Volume 11 — Texas Court of Appeals Reports

Tried below before the Hon. B. T. Estes. Theft of a beef steer belonging to one Minchen was the charge against the appellant, and two years confinement in the penitentiary the punishment assessed against him. Minchen, the alleged owner of the animal in question, proved its disappearance about the time laid in the indictment, and testified that he soon afterwards found near a certain locality a skull which he recognized by its horns to be that of his missing steer.

<p>Appeal from the County Court of Guadalupe. Tried below before the Hon. W. P. H. Douglass, County Judge.</p> <p>The prosecution was for maliciously killing a mule belonging to one Fritz.</p>

Tried before the Hon. E. E. Burke, County Judge. The indictment charged the appellant with committing an aggravated assault and battery upon Mary Sorrells, on October 24, 1879. He was found guilty, and his punishment was assessed at a fine of $100. Mrs. Sorrells was the principal witness for the State. She stated that she had known the defendant for several years, and lived about half a mile from him.

<p>Appeal from the County Court of McLennan. Tried below before the Hon. G-. B. Gerald, County Judge.</p> <p>The material facts are disclosed by the opinion of the court.</p>

Tried below before the Hon. E. B. Turner. The indictment charged that the appellant, on the 10th of March, 1877, stole, took and carried away from the possession of J. W. Whitt a “certain receipt for money in figures and words as follows: ‘Deceived, February 13, 1874, three hundred dollars specie. Thomas Huddleston;’” which was alleged to be of the value of $300, and the property of said Whitt.

<p>Error from the District Court of Travis. Tried below before John W. Eobertson, Esq., Special Judge.</p> <p>The opinion shows the material facts.</p>

Tried below before the Hon. L. G. Jackson, County Judge. The opinion states the case. A fine of 825 was the punishment assessed against the appellant in the court below.

<p>Habeas Corpus on appeal from a judgment in chambers rendered by the Hon. W. H. Stewart, Judge of the 26th Judicial District.</p>

Tried below before the Hon. Everett Lewis. A term of ten years in the penitentiary was thepunishishment assessed against appellant on his conviction for theft' of two horses. The opinion states all necessary facts.

Tried below before the Hon. John C. Egbert,sox. The indictment charged the appellant with the theft of two double-barreled shot guns, worth twenty dollars each, from O. O. Pegues, on January 22, 1880. The trial was had in June, 1881, and resulted in a verdict of guilty and assessment of his punishment at “2 years in the State Penitenilery.” The evidence was unusually direct and inculpatory of the appellant.

<p>Mtsdembanob Convicts.— Article 816 of the Code of Procedure enables a misdemeanor convict, by mailing the prescribed affidavit of insolvency, to obtain his discharge from imprisonment by working out the fine and costs adjudged against him; but a misdemeanor convict who is also detained in prison on a charge of felony cannot, by complying with the provisions of article 816, be set at liberty. The county authorities have no power to hire out a misdemeanor convict who is also in custody on an accusation of felony.</p>

Tried below before the Hon. Everett Lewis. The indictment charged Robert Hogan, Albert Vester and the appellant with the theft of a cow, the property of an unknown owner. At the separate trial of the appellant, he was found guilty, and a term of two years in the penitentiary was assessed as his punishment. The opinion states the facts involved in the rulings.

Tried below before the Hon. Jora 0. Bobertson. ■ The appellant was convicted capitally in the court below on an indictment which charged him with the murder of George Conquest, on February 20, 1811, by shooting him with a double-barreled shot gun. The record contains none of the evidence on which the conviction was had, but the charge of the court below indicates that robbery was the object of the crime.

