $5 bill to Rhome,. who gave him in change three $1 bills, one 50-cent bill, and four quarters; that the accused and Barrett left the grocery together between…

W. H. Hays. The information in this case described the animal as “a certain bull, being then and there the neat cattle and corporeal personal property of S. W. Culp and S. J. Bue.” There was no evidence of the ownership thus alleged, and the accused asked the court below to instruct the jury that in order to convict him they must believe from the evidence the allegation thus made. The instruction was refused, and the accused took his bill.of exceptions.

<p>1. CoHTrau-ANOE.—"When an application for a continuance, addressed to the discretion of the court below, was overruled by it, and error is assigned thereon, this court will not reverse the judgment of'conviction unless it clearly appears that the continuance was improperly refused.</p> <p>2. Same.—Nothing will be supplied by presumption in aid of an application for a continuance; on the contrary, the applicant is presumed to have stated his facts as strongly as he could.</p> <p>8. Same.—Process for witnesses should be sued out within a reasonable time, and an application for a continuance for want of their testimony does not show diligence hy stating in a general way that subpoenas were sued out and returned “not found.” The application should show to whom and when the subpamas were delivered, and when and by whom they were returned.</p>

<p>Appeal from the ■ District Court of Guadalupe. Tried below before the Hon. John P. White.</p> <p>The opinion discloses the material facts.</p>

Tried below before the Hon. J. H. Banton. The appellant was indicted at the December term, 1872, of the district court of McLennan county for the murder of one Luce. At the April term, 1873, he was tried, and the jury found him guilty of murder in the second degree, and assessed his punishment at seventeen years’, imprisonment in the penitentiary.

Tried below before the Hon. W. D. Wood. The indictment charged that the appellant, together with Joe Clark, Alfred Shackleford, and Reed Sheilds, did, on the 15th of February, 1876, kill and murder Nero Spivey, by beating and mortally wounding him with sticks, etc. It appears from the evidence that the difficulty arose out of the election held on the day of the lulling—the accused charging the deceased with having voted the Democratic ticket, and, a quarrel ensuing, the…

<p>Appeal from the District Court of Jack. Tried below before the Hon. J. R. Fleming.</p> <p>The case is clearly stated in the opinion of the court.</p>

<p>Appeal from the District Court of Falls. Tried below before the Hon. X. B. Saunders.</p> <p>The opinion states the case.</p>

<p>Appeal from the District Court of Caldwell. Tried below before the Hon. L. W. Moore.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>County Court—Jurisdiction of Assaults.—Being tried in the county court for an aggravated assault, appellant was convicted of simple assault, and his fine assessed at $60; whereupon he moved in arrest of judgment on the ground that, under the Constitution of 1876, the county ■ courts have no jurisdiction to try or determine cases wherein the fine • assessed does not exceed $200. Held, that the motion in arrest was cor rectly overruled. The act of August 18, 1876, amendatory of the County • Court Act, confers the jurisdiction.</p>

<p>1. Practice—Lost Charge.—If a charge to the jury has been lost before-the transcript has been made out, the appellant, if he desires to assign error upon it, should take steps to supply it in the court below, so as to-have it brought up for revision by this court.</p> <p>2. Errors Unassigned.—In a felony case judgment of conviction will be reversed for errors which, though not assigned, cannot be considered as. waived by the appellant or cured by the judgment; as, for instance, if the indictment failed to charge any offense against the law.</p> <p>3. Theft of Animals.—The word “horse,” in its generic sense, includes all' animals of the horse kind, of whatever age or sex; but in Article 2409, Paschal’s Digest, it is used in a specific, and not a generic, sense, and does-not include geldings, mares, etc. An indictment, therefore, for the theft of one of the specified animals must itself be specific, and the proof must, correspond with its averments, in order to support a conviction; and as the-indictment in this case charges the theft of a filly, while the proof showed, the animal to be a mare, the conviction is set aside.</p>

Tried below before the Hon. James Q. Chenowith. The appellant was indicted and found guilty of an assault with intent to murder, and his punishment was assessed at three years in the penitentiary. The grounds of his appeal are fully disclosed in the •opinion of the court.

Original motion in this court to reinstate on the docket the case of the appellant, which, on a previous day of the term, had been dismissed on suggestion of the attorney general. The cause was an appeal from a conviction of felony, taken to the supreme court before the organization of the court of appeals, to which it was transferred by the former court.

