Volume 10 — Texas Court of Appeals Reports

Tried below before the Hon. G-. H. Noonan. The appellant was convicted of murder in the second degree upon an indictment charging him with the murder of Bruno Hidalgo, on January 1, 1881. Clothilda Cadena y Hidalgo, wife of the deceased, was the first witness for the State. She testified, in substance, that about ten o’clock on the night of the killing, January 1, 1881, the deceased and the defendant returned from San Antonio to Charles Dignowitty’s wood camp, on the Salado.

Tried below before the Hon. John 0. Russell. The indictment charged that the appellant, on or about August 15, 1879, in the county of Nueces, made an assault on one Charles McKenzie, and then and there put the said McKenzie in fear of life and bodily injury, and one certain sheep, the property of one Jane McKenzie, from the possession and against the will of the said Charles McKenzie, then and there holding- the said property for the said Jane McKenzie, then and there…

Tried below before the Hon. John 0. Russell. At the September term, 1876, the indictment in this case was returned by the grand jury of San Patricio county, and charged the appellant with the murder of Edward R. Gamer, on August 26, 1876, by shooting him with a pistol. At a subsequent term of the District Court of San Patricio county, the venue was changed to the county of Nueces in consequence of the impracticability of obtaining a qualified jury in the former county.

<p>1. Adultery, as defined by the Penal Code, art. 883, is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, when either is lawfully married to some other person.</p> <p>2. Sajme.—The other essentials being present, the crime of adultery depends upon either of two circumstances: (1) The living together and carnal intercourse with each other, or (2) habitual carnal intercourse -without the living together.</p> <p>3. Same—Indictment which merely charges that the parties “ did then and there unlawfully cohabit together and carnally know each other,” is insufficient to charge adultery. See the opinion for charging clause set out and held bad.</p> <p>4. Same — Amendment.—When, as in this case, the defect in the indictment is matter of substance, the indictment is not amendable, and the prosecution will be dismissed.</p>

<p>1. Theft—Ventje.—Theft may be prosecuted either in the county where the property was taken or in any other county through or into which it was carried by the thief.</p> <p>2. Same — Gbade of Offense.—If the prosecution be in a county other than that in which the theft was committed, and the evidence shows that the value of the stolen property was enough to make the offense a felony, but that the value of the portion carried into the county of the former was not enough to make the offense a felony, the conviction can be for misdemeanor only.</p> <p>8. Evidence—Pbactice.— If testimony be objectionable as hearsay or because it presupposes the existence of better evidence, its competency must be challenged in the trial court, and cannot be primarily assailed on appeal. ■</p> <p>4. Indictment—Theft of a bank-note is sufficiently charged if the indictment charges theft of a “ bank-bill,”—the latter being the statutory term in this State.</p> <p>5. Vabiance—Idem Sonans.—Indictment charged theft of a note on the “ Chatam National Bank;” but the note as proved and exhibited was on the Chatham National Bank. Held idem, sonans, and not a material variance between the alleged and the proved appellation of the bank.</p>

Tried below before the Hon. Spencer Ford. The indictment charged the appellant with an assault with intent to kill and murder one Julius Johnson, in Milam county, April 9,1880. A verdict of guilty was returned against him by the jury, and his punishment was fixed at two years in the penitentiary.

Tried below before the Hon. H. C. Pleasants. This is a branch of the case of Greta v. The State, 9 Texas Ct. App. 429, where a full account of the facts is reported. That case was for the murder of Julian Andreda, the step-father of Pabla, the appellant’s wife. The indictment in the present case charged the appellant with an assault upon Pabla, with intent to murder her.

Tried below before the Hon. J. P. Bell, County Judge. The information charged an aggravated assault and battery upon Albert Solomon, with slung shots, in Austin county, on the 18th day of January, 1880. The punishment imposed by the jury, in a verdict of guilty of aggravated assault, was a fine of $150. No statement of facts comes up with the record.

<p>1. Jury Law.—■ Only such persons as under our Constitution and laws are qualified voters in the State and county are competent to serve on juries in this State.</p> <p>2. SAME'—New Trial.— Several jurors having answered on voir dire that they were citizens of this State, they were accepted and impaneled. After trial and conviction it was discovered that they were in fact citizens of Mexico, whereupon the accused moved for a new trial, and set up their non-qualification as cause. Held, that the court erred in refusing to grant a new trial.</p> <p>3. Same — Practice.—Proposed jurors having qualified themselves on voir dire, the accused is not required to presume them guilty of perjury, and extend his investigation. See the opinion for state of facts which will avoid the stringent application of the rule laid down in Roséborough v. The State, 43 Texas, 570; O'Meally v. The State, 1 Texas Ct. App. 180, and Lester v. The State, 2 Texas Ct. App. 423.</p> <p>4. Charge oe the Court.—Note suggestions to trial judges of the danger of invading the powers of the jury by transcending in then- charges the language of the Code respecting the relations of the jury to the evidence adduced.</p>

Error from the District Court of Liberty. Tried below before the Hon. Edwin Hobby. A clear statement of all the material facts of this important, interesting and well-contested case will be found in the opinion of the court. The case of which the present is an offshoot had its origin in the assassination of Green Butler, in Galveston county, May 19,1872. Andrew J. Walker, Amos Walker and Jeff.

Tried below before the Hon. J. C. Russell. The appellant was indicted for the theft, in Webb county, on or about the 6th day of May, 1880, of one steer, the property of one Peter Steffian. His trial resulted in conviction, with two years’ confinement in the penitentiary assessed as his punishment.

Tried below before the Hon. R. R. Gaines. The indictment charged the appellant with the murder of his father, George 0. Bright, in Fannin county, on the 10th day of February, 1875. He was convicted of murder in the second degree and awarded twenty-two years in the penitentiary. The judge’s charge, upon which the main issue arose on appeal, is here incorporated in full, as directed by the court.

Tried below before the Hon. W. D. Wood. The matters involved in the rulings are disclosed in the opinions severally delivered on the motion to dismiss the appeal and on the errors assigned. The jury assessed a fine of $150 against the appellants.

<p>Appeal from the District Court of Houston. Tried below before the Hon. W. D. Wood.</p> <p>The opinion discloses the case.</p>

<p>Appeal from the County Court of De Witt. Tried below before the Hon. O. S. Threlkeld, County Judge.</p> <p>All material facts appear in the opinion of the court.</p>

<p>Slaughtered Animals—Failure op Butchers to Report.—Article 756, Penal Code, by which any butcher failing to report the animals he slaughtered is subject to fine, defines a substantive offense, not limited by or dependent on any other enactment, and is a general law in force throughout the State. There is no repugnancy between it and article 4565 of the Civil Statutes, which shows the kind of a report required of butchers under the penalty prescribed by said articles756.</p>

Tried below before the Hon. L. W. Moore. Appellant was convicted of cattle-theft, and a term of two years in the penitentiary was assessed as his punishment. The opinion discloses everything relevant to the rulings.

<p>1. Malicious Mischief —Indictment.—An indictment which charges the wounding of the animal to have been either wilful or wantop. sufficiently charges an offense under article 680 of the Revised Penal Code. But such indictment would not have been good under the old law. Under that law the wounding must have been charged as both wilful and wanton.</p> <p>S.. Same — Case Stated—Arrest of Judgment.—The indictment charged the wilful wounding of a cow on November 1,1879, but the proof showed that the offense, if committed at all, was committed on the last day of June or first of July, and before the Revised Statutes took effect. The defendant assailed the indictment as insufficient with reference to the old law, by motion in arrest of judgment. Held, that, as the indictment was sufficient to charge the offense under the present law, the court did not err in overruling the motion in arrest. See opinion for rule laid down.</p> <p>8. Same—Evidence—Practice.— Objection to the evidence of the . date of the commission of the offense should have been made at the time it was offered, or a subsequent motion to strike it out, and if overruled, might have been good ground for a motion in arrest of judgment because it had not been legally rendered against the defendant.</p> <p>4. Charge of the Court—Principal Offenders.—In order to hold a person liable with others as a principal in the commission of an offense, there must be a combination of both act and intent. See the opinion for a charge on the question held to be erroneous.</p>

<p>Charge of the Court—Practice.— Whether asked or not, the court must, in felony cases, by a proper charge apply the law to every conclusion legitimately deducible from the evidence. If there is any evidence tending to establish a defense, the defendant is entitled to a charge directly upon the point, no matter what maybe the view of the court on the weight and value of the testimony; and a charge composed of statutory definitions generally applied will not suffice.</p>

Tried below before the Hon. G. N. Aldredge. The appellant was indicted for theft of a horse in Dallas county, May 29, 1880, the property of W. T. Wilson. He was tried at the October term, 1880, of the District Court of Dallas county, found guilty by the jury, and' his punishment assessed at ten years in the penitentiary.

Tried below before the Hon. G-. H. Aldredge. The conviction was for the theft of a horse, and the punishment assessed by the jury was fifteen years in the penitentiary. The opinion discloses the single question involved in the appeal.

<p>Appeal from the District Court of Lampasas. Tried below before the Hon. W. A. Blackburn.</p>

<p>Appeal from the District Court of Anderson. Tried below before the Hon. P. E. Edwards.</p> <p>The indictment charged the theft, on the 22d day of November, 1819, in Anderson county, of one hundred and thirty dollars in bills of various denominations, current money of the United States, the property of J. S. Sandifer. .Upon his trial the defendant was found guilty by the jury, and the punishment assessed was a four years’ term in the penitentiary.</p> <p>The substance of the testimony was that the defendant was employed by Sandifer to assist him repair a privy on the latter’s premises. When the two commenced work, Sandifer hung his coat, in the pocket of which was his pocket-book containing the money alleged to have been stolen, on a plank some three? or four feet distant from the privy. The defendant worked on that side of the privy and near the coat, and Sandifer worked on the opposite side, and while at work could not see the defendant. At one time while at work, Sandifer went a short distance from the privy to get a plank. The two were at work some fifteen or twenty minutes, and the defendant left the privy between one and five minutes before Sandifer quit work and went in to dinner. Sandifer did not notice the direction in which the defendant went.</p> <p>Within five minutes after entering the house Sandifer remembered having left his coat where he hung it, and returned for it, and found his coat where he had hung it, but the pocket-book and money were missing. He found, on the ground under his coat, a paper that he had left hi his coat pocket. The witness, Sandifer, when he returned for his coat saw a negro woman pass through the back gate of his yard, with a bucket of water, going to a negro-house some thirty feet distant, and passing within ten feet of where the coat was hanging; but she did not stop. The privy stood in an open lot through which persons were in the habit of passing in going to and from dinner, but he saw no one pass when himself and defendant were at work or between the time defendant left and he returned for his coat and money.</p> <p>William Barbour testified substantially that, a short time after the theft of the money, Sandifer told him who he suspected, and proposed to witness to pay him $25 if he would put him on the track of its recovery. Some two or three weeks after this conversation with Sandifer, defendant handed witness a twenty-dollar bill and asked him to get it changed. Witness took the money into a neighboring store and purchased twenty-five cents worth of tobacco, receiving $19.75 in change. The defendant then instructed witness to give the change to Ann Grodfy, to keep for him. The witness remarked to the defendant, “You seem to be rising,” and defendant answered, “People say I am building houses and buying land with Sandif er’s money. ” Witness asked, “Do they 2 ” and defendant replied, “Yes, but they can’t prove anything, and besides they can’t hurt me any how; I didn’t take it out of the pocket, but picked it up off of the ground under the coat.” Witness asked, “ Where ib the-pocket-book?” and he replied, “Oh! that’s gone to h—1 long ago, and that will never be a witness against me.”</p> <p>Subsequent to the defendant’s first arrest and discharge, the witness, according to his testimony, had another conversation with defendant, during the course of which the ■ defendant said to him that Sandifer had visited him in jail during his confinement, and, telling him that he knew some of the money had been spent, proposed to defendant that if he would return $15, he would be satisfied. Defendant then asked witness if he thought Sandifer would have carried out the proposition. The witness replied in the affirmative, and defendant said, “ByG—d, I was afraid to trust him. ” The defendant was not under arrest when this conversation occurred. .</p> <p>The character of this last witness, and his reputation in the community for truth and veracity, were assailed by two or three witnesses. It is to his evidence the charge relates upon which the conviction is reversed. The remaining testimony is not essential to an understanding of the case.</p>