<p>1. Jurisdiction — Practice.—The District Court has no authority to> transfer a felony case to the County Court; and therefore an order purporting to make such a transfer is a nullity, and does not divest the jurisdiction of the District Court. No order of the County Court to retransfer the case is requisite.</p> <p>2. Illegal Marking or Branding.— To constitute the offense of illegal marking or branding it is not sufficient that the accused marked or branded an animal not his own, without the consent of the owner. The intent to defraud is an essential ingredient of the offense, and must be established by evidence either affirmative or negative. It cannot be inferred from the naked fact that the accused marked or branded an animal not his own, without the owner’s consent. See evidence held insufficient to establish the intent to defraud.</p>

<p>Appeal from the District Court of Blanco. Tried below before the Hon. L. W. Moore.</p> <p>The indictment charged the appellant with the theft of a mare, the property of Jacob Helps. Being found guilty by the jury, the verdict assessed his punishment at a term of five years in the penitentiary.</p> <p>The opinion discloses all matters involved in the rulings.</p>

<p>Appeal from the District Court of Austin. Tried below before the Hon. L. W. Moore.</p> <p>The indictment charged the appellant with committing a rape upon Eliza Janssen, in Austin county, on July 15, 1880. The jury found him guilty, and assessed his punishment at death.</p> <p>The evidence in the case was unusually concise and conclusive. S. B. Blake, a justice of the peace, was introduced by the State, and identified a document as a statement made by the defendant before the witness in his official capacity. The statement was voluntarily made by the defendant after he had been fully warned as the statute directs. On this predicate the prosecution introduced the statement itself, as follows:</p> <p>'ei Last Thursday night I left the house of Mr. H. Lewis in the Brazos bottom, to go to my brother-in-law’s on Mrs. Freder’s place. When I passed Mrs. Janssen’s place I hallooed, and Mrs. Janssen came out, and I asked her if she wanted anybody to pull fodder. She said no. I then asked her if she had anything- to eat. She said no. She stood there a while and then started into the house, and before she got in I caught her and threw her down, and the old man came out with an ax. I turned the woman loose, and when I was getting up he struck me in the head with the ax. I then knocked him down with my fist. I turned round to the woman, and she jumped in the house and told me to leave, and I went off.</p> <p>his</p> <p>(Signed) “ Miles x Thompson.”</p> <p>mark.</p> <p>The State proved that the day referred to in the above statement was the date of the offense as charged in the indictment, to "wit, July 15, 1880.</p> <p>Mrs. Janssen, testifying for the State, said she was a widow with six children. Between ten and eleven o’clock in the night of Thursday, July 15, 1880, the defendant came to witness’s place in Austin county. Witness was in bed, but, hearing her dogs barking, she dressed and went out to the gate, thinking her brother had come for her on account of his sick family. She found, however, that it was not her brother but the defendant. He asked for something to eat, and inquired if witness wanted any one to pull fodder. Being scared and anxious to get back into the house, witness promised to get him something to eat, and started into the house. Just before reaching the house she felt a pressure on her shoulder, and at first thought it was a large dog of hers; but it was the defendant. He caught her by the throat and threw her down.' She managed to get his hands from her throat long enough to enable her to scream twice. Her father-in-law, who was seventy-four years old, but strong considering his age, came out of the house and saw the defendant on top of the witness. The defendant raised up and struck the old man, who thereupon went away and soon returned with an ax, and struck defendant on the head a blow with the edge and another with the back of the ax. Defendant took the ax from the old man and knocked him down, and then came back to witness, with a knife in his hand, and told her to hush up or he would kill her. She had resolved to die rather than submit to the defendant’s embraces, but her strength was about exhausted, and she thought of her helpless children, and on their account thought it best, to submit without further struggle. She did not have strength to resist the defendant, but at no time consented to his having intercourse with her. After he came with the knife he succeeded in effecting penetration of her person, and accomplished his purpose. In her scuffle with him he made several scratches and bruises on her neck and face, and also a cut on her knee and a bruise on her hip. Witness’s father-in-law had since died. After he was knocked down by the defendant he lay on the ground, bleeding and un-, conscious, until after the defendant had accomplished his purpose and gone away; and then he called to witness for assistance, and she got him into the house.</p> <p>A brother of Mrs. Janssen testified that he lived about half a mile from her, and that, about eleven o’clock in the night of July 15, 1880, she came to his house in an excited and distressed condition. She told the witness that she had been ravished, and her face and neck were scratched and bruised.</p> <p>J. Graff, for the State, testified that he was one of the party who arrested the defendant, and that when they brought the defendant near Mrs. Janssen’s she exclaimed “ That is the man.”</p> <p>O. L. Langhammer, for the State, testified that he as-, sisted in arresting the defendant, and on the defendant’s head he found a wound made by some edged instrument. In defendant’s hat there was a cut which had been sewed up, and which precisely corresponded with the "cut on his head. The hat worn by defendant when arrested w;as produced and identified.</p> <p>This concluded the evidence for the prosecution. None was offered by the defense.</p>