<p>Appeal from the District Court of Bexar. Tried below -before the Hon. Gr. H. Noonan.</p> <p>The opinion states the material facts.</p>

Tried below before the Hon. W. H. Burkhardt. The trial below was had on the 28th of August, 1876, ;and before the promulgation of the acts of the legislature then in session.

Habeas corpus from Hunt county. Heard below before the Hon. G. J. Clakk. The purpose of the petition for habeas corpus was to be admitted to bail. In .the case of Wilkerson v. The State, at the Austin term, 1877, this court decided, on full consideration, that the indictment need not aver the locality of the wound.

Tried below before the Hon. X. B. Saunders. The opinion of the court and argument of counsel disclose the material facts. The indictment is set out at length in the report of a former appeal, 43 Texas, 467.

<p>Appeal from the County Court of Bee. Tried below before the Hon. W. R. Hats.</p>

<p>Appeal from the District Court of Victoria. Tried below before the Hon. H. Clay Pleasants.</p>

Tried below before the Hon. W. B. Hays. Appellant was convicted of an aggravated assault upon a female, and his punishment was assessed at a fine of $100.

<p>Appeal from the District Court of Cameron. Tried below before the Hon. Edward Daugherty.</p> <p>The material facts are clearly, though concisely, stated in the opinion.</p>

<p>.1. Practice.—Article 586 of the Code of Criminal Procedure, allowing two addresses to the jury in felony cases, does not apply when the accused has but one counsel, unless he himself sees fit to address the jury.</p> <p>2. Same.—Counsel for the state, in his opening address to the jury, should fairly develop his case and state the law on which he relies. If he defers this till his second address, the presiding judge may allow the defendant's counsel to reply, and afterwards permit the state’s counsel to close the argument.</p>

. Tried below before the Hon. H. Clay Pleasants. A clear and comprehensive summary of the most material facts is given in the opinion of the court.

<p>Appeal from the District Court of Leon. Tried below before the Hon. Spencer Ford.</p>

<p>Appeal from the County Court of Polk. Tried below before the Hon. J. O. Stevens.</p> <p>The punishment assessed was “ eight hours in jail and fine ten dollars.”</p>

Tried ¡below before the Hon. J. H. Banton. At page 408 of this volume will be found the report of the •appeal of this same appellant from a judgment of conviction of murder in the second degree. The present case arose out of the same rencounter, and the two cases took the same course through the courts.

<p>Practice nr the Court of Appeals.—When the record recites that the jury were “ duly elected, tried, impaneled, and sworn,” this court will presume that the oath administered to them was the oath prescribed in the Code of Criminal Procedure.</p>

<p>Appeal from the District Court of Houston. Tried below before the Hon. K. S. Walker.</p>

'Tried below before the Hon. E. S. Walkeb. In the opinion of this court will be found so much of the indictment as is involved in the rulings.

<p>Appeal from the County Court of Lavaca. Tried below before the Hon. T. A. Hester.</p> <p>The material facts are stated in the opinion of the court.</p>

<p>1. Arson—Indictment for arson charged that the house, when burned, contained a little child, who was seriously injured by the fire. Held, that this allegation did not infect the indictment with duplicity, and, if true, was a proper allegation, in view of Article 706 of the Penal Code, which empowers juries to increase the punishment for arson when bodily injury-less than death ensued from the offense. Pase. Dig., Art. 2337.</p> <p>2. Practice.—It is not error to receive the verdict of a jury in the absence of the defendant’s counsel, the defendant himself being present and suffering no prejudice.</p>

<p>1. Juries.—The act of August 1, 1876, evidently intends that, when the judge-shall find that no jury has been selected before any given term of the court, he shall at once, in order to supply a jury for the term then pending,, proceed to have done whatever has been omitted.</p> <p>2. Same—Challenge to the Array.—Defendant in a felony case challenged the array of petit jurors on the ground that they had not been drawn by jury commissioners, and that the court had not appointed jury-commissioners. In the bill of exceptions to the overruling of the challenge the judge certified that no jury was selected prior to the term, in accordance with the jury law, and that he caused the sheriff to summon-qualified persons to serve as petit jurors, out of whom were selected the-jury who tried the cause. Held, that the challenge should have been sustained. If no jury commissioners had been appointed, the court should have appointed them. If they had been appointed and had failed' to perform their duties, the court should have required them to perform, them. But there is no law in force under which the sheriff is authorized to select the persons to constitute the regular jurors for the term.</p> <p>3. Same.—A lawful jury cannot be formed otherwise than as provided by the-statute.</p>