<p>1. Evidence.— In a trial for assault with intent to murder, the defense proposed to introduce the county attorney for the purpose of proving that an indictment had been found against the prosecuting witness for assault to murder the defendant, and also proposed to introduce the indictment for the same purpose; to which the State objected, and the objections were sustained. Held, that the court did not err in this ruling.</p> <p>3. Juey Law—Case Stated.—The defense complained that the sheriff was present in the jury room during the deliberations of the jury, and when a juror proposed to return to the court and report disagreement, he advised against such proceeding and said that the court would not yet discharge the jury. The trial court explains the bill of exceptions to the effect that the sheriff heard nothing said in the jury room except the proposition to report a disagreement, and only said that the court would not discharge the jury after so short a deliberation. Held, that no prejudice to appellant is apparent; but note the suggestions of this court concerning the presence of sheriffs during the deliberation of juries.</p>

<p>Theft—Charge of the Court.—A conviction for theft of certain oxen was had upon evidence from which the jury might have inferred that, though the defendant killed the oxen without their owner’s consent, and afterwards skinned them and appropriated the hides, yet that he killed them because they were depredating on his crop, and with no intent to appropriate them or any part of them. Held, that the trial court should have distinctly instructed the jury that, in case they so found the facts to be, the defendant was not guilty of theft of the oxen. It was not sufficient to instruct that such a state of facts would warrant a conviction for the misdemeanor of killing live stock without the owner’s consent, etc.</p>

<p>1. Joinder of Offenses—Duty of State to Elect Between Counts. When an indictment contains more counts than onej and they charge distinct felonies, it is the right of the defendant, as soon as the prosecution has developed its proof, to require the State to elect on which count a conviction will be sought. • The election should, as a general rule, be made before the defendant enters upon his evidence.</p> <p>2. Same—Principals and Accomplices.— The first count of an indictment for the murder of one S. charged the defendant as a principal offender, and the second charged that one P. was the princial offender and the defendant an accomplice. When the state closed its evidence in chief, the defense moved that the prosecution be required to elect between the counts. In view of the rule that a party indicted as a principal cannot be convicted as an accomplice, and vice versa, as well as on account of differences in the rules of evidence applicable to such diverse prosecutions, it is held that the motion should have been sustained.</p> <p>3. Same—Murder.—The state was allbwed, over objection, to prove certain acts and declarations of said P., done and made subsequent to the homicide, and when the defendant was not present; and the defendant was found guilty of murder in the first degree “ as principal.” JBeldt that, as such acts and declarations of P. were not competent evidence under the count which charged the defendant as a principal offender, their admission may have been prejudicial to hintj and therefore was material error.</p> <p>4, OtROüM'STANTlA,L Evidence—In cases wholly dependent on circumstantial evidence no definite line of demarcation between proximate and remote facts can be drawn, and the criterion of their competency is merely whether they tend to cast any light, however feeble, upon the subject of the inquiry. See the facts and the opinion in this case in illustration of the latitude allowable in such cases.</p> <p>6. Evidence of Deceased Witness.—Whatever the former rule may have been, it is now settled that, to reproduce the testimony given at a former trial by a witness who has since died, the person called to prove it may state its substance, if unable to repeat its precise language.</p> <p>C. Confession of a Confederate.—■ In the trial of a defendant on an indictment which charges him as an accomplice, it is competent for the state to prove confessions of the principal offender, for the sole purpose of establishing the latter’s guilt; but the jury should be instructed that the confession is not evidence against the defendant for any other purpose.</p>

<p>1. New Trial.— By the Code of Procedure, article 777, all motions for new trials in criminal cases are subjected to the regulations which govern such motions in civil suits. Those regulations are weE established and defined, and permit a new trial on account of newly-discovered evidence only when necessary to the ends of justice, and require düigence on the part of the applicant, and that the evidence be material and not merely cumulative. No indulgence is accorded to the negligent, and applications founded on sEght circumstances wiE be promptly overruled. See the opinion in extenso on this subject.</p> <p>S. Same—Practice.— The Code of Procedure, article 779, enacts that a new trial must be applied for within two days after the conviction, but provides that “for good cause shown ” in a case of felony the trial court may allow the application to be made at any time before the close of the term. This in effect confides to the judicial discretion of the trial court the determination of applications made after the expiration of two days; and therefore the exercise of that discretion will not be revised on appeal unless it has been abused to the appellant’s prejudice.</p> <p>3. Same—Case Stated.—Nearly a month after the appellant was convicted of burglary, he presented to the court below an application for a new trial based on newly-discovered evidence contradictory of the injured party’s denial that ajjpellant was his domestic servant. The trial court refused to allow the application to be filed, but the record shows that its merits were considered and passed upon, and nothing indicates an abuse of its discretion by the trial court. Held, that no error in the action of the court below is made apparent.</p>

<p>Appeal from the County Court of Walker. Tried below before the Hon. J. M. Smither, County Judge.</p> <p>The opinion sufficiently discloses the case.</p>

<p>1. New Trial—Practice.— By the Revised Code of Procedure, article 781, the State is now enabled to take issue on the causes assigned for a new trial by the defense, and in determining the issue the trial judge is required to hear evidence “ by affidavit or otherwise; ” and this authorizes him to receive oral proof.</p> <p>3. Newly-Discovered Evidence — Diligence.— Want of diligence in the discovery of evidence by the defendant is not excused on account of his confinement in jail, unless it be further shown that he had no one outside to render him the necessary assistance.</p> <p>3. New Trial.— By the Code of Procedure, article 777, new trials in felony cases are positively interdicted for any cause other than those specified in the same article. Surprise occasioned by the testimony of a witness is not among the causes specified, and therefore is not cause for a new trial.</p> <p>4. Surprise resulting from unexpected testimony may, notwithstanding the trial is in progress, be cause for the continuance of the case or a postponement of the trial, provided the motion therefor is opportunely interposed.</p>

<p>Appeal from the District Court of Walker. Tried below before the Hon. W. A. Wood.</p> <p>The indictment charged that the appellant, in Walker county, on the 5th day of January, 1880, had in his “ possession a mould adapted for making coin, with the intention of committing the offense of counterfeiting, and with the intent to use said mould for the purpose of counterfeiting the silver coin of the United States, of the value and denominations of one dollar; contrary,” etc.</p> <p>His trial resulted in conviction, and the punishment assessed was confinement in the penitentiary for the period of two years.</p> <p>J. M. Parish testified for the State that, in January, 1880, he was deputy sheriff of Walker county. The justice of the peace, Mr. Williams, placed a search warrant in his hands and directed him to search the room and person of the accused. The witness found the accused in the yard of the penitentiary building, and upon searching his person found in the inside pocket of his vest a mould made of plaster-of-Paris. The mould was closed when the witness first got possession of it, and was opened the next day on the examining trial held by Justice Williams. The witness opened it with a knife. It had in it a legal tender silver coin dollar of the United States. A white mould, fitting closely around a silver dollar when closed, each half of the mould having a distinct impression -of letters, figures, lines, etc., corresponding with those on the sides of a United States legal tender dollar, was here shown to the witness, and identified by him as the mould which he found on the person of the defendant. After taking this mould from the person of the defendant, the witness went to the room of defendant and broke open his trunk, which was locked, finding in it the piece of metal exhibited. It is a piece of very fine grained Babbitt’s metal. They also found in the trunk the paper now shown him., which was a formula or recipe.</p> <p>The witness had marked this paper “ A., Jan’y 7,” for the purpose of identifying it in the examining court. The witness also found in the trank the packages now exhibited to him; that marked B. containing a small quantity of white powder; that marked 0. containing a small quantity of white powder, and that marked D. containing six coins. The witness had seen some “right good coins made of Babbitt’s metal. Such metal was much used about the penitentiary.”</p> <p>On cross-examination the witness stated that, when he told the accused that he was going to search his trunk, the accused did not object. The witness had never seen counterfeiting done, did not know that money could be made with the moulds taken from the person of the accused, but believed that it could.</p> <p>L. P. Davidson, for the State, testified that in January, 1880, he was a druggist and chemist, doing business in Huntsville, Walker county, Texas. Two or three days before the examining trial of the accused, he came to the witness’ drug-store and purchased four and one-half ounces of plaster-of-Paris. The mould identified by Parish being exhibited to the witness, he testified that it was made of plaster-of-Paris. The amount of plaster-of-Paris sold by witness to accused was amply sufficient to make a mould of the size of the one exhibited. The package marked B. was then handed to witness, and he pronounced the contents plaster-of-Paris, and was certain that the paper enclosing it was the same paper in which he wrapped the plaster-of-Paris he sold the accused. The paper marked 0. was handed witness and he stated that he believed the contents to be sulphate of potash. Sulphate of potash is used in making Dover’s powders, but witness did not know its mechanical uses. Plaster-of-Paris is used generally for making moulds.</p> <p>J. F. West testified for the State that he was an engineer by profession. The piece of metal identified by Parish was handed him and he pronounced it Babbitt’s metal. The witness was present when the mould was taken from the person of accused, but was not present when his trunk was opened. The accused was a night-guard in the east building of the penitentiary, and had charge of Little and Curtis, who were under sentence for counterfeiting. He had charge also of a convict named Weaver, who was a cell-mate of one Hale, convicted of counterfeiting. The witness was under-keeper at the time, and had charge of the discipline of the prison.</p> <p>Cross-examined, the witness said that he had taken some powder like that exhibited in court from Little’s coat. A few days before that the defendant asked permission to have a convict open his trunk, stating that he had lost his keys.</p> <p>Haywood Brahan testified for the State that in January, 1880, the defendant was night-watch in charge of the east building of the penitentiary, and as such had opportunities to confer with convicts who could make moulds like that exhibited in court. The witness was not present when the mould was found on the defendant’s person, but was present when the trunk was opened by Deputy Sheriff Parish. The trunk had a spring lock, and a key was in it, but the lock had to be taken off to get the trunk open. ' The metal shown witness, the same identified by Parish, is Babbitt’s metal. The difference between this and block tin is that the metal is easier worked. The witness had heard that Babbitt’s metal is used in counterfeiting, but did not know of his own knowledge. There are many convicts in the penitentiary for counterfeiting, and some for having in their possession moulds for counterfeiting. As night-guard, the defendant had access to all of the convicts in the east building every night.</p> <p>Cross-examined, the witness said there was one convict in the penitentiary sent for having moulds in his posses- . sion, who was ‘ ‘ knocking about on the inside of the walls. ”</p> <p>T. J. Goree, for the State, testified that he .was, and had been for several years, superintendent of the Texas State Penitentiary. The defendant had been a night-guard in charge of the east building for several months next preceding the 6th day of January, 1880. During the defendant’s service there were in the east building three convicts sent for counterfeiting and dealing in counterfeit money. While defendant was night-guard, he was the only citizen who had access to the convicts in the east building from dark until daylight. The paper marked “ A. Jan’y 1 ” was shown to witness, and he testified that he believed he knew in whose handwriting it was written. All letters to and from convicts were required to pass through the witness’ hands. The witness had never seen Frank Weaver write, but from seeing letters purporting to have been written by him in reply to letters received by him, and from notes to the witness purporting to have been written by him and afterwards spoken of by him (Weaver) as notes he had written, the witness was satisfied that this paper marked “A., Jan’y J ” was in Weaver’s handwriting. It is signed “H. & W. & Go.” Just before the arrest of the accused (Jan’y 6, 1880), and for some time before that date, Weaver had been a cell-mate of a man named Hale, who was confined for counterfeiting. On Monday, January 5, 1880, before the arrest of the defendant, and while in charge of the east building, some convicts escaped from then cells in that building, and among the number were Weaver and Hall. The convicts were recaptured.</p> <p>After the escape of Weaver, a letter was found addressed to the witness purporting to have been written by Weaver. Weaver afterwards spoke to the witness about the contents of this letter, and spoke of it as having been written by him. That letter and the paper marked “A., Jan’y 1 ” are in the same handwriting.</p>