<p>Refusal to Rendeb Tax-List.—By the literal import of article 118 of the Penal Code it is ipso facto a misdemeanor to refuse or neglect to make out and render the list of taxable property when called on in person by the assessor or his deputy; but article 4716 of the Revised Civil Statutes authorizes a delinquent to exculpate himself before the board of equalization, and, if he faüs to do so, requires the board to return his name to the assessor on the list of delinquents presentable to the grand jury. Held, that the penal enactments on this subject must be construed in connection with correlative provisions of the Civil Statutes; and therefore, notwithstanding the literal import of said article 113, no criminal prosecution of such a delinquent can be maintained before he is allowed opportunity to exonerate himself before the board of equalization. See the opinion in extenso on this topic, and note the civil enactments collated therein.</p>

<p>1. Continuance — New Trial.—No application for a continuance asked on account of the absence of a witness is now grantable as a matter of right; but, when a continuance has been refused and the defendant convicted, if it appeared at his trial that the evidence of the absent witness was material and probably true, then a new trial should be granted.</p> <p>2. Charge oe the Court.—It is not incumbent on the trial judge to give in charge to the jury the law applicable to a deduction which the jury could not reasonably draw from the evidence.</p> <p>3. Penalty.— Within the limits prescribed by law, the amount of the punishment is a matter for the determination of the jury alone. The court is concerned no further than to see that those limits are not transcended by the assessment made by the jury.</p>

<p>1. Informations —Variance.— The particularity requisite in an information is not necessary in the affidavit on which it is founded, nor are discrepancies between them of any consequence provided there is accordance in substance. They should agree as to the time and venue of the offense and the names of the defendant and the injured party, and there should be substantial conformity in their allegations descriptive of the offense.</p> <p>3. Same.— An information for aggravated assault and battery was founded on an affidavit which, after charging an aggravated assault, alleged specific acts of personal violence. Held, that there is no variance between the information and the affidavit.</p> <p>3. Practice.— At a trial for a misdemeanor the evidence was admitted and the argument to the jury progressing when it was discovered that the information had not been read and that no plea had been made by or entered for the defendant. Over objections by the defense, the trial court allowed the prosecuting counsel to read the information to the jury, and caused the plea of not guilty to be entered for the defendant, who refused to plead; and thereupon the argument was resumed and the trial concluded with the conviction of the defendant, who duly reserved exceptions. The trial judge accounts for his rulings on the ground that his attention had not been called to the irregularities complained of, and that the defense made no objection to the evidence when it was introduced. But held that the trial was conducted with such disregard of statu- ' ■ tory requirements that, whether the defendant suffered prejudice or ■ not, the conviction cannot stand.</p> <p>4. Same—Plea.—Without a plea made by or entered for the defendant, there is no issue and can be no legal trial. Except in capital cases, the proper time to require the defendant to plead is when the case is called for trial and the parties announce ready, or a continuance has been asked and refused; and if the defendant, when called on to plead, refuses to do so or stands mute, the court should then cause the plea of not guilty to be entered for Mm.</p>

<p>1. Indictment — Evidence.—Indictment for misdemeanor charged the commission of the offense on the 18th of August, and by the clerk’s indorsement on the indictment it appeared to have been filed in court on that date. But the record entry of presentments by the grand jury showed that the indictment was returned into court on the 19th of August,—a date subsequent to that on which -the commission of the offense was charged. Held, that the record entry of presentments was admissible for the purpose of showing the true date on which the indictment was presented by the grand jury.</p> <p>2. Same.—The prosecution was allowed to elicit from a witness the statement that the offense was committed before the presentment of the indictment. Held, that this was not amenable to the objection that it was the allowance of parol evidence to contradict or vary a record.</p> <p>8. Assaults.— On a trial for aggravated assault a conviction may yet be had for simple assault, though the Revised Penal Code omits the former provision expressly authorizing such convictions.</p>

Tried below before the Hon. W. E. Collard. Appellant was tried on an indictment which charged him with the theft of a barrel of sugar from the Houston and Texas Central Railway Company, on January 11, 1881. The verdict of conviction assessed his punishment at a term of three years in the penitentiary.