<p>1. Indictment.—After a plea of not guilty it is too late to object that the-indictment fails to show at what term, of the court it was presented.</p> <p>2. Evidence.—Defendant’s witnesses having testified that they knew the general character for truth of the principal state’s witness in the community - where she lived, it was error to allow witnesses for the state, over objection of the defendant, to testify that, although they did not know the general character for truth of the impeached witness, yet, from their general, knowledge of her, they would believe her on oath.</p> <p>8. Tbansfeb of Causes fbom the Distbict to the County Coubt.—A. theft of cattle, worth less than $20, committed in 1872, was only a misdemeanor as the law then stood; wherefore the present case was properly transferred, in 1876, to the county court by the district court. But the act of May 17, 1873, made the theft of cattle a felony, regardless ofthevalue.</p> <p>4. Constbuction of Statutes.—The act of August 21,1876, amendatory of" Article 767 of the Penal Code, does not repeal Article 768.</p>

<p>1. Evidence of General Character.—When a criminal intention is of the essence of the offense charged, the accused may, as relevant to the question of his guilt or innocence, put in issue and prove his general good character in that respect which is impugned by the accusation.</p> <p>2. Same—Charge to the Jury.—In a trial for theft the court in effect instructed the jury that the general good character of the accused for honesty was to be considered only in assessing his punishment, in case they found him guilty. Held, error.</p>

<p>Appeal from the Criminal District Court of Galveston. Tried below before the Hon. Gustave Cook.</p> <p>The opinion of the court states the case.</p>

<p>Appeal from the County Court of Houston. Tried below ■before the Hon. S. A. Miller.</p>

<p>3. Indictment.—Being charged with a felony, the accused moved to quash the indictment because no entry of its presentment in open court by the grand jury appeared on the minutes of the court. Held, in view of the requirements of the Code of Criminal Procedure, that this exception to. the indictment, being interposed at the proper time, and verified by the record of the court below as judicially known to it, was fatal to the indictment, and it was error to overrule the motion to quash. Pase. Dig., Arts. 2857, 2858.</p> <p>2. Practice nr the Court of Appeals.—Unless exceptions were taken in the court below to the proceedings prior to the indictment, this court will presume them to have been regular, and they need not be set out in the • transcript.</p>

<p>1. Theft—Evidence.—On a trial for theft of a gelding the state proved that, subsequent to the theft, the animal was sold by accused to a witness, from whom the owner subsequently made reclamation; whereupon the witness informed the accused of the claim thus set up to the animal, and a part of the conversation which then ensued between the witness and the accused was elicited by the state. Held, that the accused was entitled, on the cross-examination, to have the witness state the remainder of the conversation.</p> <p>2. Evidence—Bill op Exceptions.—In reserving exceptions to the exclusion of the explanation given by the accused of his possession of the stolen property, the bill of exceptions should show what the explanation was, so that its relevancy and materiality could be considered.</p> <p>3. Evidence.—On a trial for theft of a branded animal a witness for the defense swore he saw the accused trade for the animal with one O., and accused offered certificates of the county court showing that 0. and two other persons in the county had recorded the brand as theirs. Held, that it was error to exclude the certificates from the jury on objection by the state.</p> <p>4. Reasonable Doubt may not only arise out of the evidence, but may be the result of a want of evidence. On this subject instructions to juries should follow the statute (Paso. Dig., Art. 3105), without further explanation.</p> <p>6. Chabge on Weight op Evtdenoe.—The court below instructed the jury, in effect, that if the accused stated that he got the stolen property from one person, and the proof showed that he got it from a different one, it was a suspicious circumstance which the jury might consider of. Held, to be a charge on the weight of evidence. Great caution should be exercised in framing instructions to juries, so as to avoid charging on the weight of the evidence.</p>

<p>Appeal from the District Court of Gonzales. Tried below before the Hon. Everett Lewis.</p> <p>The material facts are disclosed in the opinion of the •court.</p>

Tried below before the Hon. J. A. Carroll. The appellant was indicted on the 5th of February, 1875, for the theft of a cow, alleged to be the property of S. Gr. Thompson. A trial was had at the fall term, 1876, when he was found guilty, and his punishment assessed by the jury at confinement in the penitentiary for a term of two years.