<p>1. Declarations Between Confederates—Practice.— No inflexible rule requires more than a prima facie showing of conspiracy between the defendant and a confederate, in order to make declarations of the latter evidence against the former. Nor is it absolutely requisite that the showing of the conspiracy shall precede the proof of the declarations, though that is the usual and preferable course of procedure. Such matters are largely subjected to the judicial discretion of the trial judge.</p> <p>2. Same.— Every act and declaration of each conspirator, pending and pursuant to the concerted plan and object, is the act and declaration of all and each of them, and it is therefore original evidence against any one of them, irrespective of the time at which he engaged in the conspiracy. Otherwise with regard to declarations made subsequent to the consummation of the conspiracy and not acquiesced in by the other confederates.</p> <p>3. ;Sahe.—In a trial for murder the State was allowed, over objection, to elicit from a witness what he was told by a confederate of the defendant, in the latter’s absence and after the murder, about concealing the gun it was committed with. Held, not proper evidence to inculpate the defendant, but, being obviously of no significance in the present case, it was of no materiality. If the object of the proof had been merely to trace up and identify the gun, it would, it seems, have been legitimate.</p> <p>4. Evidence of Deceased Witness.—A person called to prove the testimony given at a former trial by a witness who has since died may state its substance, if unable to repeat its words.</p> <p>5. The “ Rule.”— The enforcement of the rule to sequester the witnesses rests in the discretion of the trial judge, and his action will not be revised on appeal unless abuse of that discretion to the appellant’s prejudice be made apparent.</p> <p>6. Accomplice Testimony.—Note in the opinion the charge to the jury ' on the subject of the testimony of an accomplice and its corroboration, and which is sustained by this court.</p>

Tried below before the Hon. J. Abbott. The indictment charged the theft, from Philip Welsh, of two horses, in Johnson county, on the 20th day of September, 1879. Trial resulted in conviction, and five years’ confinement in the penitentiary was the penalty assessed by the jury.