Tried below before the Hon. L. W. Moore. The charge was theft of a cow. The jury found the ¡appellant guilty, and assessed his punishment at two years in the penitentiary.

<p>Appeal from the District Court of Madison. Tried below before the Hon., W. D. Wood.</p> <p>The opinion sets out the material portion of the indictment, and all other necessary matters.</p>

<p>Appeal from the Criminal District Court of Harris. Tried below before the Hon. Gustave Cook.</p>

Tried below before the Hon. Gustave Cook. E. J. Dunham, a witness for the state, testified that the assaulted party, Julia Dunham, was his wife; that on December 16, 1875, the defendant Hines brought a letter from Mrs. Hornsinger, requesting Mrs. Dunham to come and settle a fuss. Hines would not tell what the fuss was about. Afterwards, on the same day, the appellant Andy Dunman came twice with the same letter.

Tried below before the Hon. Gustave Cook. In August, 1874, William E. Jones, H. C. Ring, and the-appellant were jointly indicted for the robbery of James Highland on the 28th of July, 1874. The defendants severed in their trials. Ring was first tried, and, being convicted, appealed to the supreme court, by which, in 1875, the judgment was reversed' and the cause remanded. 42 Texas, 282.

<p>Appeal from the District Court of Goliad. Tried below before the Hon. D. D. Claiborne.</p>

<p>Appeal from the District Court of McLennan. Tried below before the Hon. X. B. Saunders.</p> <p>The material facts are disclosed in the opinion.</p>

<p>A Recognizance pok an Appeal recited that the defendant was “ charged with carrying a gun on election day.” Held, that, as the mere carrying of a gun on an election day is not an offense against the law, the recognizance is defective in failing to make it apparent that the defendant is accused of an offense against the laws.</p>

Tried below before the Hon. T. C. Goodner, County Judge. . The information in this case was filed under the “Act regulating elections,” approved August 23, 1876, the 25th section of which makes it an offense, punishable by fine of not less than $100 nor more than $500, “to carry any gun, pistol, bowie-knife, or other dangerous weapon, concealed or unconcealed, on any day of election, during the hours the polls are open, within the distance of one-half mile of any poll or…

Tried below before the Hon. W. H. Bubkhabt. The evidence for the state consisted of the testimony of Henry Griffith, who stated that he and the defendant went together to kill witness’ yearling, which was fat and wild; that witness had no gun that would shoot, and therefore loaded his pistol, with which to kill the yearling in case they •could not pen it; that defendant carried the pistol swung to the horn of his saddle, and they went only in search of the animal, and…

Tried below before the Hon. A. J. Booty. The accused, it appears, was a witness at the trial of Simon Bolding for an assault with an intent to murder Bright Cole, and on his testimony at that trial the charge •of perjury was assigned in the present case. The statements constituting the perjury are disclosed in the opinion of this court.

<p>New Trial—Newly-discovered Evidence.—In applications for a new trial on account of newly-discovered evidence, the allegations of the affidavit must at least be such as would have sufficed for a continuance; should disclose the source of the affiant’s information, and affirm his belief of its truth; and should satisfy the court that he had not been remiss in point of diligence.</p>

<p>1. Theft of Animals.—The act of August 21, 1876, providing that theft of property of less value than 020 shall be punishable by confinement in the county jail, etc., does not repeal the act of May 17, 1873, amendatory of Article 766 of the Penal Code, whereby theft of cattle, sheep, goats, or hogs i^ punishable by imprisonment in the penitentiary. The ease of Spence v. The State, ante p. 541, cited on this point with approval.</p> <p>2. Evidence—Pbaotice.—If, on cross-examination of a state’s witness, the defendant calls out illegal testimony, he is not entitled to have it withdrawn from the jury.</p> <p>3. Same—Cattle-marks.—A mark is admissible as proof of ownership of an animal, though not recorded. Johnson v. The State, ante p. 333, cited on this question and approved.</p> <p>4. Same—Effect of Impeachment of a Witness.—The credibility of a witness, although impeached, is a question for the jury, and the court should, not assume that the witness has been successfully impeached, and therefore instruct the jury to disregard his testimony.</p> <p>5. Charge of the Court.—The only evidence identifying the accused as the perpetrators of the theft was that of a witness for the state, who testified that he helped the accused carry off and kill the stolen hog, but then had no reason to doubt the ownership claimed by the accused. Held, that as the jury might, from all the evidence, have inferred that the witness was an accomplice, the court should, though not so asked, have instructed the jury that, if they did so infer, they could not convict on the uncorroborated testimony of the witness.</p>

Tried below before the Hon. Thomas B. Greenwood, Special Judge. The indictment was for the theft of a yearling. The accused was found guilty, and his punishment assessed by the jury at two years in the penitentiary.