<p>Appeal from the District Court of De Witt. Tried below before the Hon. H. C. Pleasants.</p> <p>The indictment charged the appellant with the murder of one James Benton, in De Witt county, on the 15th day of October, 1875.</p> <p>Mr. bToltke testified for the State that he lived in De Witt county, about three quarters of a mile from the camp of Benton, the deceased. About 8 o’clock, A. M., on the morning after the killing, James Montgomery came to the house of witness and told him that deceased had been killed, and the two rode down to the camp to see the body. The body was lying on a pallet made of saddle blankets, with the feet towards and near the campfire. The bed-clothing was burned as high up as the deceased’s hips. There were two wounds in the head which seemed to have entered from behind, and these wounds were powder-burned. One of these shots passed entirely through the head. The witness found neither bullets nor cartridge shells anywhere about the camp. There was another pallet at the camp which seemed to have been occupied by some other person during the night. The witness saw no, person about the camp while he was there other than Montgomery, who went with him. The camp was in the forks of Edwards’ and Clear creeks, about 30 or 40 steps from the banks of the former, and about 300 yards from the banks of the latter. The witness was at home on the night of the killing. He did not know where the defendant lived at that time.</p> <p>On cross-examination, the witness stated that he examined for horse-tracks, but found none nearer the body than 15 or 20 steps. Grass was growing about the camp where the body lay. The camp-fire was burning a little, and the witness thought that the deceased had struggled into the fire after being shot, and by that means set the bedding and his clothes on fire. There was nothing over the body, and nothing to indicate that any one else had been in the camp the night before, except that the pallet appeared to have been occupied by two persons. The deceased had no shepherd. The witness saw no arms about the camp,— nothing but a few cooking utensils, some provisions and a few blankets.</p> <p>The witness had just moved on the day of the night of the killing, and slept in his house for the first time on that night. Robert Riddle lived near the witness on the same tract of land. The witness did not see him on that day nor the next, nor does he recollect of seeing W. C. Racquet on that or the next day. Riddle’s house could not be seen from that of witness, and Racquet and Riddle might have been about the latter’s house without the witness knowing it. The witness saw no one going to Riddle’s on the day after the killing. He knew nothing of a herd of cattle being camped in the vicinity.</p> <p>J. Oasprizk testified for the State that he lived between one quarter and a half a mile from the camp of deceased when the lolling occurred. Retween 9 and 10 o’clock he heard four shots from the direction of the camp, and supposed that deceased was firing to frighten something away. The first two shots were fired in quick succession and the other two after a lapse of a few minutes. The deceased, who had been with his sheep, came to witness’ field about an hour before sun-set on the evening before he was killed, and talked awhile. Next morning about 8 or 9 o’clock Mr. Montgomery came to witness’ house and asked where the deceased’s camp was. Witness showed him and he went in that direction. After getting near the camp he called back to witness to join him quick, saying that the deceased was dead. The wit-' ness joined him, and both, though frightened, went up to examine the body, but did not touch it. The witness went back to his work, but “kept his eye” on the camp, and saw no one go there until the justice of the peace came. The witness saw no one about the camp the evening before. Did not know defendant at the time nor where he lived.</p> <p>On cross-examination the witness stated that he had lived near the camp of the deceased about two months, and was on friendly terms with him. The deceased sometimes visited the witness’ house. He had no shepherd at the time of the killing, nor did the witness know that he had ever had one. The shots spoken of by the witness were not fired before 9 o’clock. The last two shots were not so loud as the first two but all sounded like pistol shots. The witness could not say that all of the four shots were fired from the same pistol. Besides his son, the witness had two men living with him at the time of the homicide. One of these men left a day or two after the killing, and the other five or six days after. The witness had not finished his work, but had told them he had nothing further for them to do. One of these men went to the Coleto and the other to San Antonio.</p> <p>The deceased told the witness, on the evening before he was killed, that he owed James Montgomery about $250, and would try to pay him the next day. He told witness at the same túne that he intended to go to Cuero that day, but had changed his mind. The witness occupied the evening before the killing in plowing, and saw no one but his workmen and deceased. The deceased told the witness that he had had a “falling out ” with Eobert Eiddle at the old place (Eiddle’s house), and that was the reason of his leaving Eiddle’s and moving to this camp. He had been in the camp three or four weeks. The witness did not see Eiddle on the day before or on the day after the killing. Eiddle has since been killed. The witness observed a herd of cattle in. the vicinity on the morning after the killing, and saw three men, whom he did not know, ride down to the body from the herd, and ride off before witness, who desired to speak to them, could do so. The witness did not know the defendant or Wm. Bacquet at the time of the killing. He knows the latter now, but does not know whether or not Bacquet has been paid to testify in this case.</p> <p>William C. Bacquet, a witness for the State, testified that the defendant told him on the morning after the killing, that he, the defendant, had killed the deceased on the night before. He describes the circumstances of the confession substantially as follows: The witness was herding his brother’s sheep on the prairie the morning after the killing. Eobért Eiddle came to him, and, after talking a while, and seeing that his sheep were going to shade, he invited Eiddle to go with him to his camp for dinner. The two started, and en route met the witness’ brother and wife going from Cuero to Yorktown. Both parties stopped and talked awhile, and the witness and Eiddle then started again to the camp. After they had proceeded some distance they heard some one traveling through the bushes, and soon discovered that it was the defendant. He joined the witness and Eiddle, and as he rode up, he said to Eiddle, “ that man (or fellow) is in town.” The defendant and Eiddle looked at each other for a minute and then the defendant said: “Well, by G—d, I might as well tell you, I killed Benton last night.” He, defendant, then said that that morning, while he was standing in a store-door in Yorktown, he saw Van Werk, a constable, coming towards him from across the street, and he thought the constable’s intention was to arrest him. He said that he then got on his horse and rode towards G-ohmert’s tin-shop, across a creek, but saw someone standing in the tin-shop door who looked so much like the deceased that he turned and rode rapidly out of town to Mrs. Edwards’, where he changed horses, and from there rode on to where he met the witness and Biddle. He then described to the witness and Biddle the circumstances of the killing. He said that he went to the camp of the deceased about sundown on the evening before, and told him, that he had come to talk to him about an indictment against his, defendant’s, brother Amos, for carrying a pistol or stealing a cow. That he got down, tied his horse near by, had some conversation which resulted in some kind of miderstanding about the indictment, and then they ate supper together, and that no enmity was displayed by either during this time. That after supper, they sat around the fire and talked, and that he noticed that deceased, during all this time, had either a knife or axe in his hand. That he finally told the deceased that he was afraid to stay at home or at Biddle’s that night, as he believed the sheriff was after him, and asked the deceased’s permission to stay in his camp; to which the deceased consented, and they made their pallets down by the fire, and soon the deceased rolled over and went to sleep. That he then shot him through the back of the head. Biddle asked the defendant, at this point of the narrative, what the deceased did, and what he, defendant,did next. He said that deceased made a kind of gurgling noise in his throat, and that he, defendant, raised up on one elbow and knee, and fired another shot through the deceased’s head. That when he fired this second shot his horse broke loose, and that he followed and caught him in a few minutes, mounted, rode back, and fired two more shots from his horse. That he then threw quilts over the body and set them on fire. That he then rode into Edwards’ creek, rode down the bed of it to the mouth, then down Clear creek until he came to a point opposite Biddle’s house, where he took a trail, and went up to the house, unsaddled his horse, and went to. bed in a back room, where he stayed until morning, and then went to Torktown.</p> <p>The witness testified that when this statement was concluded, the three started to Biddle’s house, and when they reached a hollow in Anderson’s creek, one of the two asked witness to ride to the deceased’s camp and see if he was still there. The witness rode to a point within one hundred yards of the camp, from where he heard voices at the camp, and then rode off, going towards Biddle’s ranch. In a flat, near Noltke’s house, he met Elias Dubose and Biddle, and told them of the voices he heard at the camp, and that he supposed the deceased must be there. From this flat, Elias Dubose, Biddle and the witness rode up to Biddle’s house and there they met the defendant. The defendant then saddled a dun mare that had been sold but not yet delivered to witness’ brother by Biddle, and rode off in a northerly direction, saying that he was going to some of his relatives up the river. When he started he asked of and received from Biddle a roll of money.</p> <p>The witness did not see Ned Edwards on that day, but on the next Biddle told him that Edwards had gone up the river after the defendant. On this last mentioned day the witness met defendant and Edwards about a quarter or half mile from McFarland’s house. From this point the three went to McFarland’s house and sat on the fence awhile, talking of the killing of the deceased. Within a half hour Edwards and defendant rode off. During the conversation the defendant told witness to remember what he had told the day before. When the defendant made his confession the, day before, he told the witness that if he told, he, defendant, would “get him,” and further said that if the deceased was not dead, be, defendant, would kill him yet. The defendant left Biddle’s house about mid-day, going up the river, and Biddle said something about sending for him. The witness did not know the conditions upon which the defendant was to come back, but inferred that he was to return on ascertaining that the deceased was dead. The defendant had no regular place of abode, and witness thinks was not on good terms with the deceased. The witness saw him in the evening before the killing, riding towards Biddle’s house, and saw that he and Biddle met some three or four miles from Biddle’s house.</p> <p>On cross-examination, the witness said that his sheep-camp was about three miles from the camp of deceased, and but little farther from Biddle’s house. Himself and Biddle were on friendly but not intimate terms when they met on the prairie the morning after the killing. They first talked about sheep, and then about the deceased, and Biddle said that, as he did not like the deceased much, he was glad that deceased was going to settle up his debts and leave the country. From here the witness reiterates his testimony in chief, and proceeds to state in substance that himself and deceased occupied different cabins on Biddle’s place in 1874, and had been on good terms, until they quarreled about a joke. The deceased pushed the witness so violently against a buggy wheel during that quarrel, that his neck was badly hurt and himself rendered insensible for some time. The two did not speak for some days, nor until the deceased apologized, saying that he “ was in fun.” The witness could not remember whether he slept in his camp or on McFarland’s porch the night that the deceased was killed, nor did he remember what kind of a night it was. He stayed in the neighborhood, tending his brother’s sheep, until the 17th of ¡November following the killing, and then went to Gonzales county, where he stayed two years. In 1811 he returned to De Witt county and assisted his brother with his sheep, until he went to farm on Crosson’s place. He left the county because, one night when he was returning from Shiloh church, he was met in the road by eight men who told him that he knew too much and must leave the county in three days. He could not say whether they wanted him to leave on account of what he knew about this murder, or on account of what he knew about cattle-stealing. He saw the defendant leave Shiloh church that night with some ladies, and did not think he was one of the eight men.</p> <p>The witness admitted having told Crosson of defendant’s confession, or at least part of it, but denied that he had ever told Crosson that he was present and "saw the killing. He did not think he had seen Riddle to speak to him for two weeks before the killing, but saw him at a distance on the evening of the killing, about 4 o’clock, traveling towards Torktown. He did not recollect when he last saw deceased to speak to him, before the killing, but saw him at a distance in the evening before he was killed. He had been in deceased’s camp twice, but deceased was not there on either occasion. The witness stated that he had received no money to testify in this case, but that deceased’s brother paid his expenses at the previous term of the court.</p> <p>James Montgomery, for the State, testified that on the morning after the killing he went to Mr. Casprizk’s house, en route to the camp of the deceased, and inquired of Casprizk the locality of the camp. Receiving directions he rode to the camp and found the deceased dead. He called Casprizk and requested him to stay at the camp with the body until he could bring help. The witness got Mr. ¡Noltke and they returned to the camp, meeting some Germans on the way, by whom he sent word to the coroner at Yorktown. This witness described the condition of the body as it was described by the witness Noltke. There were horse-tracks around, though but one horse appeared to have been tied near the camp. No trail was found by the witness to or from the body. A pistol and knife were found by witness under the head of the deceased; the pistol was cocked and was rusty, as though it had not been fired in a long time. On his way to the camp the witness noticed some men, mostly Mexicans, with a herd of cattle. The witness had an appointment with deceased, to receive some money due him, on that morning, and it was to fulfill this appointment that he went to the camp.</p> <p>The cross-examination did not change this evidence in any respect, and added little or nothing to it. The appointment to pay the witness at his camp what was due him was made by deceased five or six days before. No one was present at the time, nor had the witness mentioned it to anyone. The witness took charge of the deceased’s effects, but found no money, checks or drafts among them.</p> <p>L. A. Preston testified, for the State, that he knew a certain dun or “ clay-bank ” mare that had belonged to Riddle. She passed the witness’ place with a rider whom he did not know, on the day after the killing, going towards Gonzales county, and was traveling a trail that led in the direction of Louis Dubose’s (defendant’s uncle) place, in Gonzales county. This was a private trail, used by the families of the Duboses, D. Hunter and Robert Riddle. The witness saw the mare and rider next day, retracing the course of the day before, but did not then recognjze the rider.</p> <p>Cross-examined, the witness stated that he did not recognize the rider on either of the two occasions testified to, but thought he was Riddle from the fact that he rode the Riddle mare.</p> <p>Ned Edwards was introduced by the State, and testified, hi substance, that the defendant came to his house about 9 o’clock on the day after the killing, and that he went to Yorktown with the defendant, and there lost sight of him and saw no more of him that day. The witness was present at the inquest, but did not see the defendant there. After the inquest, the witness went to Riddle’s, and from there with Eiddle went to Louis Dubose’s'house, in Gonzales county, that.night. Next morning they met defendant at Louis Dubose’s, and the three returned, the defendant riding a dun mare which Eiddle had sold to the witness Bacquet’s brother. The witness did not know the whereabouts of defendant on the night of the killing, but knows that he was not at Mrs. E. Edwards’ house. Mrs. Harris, Mary Edwards, now Mrs. Dubose, Alice Edwards, Mrs. Edwards and Elias Dubose were there. Eiddle, defendant and deceased had a difficulty some time before the killing, and the latter had had Eiddle and defendant indicted for it. The defendant told the witness that if Benton did have him indicted, he would kill him. Defendant told witness this a month or two before the killing, on Cabaro creek. The witness saw Eiddle and defendant talking together at Louis Dubose’s on Sunday morning next after the Friday night of the killing, but heard nothing they said. As he and defendant exchanged horses frequently on their' ride back from Gonzales county, he did not know which was riding the dun mare when they passed Preston’s. Defendant told witness at the last term of court not to come to court to testify, in order to enable him to continue his case. Witness did come and answered to his name. Further than this the defendant had said nothing to him about testifying.</p> <p>On cross-examination the witness admitted that, on the defendant’s application for bail, he testified that the defendant was at Mrs. Edwards’ house on the night of the killing and stayed there until 10 or 11 o’clock next day. He admitted that he testified at the same time that he did not go to Louis Dubose’s in Gonzales county on the day or night after the killing. He testified then, also, that he did not see Wm. 0. Bacquet; all of which was the reverse of what he states on this trial under oath. He was under oath at the habeas corpus trial. The reason he testified falsely in the first instance was that he was afraid the defendant would “ put him out of the way.” The witness had talked with Mr. Hunter about his former testimony and asked him what to do, and was advised by Hunter to tell the truth. The defendant was the witness’ brother-in-law when the latter testified under habeas corpus. His wife, the witness’ sister, has since died. Biddle was married to the defendant’s sister at the time of the killing.</p> <p>The State here introduced two indictments in evidence, one charging Biddle, Elias Dubose and defendant with assault with intent to murder the deceased, and the other charging Amos Dubose with the theft of a cow, the property of the deceased. The State closed.</p> <p>G. W. Crosson, for the defense, testified that in December, 1877, W. 0. Bacquet approached him in Cuero and asked him for employment. The witness employed him, and took him home in his ambulance that night. En route they discussed a murder trial that was then in progress in the District Court, and Bacquet told him that he knew of a “worse murder than that,” and then detailed the killing of Benton very much as he detailed it in evidence on this trial, but did not at that time tell the witness who did the killing. At the supper-table that same night, Bacquet repeated the narrative of Benton’s murder in the presence of the witness’ family. When he first gave the witness the particulars of the killing, the witness asked him “how he knew of it?” and he replied that he saw it and was near enough to hear the shots, and that the man who did the killing, immediately after killing the deceased, started to kill him, but that he begged off, and defendant threatened to kill him if he told of the killing.</p> <p>Cross-examined, the witness said that he told Mr! Creswell that Bacquet knew of a wilful murder, and that it ought to be investigated. He thinks that he also told Creswell that Bacquet was present when Benton was killed. He denied having told Creswell that Bacquet said that defendant confessed the murder to him.</p> <p>The substance of the evidence of Elias Dubose, for the defense, was that the defendant stayed all the night of the killing at the house of Mrs. Elizabeth Edwards. There were present at Mrs. Edwards’ house during that night, the witness, Miss Mary Edwards, Alice Edwards, after-wards wife of witness, now dead, the widow Harris, afterwards defendant’s wife, now dead, ¡Ned Edwards, witness and defendant. Mary Edwards, now Mary Dubose, was sick in bed at the time of this trial, and Mrs. Edwards insane. The witness went to bed at 10 or 11 o’clock, and defendant was then there. He was there early next morning, and witness thinks all night.</p> <p>Cross-examined, the witness said that he hunted horses next day after the killing until late evening, and with his wife then went to Riddle’s. He did not see Riddle until he got to his house, nor did he see Bacquet for three or four weeks afterwards. The defendant was at Mrs. E. Edwards’ on Friday evening (the evening of the night on which deceased was killed), and, on Saturday evening, when witness started to Riddle’s. ¡Ned Edwards told the defendant of the killing on Saturday evening, and the witness thinks that ¡Ned Edwards went to Torktown that day, and alone. The witness knew the deceased well, .and they were friendly, and took supper together at Mrs. Edwards’, where the witness lived, a few days before the killing. There was an indictment against the witness for .assault to murder the deceased, but the witness did not know of it until after the death of the deceased. Witness had never been arrested and had given no bond, but, as he was told by the sheriff to do, he went to court. He thinks the indictment has been dismissed. He denied that deceased had ever had a difficulty with him, or with Riddle and defendant, in his presence.</p> <p>Mrs. Robert Riddle testified for the defense that she was at home on the night of the killing, and heard shots in the direction of Benton’s camp, about 9 o’clock. Her husband came home about 9 o’clock that night, after the shooting, and told her he had been on “’ Sandies.” She was at home all of the next day. Ho one came to the house until about dark, when Elias Dubose and his wife came. W. 0. Bacquet was not at the house the day after the killing, nor did she see him that day.</p> <p>Cross-examined, she said that her husband, Robert Riddle, having come home on the night before and after she heard the firing, remained at home all next day, Saturday, Saturday night, and Sunday. She did not see the defendant for two weeks after the killing, nor had she seen him in two weeks before, as he seldom came to her house. She is a sister of defendant.</p> <p>Hon. H. 0. Pleasants, trial judge, testified for the defense that the evidence of Mrs. Harris, nee Mary Edwards, given at the trial for bail under writ of habeas corpus, 'was corroborative of the testimony of Elias Dubose on this trial. Hed Edwards, on the trial for bail, contradicted the witness Bacquet, and testified then as he said on the present trial he had testified.</p> <p>The defense introduced the minutes of the court, and showed thereby that at the December term, 1878, the two indictments offered in evidence by the State were dismissed.</p> <p>In rebuttal Henry Creswell testified that, a short time before the indictment of defendant for the murder of deceased, G-. W. Crosson told him- that W. 0. Bacquet had told him, Crosson, that Bacquet knew of a murder, and that it ought to be inquired into. He further told the witness that Bacquet told him, Crosson, that defendant had told him, Bacquet, that he, defendant, killed the deceased. Crosson did not tell witness that Bacquet said he was present and saw the killing.</p> <p>On cross-examination, the witness thought but was not certain that Crosson told him that Bacquet said that defendant confessed to him, Bacquet, that he, defendant, killed the deceased. He is certain, however, that Crosson did not tell him that Bacquet said he was present and saw the killing.</p> <p>It appears by a bill of exceptions that the defense, in connection with Crosson’s testimony, proposed to introduce John Waters as a witness, and to prove by him that the deceased Benton, and Bacquet, the main witness for the State, were at enmity and had had a serious difficulty; that Bacquet habitually carried arms for Benton and threatened to take his life.</p> <p>The jury found the appellant guilty of murder in the first degree, and assessed a life-term in the penitentiary as his punishment.</p>

<p>Appeal from the District Court of McLennan. Tried below before the Hon. L. 0. Alexander.</p> <p>The present appeal is the third taken by the appellant from convictions for murder in the second degree, with a term of five years in the penitentiary assessed as the punishment by each of the verdicts. In the 7th and the 9th volumes of these Reports, at pages 570 and 299, respectively, the case will be found as reported upon the former adjudications in this court; and in the former of these volumes will be found a condensed statement of the evidence material to the case as then presented.</p> <p>The evidence in the present record is more full and elaborate than that brought up in the former ones, especially upon the important physiological questions discussed in the opinion, and a detail of it is now required by the ruling that it is insufficient to establish affirmatively the independent existence of the infant.</p> <p>The indictment was filed May 8,1879, and charged that Sallie Wallace, on the 21st of the preceding March, being big with a female child, “ did bring forth said child alive, of the body of her the said Sallie Wallace, alone and in secret, and, said female child being then and there alive, the said Sallie Wallace, on the said 21st day of March, A. D. 1879, as soon as the said child was born, said child then and there being alive as aforesaid, with force and arms did then and there, in and upon the said female child, unlawfully, wilfully and feloniously, and of her malice aforethought, make an assault; and that the said Sallie Wallace, with both her hands about and around the neck of her the said female child, then and there a strong domestic string, of no value, unlawfully, wilfully and feloniously, and of her malice aforethought, did fix, tie and fasten; and that the said Sallie, with the domestic string aforesaid, fixed, tied and fastened as aforesaid, her the said female child unlawfully, wilfully, feloniously and of her malice aforethought, did choke, suffocate and strangle; of which choking, suffocating and strangling she the said female child then and there instantly died; and so the grand jurors aforesaid, on their oath aforesaid, do say that the said Sallie Wallace her said female child in manner and form aforesaid unlawfully, wilfully, feloniously and of her malice aforethought did kill and murder; contrary,” etc. The trial resulting in the present appeal was had on December 21, 1880, and the record on the appeal was sent to thp Galveston branch of this court at the instance of the counsel for the State.</p> <p>The first witness examined by the prosecution in the court below was Elizabeth Williams, a colored woman, who, with her husband Ctesar Williams, lived at Robinsonville, a village in McLennan county, about six miles south of Waco. She testified that one Thursday evening on or about March 20, 1879, the defendant, a colored woman, who was then a stranger to witness, came to her house, walking and barefooted. She told witness that her name was Sallie Wallace, and stayed for supper, but ate little. At bed-time she said she believed she would spend the night with witness, who arranged a bed for her, and she retired. When, about daylight the next morning, witness called to the children, the defendant answered and said she would get up and go over to Mrs. Weekly’s, a neighbor. She went out but returned after a while. At breakfast, about sunrise, she took a little coffee, but would eat nothing else. Near the bed occupied by the defendant, witness noticed a spot of clotted blood, and had defendant to clean it up. After breakfast, witness’ husband went off to his day’s work, and witness went to the cow-pen, accompanied by the defendant. When witness had about finished milking, the defendant said she believed she would go down to a branch which was about a hundred yards distant, and look for a hen’s nest Mrs. Weekly had given her if she could find it. She left witness, who, in about half an hour, saw her head above some bushes near the branch. This was the last seen of the defendant by witness until some three months afterwards, when witness was called to testify at the first trial of this case. The defendant, when at witness’ house, had a full breast and belly, showing every indication of pregnancy. At the cow-pen her appearance indicated the early stages of labor, as the upper portion of her belly seemed to he sinking and the lower protruding. Witness told her she was in no fix to be away from her mother, and ought to go home at once; to which' she replied that she was going home, and that she supposed all young women had to get in that condition at some period of their lives. When-witness returned from the cow-pen to the house she found that the bed where defendant slept was bloody, as well as the floor near it. Both of the sheets were stained with blood. The next day, about two or three o’clock, witness and Fannie Mucker went down upon the branch, and at the spot where witness had seen the defendant’s head ■they discovered the body of a fat, plump, full-termed, little colored child. They raised an alarm which brought .nearly everybody in the village down to see the child. It lay in a little scratched-out place, and some leaves and sand had been thrown around it. It was lying on its back, with its eyes slightly open, and something had eaten a portion of its cheek. It was a large, mature, well developed child, with a full head of hair and well matured finger nails. Around its neck was tied a strong string made out of a piece of domestic. The string had been passed twice round the neck, and tied in a knot behind the neck. Close by lay the afterbirth, and also an apron which the defendant had on at witness’ house.</p> <p>Caesar Williams, for the State, corroborated the testimony of his wife in many particulars. He and many others viewed the body as it lay where it had been found, and he gave a very similar description of it to that given by his wife. He added that the string was very tight around the child’s neck, and that the apron found near it, and previously worn by the defendant, was made out of blue checked domestic. He covered the body with a tub, and went to Waco for the coroner, who came out the next day and held an inquest.</p> <p>Albert Cole, for the State, testified that he saw the defendant one Friday night in March, 1819, at her mother’s house in McLennan county. She was sick, and witness supposed she had had a child. She had been arrested, and he was employed by a constable to guard her. On the next Thursday night she got away from him and ran off, but was afterwards brought back. It appears by the testimony of this witness that there was a child of the defendant, three or four years old, living at her mother’s.</p> <p>P. Sparks, for the State, testified that he captured the defendant after her escape from Cole, and brought her back to Waco. She did not seem sick when he found her, which appears to have been but a very few days after her escape. Witness had employed the defendant and said she was a good worker. She had supported the child still living at her mother’s, and had taken care of another one which had died of fits.</p> <p>Dr. Tate, .for the State, testified that in March, 1879, the jury of inquest called on him to examine the body of a negro child found near his house in Robinsonville. He cut into the body and took out a piece of the lung about as large as two of his fingers, threw it into a pan of water, and it floated. This being sufficient to satisfy the jury, he made no further examination. The child was evidently a full-termed child, would probably have weighed seven or eight pounds, and had a full head of hair and growth of nails. The test made by the witness, taken with the other evidence at the inquest, satisfied him that the child had breathed, and that the string was tied around its neck after complete birth. There was a domestic string wrapped twice around the child’s neck, and tied tight in a hard knot at the back of the neck; “from which fact,” added the witness, “ it might possibly be concluded that the string was tied after the birth of the head and before the birth of the rest of the body.” The string pressed into the flesh, but witness observed no swelling or congestion of the face. The child was not decomposed, but something had eaten part of the cheek. The string was tied tight enough to have strangled the child, but witness could not say positively whether it was tied on the child before or after complete birth. Witness observed no signs of strangulation, which are swelling of the face and protrusion of the tongue and eyes, but these signs would be less observable in a negro than a white, and less in a child than an adult. The test applied by witness is called the hydrostatic test, and is the best known to medical science in determining whether air has entered the lungs. It is not infallible, there being other conditions which will produce a similar result, such as artificial inflation, emphysema, and putrefaction: Witness noticed no emphysema, and artificial inflation is usually effected- with instruments. There were no signs of the use of instruments in this case. In the absence of indications' to the contrary, the hydrostatic test is almost conclusive that the child had breathed. Witness was confident that this child had breathed either before or after birth, but could not say whether before or after, nor whether the string was tied around its neck before or after its birth. Still-born children always have their eyes closed, and if a child was killed in its mother’s womb, its eyes would be closed at its birth. The color of this child’s lungs was red, and this was an indication of life. If they had no air in them they would have been dark. Lungs will not float unless air had entered into them. Generally the head of a child is born first, and with the face downwards; from which it might in the present case be concluded that the string was tied before the complete birth of the child; but, considering a woman’s pains in such an emergency, it was hardly probable. The interval between the birth of a child’s head and its complete birth is variable from a few seconds to a much longer time.</p> <p>' Dr. J. S. Willis, for the Sígate, testified that he was county physician in March, 1879, and in that capacity went to see the defendant at her mother’s, seven or eight miles from Waco. Defendant bore evidence of recent confinement, and was affected with inflammation of the womb incident to exercise after recent confinement. Witness made a digital examination of the womb, and is positive that she had very lately given birth to a child. This was a-day or two after the dead child was found at Caesar Williams’ house. This concluded the evidence for the State. ■</p> <p>• The defense introduced Dr. Park, who stated that the hydrostatic test is accurately made by putting the whole of the lungs in water, to see if they would float. Next, portions about the size of two fingers are cut from different parts of the lungs, to see if they will float. Then these pieces are cut up, to see if the pieces will float, and whether bubbles rise when they are squeezed under the water. Notice should be taken whether the pieces crepitate when pressed, or even when only sufficient pressure is used to lift them up. If they float and crepitate under these circumstances, the test gives evidence of air in the lungs, and that they have been inflated by breathing. The breathing may have taken place before complete birth, as well as after, and the test is incapable of indicating when the inflation took place. Even when properly applied, the test is not infallible, but it is the best criterion known to the medical profession. If the child breathed before complete birth, and when or even before the head was expelled, the phenomena afforded by the test would be the same as if the breathing had occurred after complete birth. As soon as a child is born, it generally cries, and this is its first act, and one which it cannot accomplish without having air in the lungs by breathing. It can cry before complete birth, with the head only out of the vulva, or even before the expulsion of the head. Instances are recorded where children have cried in the womb, but only when the vagina had been opened by the hand or otherwise. In such a case the lungs of a child, if it were killed before complete birth, would give the same results as if complete birth had preceded death. As a rule, and with the best attention, one child dies in every twenty to twenty-seven births. The fatality is still greater in cases of illegitimacy; the ratio in which is one in fifteen or sixteen. Negroes have children easier than whites, and with less danger to their offspring. In negroes the signs of strangulation are less observable than in whites, and less in children than in adults; but the signs, which are congestion of the head and face and protrusión of the eyes and tongue, are always present in strangulation. As a rule the body of a child follows the birth of its head within two or three minutes, or half an hour, but the witness did not consider a labor of four to six hours a long one. A child is usually born with its face towards the mother’s back, and generally begins to breathe the moment the head is expelled. Taking such a case as Dr. Tate had stated in his testimony, it was the witness’ opinion that the defendant’s child came to its death from strangulation caused by the string around its neck. Women sometimes get through labor with but on e pain, and a negress would be more likely to do so than a white woman, particularly if she had previously had children. In the witness’ experience he had known but one such case.</p> <p>Dr. Manning, for the defense, testified that he had heard a child cry in its mother’s womb before even the head had been expelled, and though no hand, instrument, or other appliance had previously been used in disturbing the parts or aiding the birth. He had experienced but one case of the kind, but others are recorded in medical words.</p> <p>0. Stubblefield; for the defense, testified that the defendant had been in his employ prior to about March 20,1819, when she came to him and said she was. pregnant and would soon be confined, and that he would have to get another servant. Thursday morning, the day before he settled with her, she was occupying a room with one Emma Davis, a negro woman who was subject to fits. Witness, hearing a noise before day, went into the room and found Emma in one of her spells. She had hold of the defendant, who was badly frightened. Witness separated them and returned to his own room, but, soon hearing the noise again, he went back to their room and found the two women in a violent scuffle. Witness seporated them again, and, while he was trying to hold Emma, the defen ant started to run out of the room, hut fell down the steps after reaching the door. There were three or four steps to the. door. Witness stated that the defendant was a good servant. Instead of trying to conceal her pregnant condition, sh i told him that was her reason for leaving his employ, as she desired to go to her mother’s to be confined.</p> <p>The foregoing is in substance, though somewhat abbreviated, the statement of facts as presented by counsel to the trial judge, who, in his certificate, made some additions. The most material of them were that Dr. Tate testified to the crepitation of the child’s lung, and to the absence of decomposition; and that Dr. Park did not state that in every case of strangulation all the signs were present, nor that the tongue was always protruded.</p> <p>Though this court reverses the judgment of conviction on questions of evidence, it will be observed that it sustains the charge given to the jury by the court below, and quotes so much of it as appears to be necessary here.</p>