<p>_ 1. Assault with Intent to Murder.—“When the question is whether an assault with a deadly weapon has been proved, and the weapon is one-which might or might not be dangerous to life, according to the manner of its use, the question is one for the jury, under proper instruction by the court.</p> <p>2. Same—Verdict.—On a trial for assault with intent to murder, the jury found a.verdict of guilty of an “assault with intent to kill.” Held, that, the verdict is not responsive to the charge, and will not support a judgment, of conviction for an assault with intent to murder. Under our Code there is no such offense as assault with intent to kill.</p>

<p>Appeal from the District Court of Williamson. Tried below before the Hon. E. B. Turner.</p> <p>The opinion sufficiently states the case.</p>

Tried below before the Hou. W. H. Burkhart. There were three of the appellants, respectively known as George Washington, George Whitfield, and Bob White, all colored men and penitentiary convicts. A clear and comprehensive summary of the facts will be found in the opinion of this court.

Tried' below before the Hon. W. H. Burkhart. The indictment was for the theft of a steer. The appellant was found guilty, and his punishment was assessed by the jury at two years in the penitentiary.

Tried below before the Hon. L. W. Moore. The indictment was against the appellant and Hezekiah Hampton, and charged them jointly with the murder of Henry Shackleford on the 6th of March, 1875. Hezekiah Hampton, it was proved, was a son of the ■appellant, and a penitentiary convict who had escaped from his guards, of whom the deceased was one.

Tried below before the Hon. J. M. Lewis, County Judge. The case is stated in the opinion. The charge was an assault and battery.

<p>1. County Court—Trial by the Court of Criminal Causes.—Under the act of June 16, 1876, to organize the county courts, a jury, in criminal cases, may be waived, and trial be had before the court.</p> <p>2. Informations.—The requisites of informations, in criminal cases, and the practice controlling them as a mode of prosecution, are prescribed by the General Laws of 1876, pages 20 and 87, and Article 2870, Paschal’s Digest.</p> <p>3. Same.—An information is not invalid because it does not appear to have been made and returned into the court at a regular term thereof; nor because it was not signed by the county attorney, when it recites and purports, on its face, to have been made by that officer, and is accompanied with the sworn complaint made before him. It would be better practice, however, for the county attorney to sign it.</p> <p>4. Aggravated Assault and Battery.—Information charged that the accused beat, etc., one B. with a pestle, which, being used as a club, was a deadly weapon, and therewith inflicted serious bodily injury on B. Held, that these averments were sufficient, in substance, to charge an aggravated assault and battery.</p> <p>•5. Permissible Violence.—Article 2145, Paschal’s Digest, which specifies the purposes for which violence may be lawfully used, is controlled by the next succeeding Article, which limits such violence to the degree necessary to effect the purpose.</p> <p><6. Same.—Being charged with aggravated assault and battery, committed with a pestle the size of a man’s wrist, and used as a club, the accused claimed immunity under the 2d clause Of Article 2145, Paschal’s Digest, which permits the use of violence for the preservation of order at meetings for lawful purposes. Held, in view of the evidence, that the use of the pestle as a means of preserving order was unnecessarily severe, and was not warranted by the Article cited.</p>

Tried below/ before the Hon. Everett Lewis. The appellant was indicted and tried for assault with-, intent to murder G. W. Hairgrove ; was found guilty of an. aggravated assault, and his fine assessed at $100.

Tried below before the Hon. Spencer Ford. The nature of this case is disclosed in the opinion of the court. Several witnesses were present when the homicide was committed, on the 14th of March, 1876. Some of them were examined for the state and others for the defense. All concurred in proving that the accused killed the deceased by a pistol shot, and the only discrepancies related to the conduct of the deceased at the time of the killing.

<p>Appeal from the .District Court of Hill. Tried below before the Hon. D. M. Prekdergast.</p> <p>The opinion states the case.</p>

Tried below before the Hon. Gustave Cook. The indictment was returned on the 22d of October, 1875, and laid the killing on the 10th of June of that year.