Tried below before the Hon. A. J. Hood. The indictment in one count charged the robbery, and in another the theft of a watch of the value of $15, and of $10 in money. The conviction was for swindling to amount exceeding $25, and a four years’ term in the penitentiary was the punishment assessed. The only witness in the case was E. W. Cashion, the party alleged to have been despoiled.

<p>Assault.— Under article 489 of the Revised Penal Code an assault may be committed by “the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object.” Held, that the ability to commit a battery need not be shown in order to constitute or prove such an assault. (McKay v. State, 44 Texas, 43, and Jarnigan v. State, 6 Texas Ct. App. 465, were cases decided before the enactment of the Revised Codes.)</p>

<p>Appeal from the County Court of Clay. Tried below before the Hon. W. B. Plemons, County Judge.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. S. H. Hodges, County Judge. Two witnesses for the State testified that, on the day alleged in the indictment, they saw the handle and a part of the cylinder of a pistol protruding from-the appellant’s hip pocket. For the defense, a gunsmith testified that the appellant, on or about the same day, brought him the handle and cylinder of a pistol, to get them repaired.

<p>Appeal from the County Court of Fannin. Tried below before the Hon. T. B. Cox, County Judge.</p> <p>The case is disclosed in the opinion.</p>

Tried below before the Hon. Gr. N. Aldredge. The bill of indictment charged that the appellant and John Turner, on the 15th day of November, 1878, in the county of Ellis, did take, steal and carry away, from and out of the possession of M. N. Frank, sundry dry goods of the aggregate value of $250. A verdict of guilty assessed the punishment at two years’ confinement in the State penitentiary.

Appeal fi’om the District Court of Parker. Tried below before the Hon. A. J. Hood. The indictment was for theft of cattle belonging to J. W. Wylie, the defendant being charged in connection with William Howell. The conviction was for misdemeanor; the verdict rendered, upon which the principal question arises, being in words as set out in the opinion.

<p>1. Bail.—By the former Code of Criminal Procedure (Pascli. Dig. art. 8748), a sheriff was prohibited from, taking bail in a felony case “ during the term of the court,” and was required to take the accused before the court, to enter into recognizance. Held, that this article applied only to cases pending in the District Court, and not to cases of which it had not by indictment or otherwise acquired jurisdiction or cognizance. The Revised Code of Procedure, in article 804, contains a more explicit provision to the same effect.</p> <p>8. Same.— Being committed by a justice of the peace on a charge of bailable felony, the bail of the accused was fixed by the justice at f1,000, but subsequently the State’s counsel and the accused agreed that the sheriff should release the accused on a bond for $500; which being executed by the present appellants, the accused was released. In defense to scire facias on the forfeiture of the bond the appellants contend that it was void because taken by the sheriff in a sum different from that fixed by the justice. But held that appellants are estopped. Note the distinction between this case and those of Barringer v. State, 37 Texas, 553, and Neblett v. State, 6 Texas Ct. App. 316. Such agreements, however, are highly reprehensible on the part of officials representing the State, and especially so on the part of the officer having the custody of the accused.</p>

Appeal, from the County Court of Lamar; - Tried below before the Hon. W. S. Moore, Comity Judge. The conviction was for an assault and battery upon the person of one Bama Jeffries, a female, in Lamar county, Texas, on July 15, 1880. The fine imposed was $25. The prosecutrix testified that she had no personal acquaintance with the defendant. On the day that the offense is alleged to have been committed the defendant drove up to her house in a buggy.

<p>Appeal from the County Court of Collin. Tried below before the Hon. T. C. Goodker, County Judge.</p>

<p>1. Bail Bond.—It is not sufficient that a bail bond describe some offense against the laws of this State. It must describe the one of which the principal obligor stands charged.</p> <p>2. Same—Case Stated.—The indictment charged the theft of certain cattle, the property of “ J. P. and A. C.” The bail bond described them as the property of J. P. Held, a fatal variance.</p>

Tried below before the Hon. H. L. Harrison, County Judge. The information charged the appellant with the violation of the act of March 25, 1875, entitled “An act to protect the wool-growing interests of the State of Texas',” by wilfully removing his sheep from prescribed limits after notice that they were infected with scab. He was tried, convicted, and a fine of $85 imposed by the jury.

<p>Appeal from, the County Court of Wilson. Tried below before the Hon. W. L. Worsham, County Judge.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. A. H. Abney, County Judge. The information was based upon the affidavit of Juan Hernandez, and charged the appellant with an aggravated assault and battery. On trial he was found guilty of a simple assault, and his fine fixed at $2.50.

Tried below before the Hon. A. J. Hood. The indictment, in the usual form, charged the theft of four hogs, worth ten dollars each; but the case was submitted to the jury as an accusation of receiving the hogs, with knowledge that they had been stolen,— a feature which distinguishes this conviction from the former one, which, as reported in 9 Texas Ct. App. 303, was reversed by this court upon a question not involved in the case as now presented.

<p>1. Practice in this Court in Misdemeanors.— To the rule that errors in misdemeanor cases will not be revised when exception was not reserved in the trial court, an exception obtains if radical error to the appellant’s prejudice is apparent of record.</p> <p>2. Jury—Minutes of Court.—The record must show that the jury was a legal one, though a general recital to that effect suffices, without naming any juror.</p> <p>3. Juries in the County Courts consist of but six men, and they must unanimously concur in the verdict,</p> <p>4. Case Stated.—The entry in a misdemeanor case recited a verdict found by “a jury of good and lawful men, to wit, P. H. Ebner,” and that name was signed to the verdict as foreman. Held, that no presumption can be indulged in aid of the entry or verdict, which import a jury composed of but one man.</p> <p>6. Quaere, whether the provision of the Revised Code of Procedure that the verdict in a felony case must be signed by the foreman is only directory? But that is the better practice in felony cases.</p>

<p>1. Plea of Guilty to an indictment for felony must be made in open court and by the defendant in person. It may be made orally, but must be entered of record.</p> <p>3. Same—Practice.—To the validity or acceptance of such a plea in a felony case the Code of Procedure prescribes three indispensable preliminaries, viz., 1, that the defendant be admonished by the trial court of the consequences of the plea; 3, that it plainly appears that he is sane; and 3, that he plainly appears uninfluenced by any consideration of fear, or by persuasion, or delusive hope of pardon. These prerequisites must be made manifest of record, and cannot be supplied by inference, intendment, or presumption.</p>

Tried below before the Hon. J. A. Carroll. The indictment charged the appellant with the murder of one E. 0. Driscoll, on March 15, 1879, by shooting him with a pistol. In June, 1880, the case came to trial and appellant was found guilty of murder in the second degree, and a term of five years in the penitentiary was assessed as his punishment.