Tried below before the Hon. Gustave Cook. The indictment charged the accused and one Godfrey Young with the theft of a steer and two cows, which, on the 9th of August, 1875, were, on search warrant, found in the stable of the appellant, fastened up.

Tried below before the Hon. Gustave Cook. A clear and ample statement of this case will be found in the opinion. The witness Thomas Shanholtz was indicted jointly with the appellant, but was tried and acquitted prior to the trial of the latter. It appears that the appellant had got Shanholtz to change the $100 note, which the latter placed in the hands of the sheriff.

Tried below before the Hon. X. B. Saunders. The indictment impleaded Doc Long and W. A. Carlin,, as well as the appellant, and charged all three as principals., There was no witness testified who saw the shot fired by which the deceased, W. C. Lillard, came to his death. The principal facts of the case are summed up in the opinion of this court as satisfactorily as is practicable within any reasonable space.

<p>Appeal from the County Court of Houston. Tried below before the Hon. S. A. Mugler, County Judge.</p>

Tried below before the Hon. John S. Conwat, County Judge. The opinion states the case.

<p>1. Transcript.—The transcript of this cause failing in sundry respects to conform to the rules of court, certiorari is awarded requiring the clerk of the court below to send up a new and complete transcript.</p> <p>'2. Same.—See the opinion for the rules prescribed for the preparation and transmission of transcripts returnable to this court.</p>

Tried below before the Hon. James Q. Chenowith. This appeal is by Levi Chapman and John W. Young, who were indicted jointly with Gabe Butler and Randall Butler for the theft of a cow, the property of one John W. Stiles.

Tried below before the Hon. Spencer Ford. The jury found the appellant guilty of an assault with intent to murder, and assessed his punishment at two years in the penitentiary.

Tried below before the Hon. T. C. Barden. The appellant was indicted at the March term, 1876, of the court below for the murder of Canuta Figeroa, by-shooting him with a Winchester rifle, on the 5th of January, 1876. It appears from the evidence that, on the day of the killing, the accused, the deceased, and some others were at Murphy’s store, near the San Antonio river, and while there were apparently on friendly terms with each other.

Tried below before the Hon. A. J. Booty. The appellant was found guilty of murder in the first degree, and his punishment assessed at confinement for life in the penitentiary.

Tried below before the Hon. D. M. Pendergast. The forged instrument purported to be a note for $15, dated August 16, and payable September 1, 1876, to R. A. Barnwell or bearer, subscribed J. W. Griffin. It contained a clause to the effect that a bay mule, with a delineated brand, was collateral security for payment of the note.

<p>1. Practice—Certificate to Transcript.—The following certificate of" authentication, though duly attested, signed, and sealed by the clerk, is clearly defective, viz.: “ Mine pages of manuscript contains a true copy of all the proceedings in the cause.” The case, however, is not dismissed on this account, but the clerk below is required to send up another and . complete transcript, duly authenticated.</p> <p>2. Attention of clerks is specially invoked to the animadversions of the court. upon carelessness in the preparation of transcripts.</p> <p>3. Transcripts in ¡Felony Oases must be mailed to the clerk of this court;. there is no authority to deliver them to the appellants or their attorneys.</p> <p>4. Assault with Intent to Murder.—An assault with intent to kill is not. an offense known to the law of this state, nor does that phrase denote the • offense of assault with intent to murder, which is defined in the Penal Code, and of which the criterion is the inquiry whether, if death had ensued, the killing would have been murder.</p> <p>6. Same—Charge op the Court.—In trying an assault with intent to mur- - der, the court below, in its charge to the jury, not only misnamed the offense by denominating it an assault with intent to kill, but failed to so define murder, or explain its elements, as to enable the jury to apply to . the evidence the criterion of the offense charged. Held, that the charge is erroneous by reason of its failure to give to the jury the law applicable to.the case.</p>

<p>1. Municipal Corporations—Taxing Power.—No county, city, or town in this state has power to levy an occupation tax exceeding one-half the rate levied by the state, nor to tax property in excess of one-half the state tax, except for the purposes, and under the limitations, specified in section 9 of Article 8, of the Constitution of 1876.</p> <p>2. Same.—See the opinion for the reasons why a city “license tax” on vehicles used for hire is held to be an occupation tax, and to be void because in excess of half the rate levied by the state.</p>

<p>Habeas corpus sued out to the Court of Appeals.</p>