<p>1. Charge of the Court.—It is made the imperative duty of the court in felony cases, to charge the law and all of the law applicable to every conclusion which may be legitimately deduced from the evidence,</p> <p>2. Same.—Though it was the duty of the accused to ask an appropriate instruction, his failure to do so will not preclude a reversal by this court when it appears that the omitted instruction was law applicable to some of the facts in proof, and that its omission was prejudicial to the rights of the accused.</p> <p>3. Same—Negligent Homicide.—See the opinion and the facts for a state of proof which in a trial for murder makes the law of negligent homicide a part of the law applicable to the case.</p> <p>4. Murder in the Second Degree.—A conviction for murder in the second degree will not be set aside because the proof tended to show that the killing was upon express malice aforethought.</p>

<p>. Appeal from the County Court of Caldwell. Tried .below before the Hon. J. D. Bice, County Judge.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. W. A. Blackburn. The indictment charged the theft of a cow, and the punishment assessed by a verdict of guilty was a term of two years in the penitentiary.

<p>,1. Gaming.—The appellant was prosecuted under an indictment charging that he did “ unlawfully keep and exhibit a gaming table for the purpose of gaming.” -The evidence- disclosed that the appellant was the proprietor of a saloon, and kept in his saloon a table upon which the game of dice was thrown for drinks and money, and upon which the game of dominoes was played. Held, that the tables denounced by arts. 358, 359, 360 of the Penal Code are such tables only as are constructed for the playing of certain specific inhibited games, in which the table is not only a part of the gaming device, but is also essential to the proper playing of the game. See the opinion in extenso for the question discussed.</p> <p>2. Same.— Prior to the act of March 5th, 1881, amendatory of arts. 364 and 365 of the Penal Code, and which took effect ninety days after its passage, the throwing of dice was not per se in violation of any law of this State. See the opinion for the substance of the amendment.</p>

Tried below before the Hon. H. E. Eldridge, Special Judge. The appellant was indicted, with Charles Reed, for the murder of Frank White. The verdict against her was for murder in the second degree, with punishment assessed a.t five years’ confinement in the State penitentiary. The parties and most of the witnesses were colored people. Henry Bartee, colored, was the first witness introduced by the State.

<p>Appeal ,from the District Court of Brown. Tried below before the Hon. T. L*. Hutchison.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. T. L. Hutchison. The indictment charged the appellant with adultery with Barbara Edwards, his sister-in-law. His trial resulted in a verdict of guilty, and his punishment was assessed at a fine of $150.

Tried below before the Hon. T. L. Nugent. The indictment charged the appellant and one J. M. Saunders with the theft of personal property exceeding $20 in value. A severance being granted, the defendant pleaded guilty and Iris punishment was assessed by the jury at two years’ confinement in the penitentiary. Motion for new trial was made and overruled, and the case appealed.

Tried below before the Hon. A. W. Parham, County Judge. The prosecution was for theft of property valued at less than $20. The punishment imposed was a fine of $25 and six hours’ confinement in the county jail. On behalf of the State it was shown that the defendant was a tenant of Mrs. Fauquer, the prosecuting witness.

Tried below before the Hon. G-. E. Stewart, County Judge. The indictment charged the appellant as an “ adult male,” with an aggravated assault upon Bob Sessam, a child. His punishment was assessed at a fine of $100, and one month’s confinement in the county jail. The evidence shows that the appellant whipped the principal witness, who was twelve years old, with a rope, doubled, striking him twelve or thirteen times, and inflicting great bodily pain.

Tried below before the Hon. Gr. H. Hookah. ■ The indictment was presented in Hovember, 1879, and alleged that one Gr.

<p>Appeal from the County Court of Wilson. Tried below before the Hon. H. H. Abney, County Judge.</p> <p>The opinion discloses the case.</p>

<p>Appeal from the County Court of Falls. Tried below before the Hon. E. C. Stuart, County Judge.</p> <p>The opinion discloses the entire case.</p>

Tried below before the Hon. E. B. Turner. In May, 1880, the grand jury of Travis county presented an indictment by which the appellants, William Eanes and Robert Eanes, were jointly charged with the murder of O. D. McMillan, on February 19, 1880, by shooting him with pistols.

Tried below before the Hon. W. A. Blackburn. The defendants were indicted for the murder of A. G. Hall, marshal of the town of Bound Bock, Williamson county, on the 26th day of March, 1878. Their trial, at the January, 1881, term of the District Court, resulted in their conviction of murder of the second degree, with punishment of each affixed at five years in the penitentiary. The opinion sets out the material evidence in detail.

Tried below before the Hon. L. D. Bradley. The indictment charged an assault with intent to murder J. D. House. The verdict assessed the punishment at two years in the penitentiary. The question upon which the judgment is reversed requires no statement of the facts of the case.

Tried below before the Hon. G. A. McCall, Special Judge. The indictment charged that the appellant, having been convicted of burglary and thereby disqualified, knowing his disqualification, did vote at a certain election, etc., contrary to the statute, etc. Art. 165, Penal Code. His trial resulted in his conviction, with his punishment assessed at three years and six months in the penitentiary.

<p>1. Pbactice — Bills of Exception.—On the trial of an accused charged with theft of a mare, a witness for the defendant was asked if he did not direct the accused to go and get the mare and bring her to him; which question was objected to by the State on the ground that the “ witness had no right to direct the accused to steal the mare.” When the objection was interposed the trial judge asked defendant’s counsel: “ Do you propose to prove that witness directed him to steal the mare ? ” The question to the witness was excluded, and to its exclusion an exception was taken, but no exception was then taken to the remark of the judge, though after conviction it was embodied in a bill of exceptions, and was assigned for error. Held, that such matters should be saved by exceptions properly taken at the time, otherwise this court will not reverse unless it be apparent that the accused was injured by the remark of the judge.</p> <p>2. Pbactice.— It is objectionable practice for a trial judge, in passing upon any question of law arising in a case, to make any remarks or inquiries, in the hearing of the jury, which might appear to be the expression of an opinion as to the facts.</p>

Tried below before the Hon. T. M. Paschal. ■ The indictment charged the defendant and four others with the theft of “a certain horse, the property of Q-. E. Albee.” The trial of this defendant resulted in his conviction, with five years in the penitentiary assessed against him as his punishment. The statement of facts is not certified by the trial judge.

Tried below before the Hon. T. J. Duke, County Judge. The opinion discloses the case. The fine imposed by the verdict was ten dollars.

<p>Appeal from the County Court of Johnson. Tried below before the Hon W. J. Ewing, County Judge.</p> <p>The opinion sufficiently discloses the case.</p>

Tried below before the Hon. Jo. Abbott. The appellant was charged by indictment with the murder of an unknown party on 14th day of July, 1811. This is the third appeal in the case, the first report of it being in 1 Texas Ct. Appeals, p. 412, and the second in 9 Texas Court of Appeals, p. 129.

Tried below before the Hon. W. A. Blackburn. The indictment charged the defendant and Thomas Johnson with the theft of one head, of neat cattle. Four years in the penitentiary was the punishment awarded. The contest was purely over the identity of the animal, and involves no evidence necessary to an understanding • of the questions decided in the opinion.

Tried below before the Hon. G. W. Glasscock, County Judge. The information charged the appellant and two others with an aggravated assault upon John Hodge, committed on the 13th day of January, 1881, in Williamson county. The appellant was convicted notwithstanding a conflict of testimony, and his punishment was assessed at a fine of fifty dollars.

Tried below before the Hon. W. H. Burkhart. The indictment charged-the appellant with the murder, in Waller county, on the 1st day of January, 1881, of Thomas Bay, Sr. He was tried, found guilty of murder of the second degree, and his punishment assessed at five years in the penitentiary. . It appears, according to the testimony of the witness Snooks, that, on the night of January 1, 1881, David Bay, son of the deceased, and Alf.

Tried below before the Hon. B. T. Estes. The indictment charged the theft from W. W. Sanders, in Bowie county, on the 15th day of May, 1880, of ten twenty-dollar- gold pieces. The appellant was found guilty, and his punishment, affixed at two years in the penitentiary. The substance of the testimony of W. W. Sanders, for the State, was that, on the 1st day of May, 1880, he was engaged in merchandising in the village of De Kalb,. Bowie county’ Texas.

Tried below before the Hon. A. S. Walker. The indictment charged the theft, on the night of January 21st, 1881, of a watch and chain from the possession of W. M. Burton. The verdict returned by the jury was one of guilty, assessing the punishment at confinement in the penitentiary for two years.

Tried below before the Hon. E. 0. Stuart, County Judge. The indictment charged that the appellant, while the legal jailor of the Falls county jail and as such the custodian of the prisoners therein confined, did, on the 22d day of December, 1879, negligently permit the escape of one William Hart, confined on a charge of murder, and of three others confined upon charges of offenses less than capital. The verdict found him guilty and assessed his punishment at a fine of $225.

Tried below before the Hon. Jaimes Masterson. Appellant was indicted for the theft, on October 8, 1811, of a suit of clothes worth $8, a suit of boys’ clothes worth $9, a pair of pants worth $2, three coats worth $3.25 each, one coat worth $1, two shirts worth $3.50 each, one shirt worth $2.50, a pair of cuffs worth 50 cents, a box of crayons worth 50 centsj two boxes of collars worth 25 cents each, two boys’ hats worth 75 cents each, two bottles essence of lemon worth 25…

I. B. McFarland. The indictment charged the theft, in Washington county on the 7th day of February, 1880, from Tom Dever, of one bay horse, and three bay mares, The verdict found the appellant guilty, and assessed his punishment at a term of five years in the State penitentiary.

Tried below before the Hon. A. 0. Cooley. The indictment charged the appellant with the murder of John Anderson, in Tom Green county, Texas, on the 4th day of December, 1880. His trial resulted in Ms conviction of murder in the first degree, and the death penalty was assessed. The evidence was brief and is embodied in the opinion substantially as given by the witnesses.

Tried below before the Hon. W. H. Burkhart. The conviction in this case was based upon an indictment charging the appellant with the rape of Patsey Henricks, a female child, under the age of ten years. The jury found him guilty of an assault with intent to commit rape, and assessed his punishment at four years in the penitentiary. The parties were colored people.

Tried below before the Hon. T. M. Paschal. The indictment charged the appellant and one Dimmick jointly with the theft of 60 head of sheep. The trial of the appellant resulted in his conviction as charged, but found that he voluntarily returned the property within a reasonable time, and before the institution of this prosecution, and assessed his fine at $25.

Tried below before the Hon. James Hiker, County Judge. The opinion discloses the case. The fine imposed by the jury was in the sum of $25.

Tried below before the Hon. T. L. Hutchisoh. The indictment charged the appellant with the theft, in Brown county, on the 24th day of May, 1881, of seven head of cattle, the property of Holland Mays. He was found guilty as charged, and his punishment fixed by the jury at five years’ confinement in the penitentiary.

Tried below before the Hon. L. D. Bradley. The indictment charged the appellant with the rape of Katy Templeton, laid the venue in Navarro county, Texas, and the date of the offense, January 22d, 1881., He was found guilty upon his trial, and his punishment was assessed at a term of 39 years in the penitentiary. Katy Templeton, the woman alleged to have been outraged, was the first witness introduced by the State.

Tried below before the Hon. A. J. Hood. This is the second appeal from a conviction of manslaughter under an indictment charging the appellant with the murder of John Booth in Parker county, Texas, on September 28, 1879. The former report, to be found on page 84 of the 8th volume of these Eeports, sets out a full statement of the evidence upon which the conviction in the first instance was had.

Tried below before the Hon. L. D. Bradley. The indictment charged the appellant with the theft, on the 10th day of December, 1819, of a gelding, the property of John Smith. His trial, in February, 1881, ■ resulted in a verdict of guilty, with five years in the penitentiary assessed against him as punishment..

Tried-below before the Hon. J. Abbott. The defendant was charged by bill of indictment with an assault with intent to murder J. H. Daniels, in Johnson county, Texas, on the 7th day of December, 1880. His trial resulted in conviction, with punishment assessed at two years in the penitentiary.

Tried below before the Hon. T. L. Hutchison. The indictment, presented on the 21st day of January, 1880, charged the appellant, and his brother Nelson Post, with the murder of G-. B. McDermott, in Young county, Texas, on the 15th day of October, 1879. The trial of the appellant, a severance having been granted, resulted in his conviction of murder in the first degree, with the death penalty assessed.

Tried below before the Hon. T. L. Hutchison. This is the companion case of Jack Post (ante, p. 579) for the murder of G. B. McDermott, in Young county, Texas, on the 15th day of October, 1879. The trial was had upon the same indictment, and resulted in a like verdict of murder in the first degree, but the punishment was assessed at a life-term in the penitentiary.

<p>Appeal from the District Court of Williamson. Tried below before the Hon. W. A. Blackburn.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. W. E. Collard. As the passenger train on the International Railway was leaving the town of Gause in Milam county, at 3 o’clock on the morning of May 7th, 1874, bound west, a shot was fired from the depot platform through the window of, and into the last or rear car, and J. B. Scobee was struck in the neck by a pistol ball, receiving a wound from which he died a few days later.

Tried below before the Hon. W. H. Burkhart. The indictment charged the murder of W. E. Croxton. The conviction was for murder in the second degree, with the penalty assessed at a term of 25 years in the penitentiary. Mrs. Croxton, the wife of the deceased, was the first witness for the State.

Tried below before J. H. Burts, Esq., Special Judge. On October 12, 1880, the grand jury of Travis county presented an indictment which charged that the appellant, on September 4, 1879, was the secretary of the Austin Home Building and Loan Association, an incorporated company, and as such was in possession of $5,100, currency of the United States and the property of said Association; and that he “did then and there; with intent to defraud, unlawfully and fraudulently…

Tried below before the Hon. W. J. Ewing, County Judge. The indictment charged the wilful killing of a gelding, the property of J. A. Callahan, on the 14th day of January, 1880. The jury found the appellant guilty and assessed his punishment at a fine of §100. The State relied alone upon circumstantial evidence, but, as no question arising thereon is involved in the opinion, a statement of the facts is unnecessary.

Tried below before the Hon. H. C. Pleasants. Abe Bowen, W. H. Rice and the appellant were jointly indicted for the theft of two gildings, the property of B. and L. Miriam, in De Witt county, on the 25th day of August, 1879. A five years’ term in the penitentiary was assessed against the appellant, who was alone on trial.

Tried below-before the Hon. B. T. Estes. ! The charge in the indictment was the theft from J. C. Lindsay, on April 24, 1880, of $25, in two ten and one five-dollar notes. ‘ The trial resulted in a verdict of guilty, and a term of two years in the penitentiary was the punishment assessed. J. C. Lindsay testified, for the State, that the appellant was in his employ as a servant or laborer on the 24th day of April, 1880.

<p>Appeal from the District Court of Grayson. Tried below before the Hon. Joseph Bledsoe.</p>

Tried below before the Hon. A. S. Walker. The indictment charged the forgery of a deed of conveyance purporting to be the act of one Edward Gritten, transferring to James Leland Hall the legal title of the said Gritten to a certain league of land, situated in Travis county, Texas. The alleged fraudulent deed bore date January 25th, 1849.

<p>1. Bill op Exceptions.—An unauthenticated bill of exceptions will not be considered by this court for any purpose whatever.</p> <p>2. Verdict — Sentence — Practice in this Court.—When the sentence of the court is not in conformity with the verdict of the jury and the judgment entered thereupon, and the record discloses no other error, this court will not reverse and remand the case, but will reform the sentence so as to conform to the verdict and judgment.</p>

<p>1. Embezzlement.— Indictment or information for embezzlement must allege the value of the embezzled property.</p> <p>2. Same,—The value is not sufficiently alleged by describing the embezzled property as ‘1 eight dollars in money consisting of one five-dollar bill, one two-dollar bill, and one one-dollar bill, circulating medium current as money.”</p> <p>3. Same—Theft—Indictment.—Appellant was charged with embezzlement as a “ bailee ” of certain funds “ to be by him conveyed ” to a designated place. Queere: Should not the prosecution have been for theft instead of embezzlement, conformably to article 188 of the Revised Penal Code, whereby embezzlement by a carrier is made theft ?</p>

<p>Appeal from the District Court of Williamson. Tried below before the Hon. W. A. Blackbubh.</p> <p>The opinion discloses the case. In the defendant’s-motion for a new trial it is alleged that, his counsel ineffectually asked the court for a short postponement of the trial, to enable the defense to send for witnesses who would contradict the principal witness for the State. The, ruling of the court, however, on the application for a postponement does not appear to have been excepted to.</p> <p>A term of two years in the penitentiary was the punishment assessed against the appellant.</p>

<p>Appeal from the District Court of Bell. Tried below before the Hon. B. W. Rimes.</p> <p>The case is indicated in the opinion. The evidence for the State was circumstantial so far as it tended to inculpate the appellant. When accused by the owner, the appellant denied the theft, but said he would rather give the owner fifty dollars than be charged with the crime, and paid to him two ten-dollar silver certificates and some other currency. The two certificates and another one which defendant had paid to a merchant had marks upon them by which the owner thought but was not certain he recognized them as three of the five certificates stolen from him.</p>

. Appeal from the District Court of Hopkins. Tried below before the Hon. Green J. Clark. The indictment charged the appellant with the murder of P. M. Steed, on October 20, 1877, by shooting him with a double-barreled shot-gun. He was found guilty of murder in the second degree, and a term of five ' years in the penitentiary was assessed as his punishment. According to the so-called statement of facts, the appellant and the deceased were neighboring farmers.

<p>Bills or Exception, to be considered for any purpose on appeal, must be prepared and certified during the term of the trial court at which they are taken. But, if the trial court, by special order entered of record during the term, allows the statement of facts to be prepared and filed within ten days after the adjournment, as it may now do, exceptions to evidence admitted over objection may be embodied in it. See the opinion for a collocation of the Rules of Court and statutory provisions which control this matter.</p>

<p>1. Embezzlement—Indictment—Evidencie.—The indictment alleging the embezzlement of “one hundred and fifty-five dollars, then and there of the value of one hundred and fifty-five dollars, current money of the United States of America,” it was incumbent on the State, in order to warrant a conviction for a felony, to prove that the embezzled property was, as alleged in the indictment, current money of the United States of America, and of value to the extent at least of twenty dollars.</p> <p>2. Felony—Misdemeanor.—The value of property stolen or embezzled must be proved in order to disclose whether the offense be a felony or a misdemeanor.</p> <p>3. Appeal — Practice.—After an appeal has been perfected, jurisdiction of the case passes out of the trial court and attaches to this court, and hence any attempted correction of the record by the court below after appeal has been perfected, cannot be considered by this court for any purpose whatever.</p> <p>4. Record Entry oe Petit Jurors.—Note observations of Winkler, J., on this subject.</p>

Tried below before the Hon. W. A. Blackburn. The evidence is disclosed in the opinion. A term of two years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. W. E. Collard. The conviction was for the theft of amare, and a term of five years in the penitentiary was the punishment assessed against the appellant. The pony referred to in the opinion was, according to the evidence, obtained by him in exchange for the mare, and was in his possession in Bastrop county when he was arrested there, ten days or two weeks after the mare was stolen in the county of Milam.

Tried below before the Hon. A. J. Hood. The indictment charged the appellant with an assault with intent to kill and murder W. T. Whitlow, in Tar-rant county, Texas, on the 1st day of November, 1880. His trial resulted in his conviction of the offense charged against him, and two years in the penitentiary was the punishment awarded him.

<p>1. Evidence—Impeachment of Witness.— There is no rule of law which requires that the question put to the impeaching witness shall be in the exact and precise language of that put to the witness sought to be impeached. If the predicate has been properly laid, it is sufficient if the question is germane and pertinent to the fact in regard to which the witness sought to be impeached had been questioned.</p> <p>2. Continuance.—See the opinion for state of case wherein the defendant should have been awarded a postponement to procure the testimony of an absent witness, notwithstanding the desired testimony would have been cumulative.</p> <p>3. New Trial.—The motion for a new trial was supported by an affidavit setting out that, immediately after the verdict was rendered against the defendant, the affiant saw the prosecuting witness take another witness who had testified for the State, aside, and secretly give her five dollars in money. This affidavit was not controverted either by the prosecuting witness or by the witness charged to have been bribed. Held, that the new trial asked should have been awarded.</p>

Tried below before the Hon. R 0. Beale, County Judge. The indictment charged the appellant and one Mrs. Mary Wiley with the crime of adultery, alleging habitual carnal intercourse for one year prior to June 1, 1880. Having obtained a severance from his co-defendant, the appellant was tried on the 10th day of March, 1881, convicted, and his punishment assessed at a fine of $100. Pat Nolan was the first and the main witness for the State.