<p>1. Informations—Affidavit.— A nolleprosequi of a former information does not preclude the use of the affidavit therefor as the basis of a new information. Goode v. State, 2 Texas Ct. App. 520, cited on this subject with approval.</p> <p>2. False Imprisonment.—See evidence held insufficient to sustain a conviction for false imprisonment though but a nominal penalty-had been imposed.</p>

<p>1. Venue.—When the record fails to show proof .of the venue of the offense the judgment of conviction will be reversed.</p> <p>2. The “Rule.”—The enforcement of the rule to sequester witnesses rests in the discretion of the trial judge, and his action will not be revised unless that discretion was abused to the prejudice of the appellant. The Code of Procedure, art. 665, expressly provides that “ in no case where the witnesses are under the rule shall they be allowed to hear the testimony or any part thereof.” Witnesses who violate the rule, and the officer in charge of them, should be punished as for contempt of court.</p> <p>3. Privilege of Counsel.— The extent to which counsel may read to the jury from books is also a matter left largely to the discretion of the trial judge, and one which will not be revised on appeal unless that discretion was abused to the prejudice of the appellant.</p> <p>4. Same — Practice.— The' Code of Procedure expressly empowers the trial judge to regulate the order of argument in criminal trials, but entitles the State’s counsel to the concluding address. In his opening argument the State’s counsel should fairly develop his case and give the law he relies on; and the trial court should see that he does so. But the opposing counsel are bound to anticipate the line of argument to which the evidence suggests the State’s counsel may resort in his conclusion.</p> <p>5. Practice nr this Court,— If appellant’s counsel agreed to the statement of facts, its recitals are conclusive upon him in this court.</p>

<p>Appeal from the District Court of McMullen. Tried below before the Hon. D. P. Marr.</p> <p>Five years confinement in the penitentiary was the punishment assessed against the appellant. All matters involved in the rulings are disclosed in the opinion.</p>

<p>1^toest— Accomplice Testimony.— At the appellant’s trial for incest with his step-daughter she was the principal witness for the State, and portions of her testimony tended to inculpate herself. Held, that the trial court should have given in charge to the jury the statutory provisions controlling accomplice testimony and its corroboration.</p> <p>2. Same.— If a witness implicates himself, his statement that his participation was compulsory raises an issue of fact on the solution of which depends the question whether his testimony is or is not that of an accomplice.</p>

<p>1. Aggravated Assault.— Clause 5, article 496 of the Penal Code declares that an assault becomes aggravated when committed by an adult male on a female or child, or by an adult female on a child. Meld, that “adult” means a person who has attained the age of twenty-one years; and in a prosecution based on this clause the State must prove that the defendant was an adult when the assault was committed.</p> <p>3. Same.—But, under clause 6 of the same article, a male minor could, it seems, commit an aggravated assault on a female by violent familiarity with her person, against her will, with intent to have sexual knowledge of her.</p> <p>3. Plea.—Without a plea made by or entered for the defendant, there is no issue to warrant the introduction of evidence, and nothing to try. The ruling on this subject in Cole v. State, ante, p. 67, referred to and approved.</p> <p>4. Evidence—Practice.—The ruling in Hewitt v. State, 10 Texas Ct. App. 501, cited with approval.</p>

<p>_ Jurisdiction—Transfer of Misdemeanor Cases from the County to the District Court Because of Disqualification of the County Judge—Power and Duty of a Special District Judge in Such a Case.— When, because of the disqualification of a county judge to try a misdemeanor case, it is transferred to the District Court, the jurisdiction of the District Court attaches as amply as if it was original and exclusive; and if the district judge also is disqualified in the case, a special district judge must be chosen or appointed as provided by law, and his election or appointment be made matter of record, and, in the event of an appeal, be brought up in the transcript. The special district judge is empowered to try or dispose of the cause in the District Court, but has no authority to transfer it back to the County Court for trial, even though a new county judge, not disqualified in the case, has acceded to the bench of that court; and therefore such a retransfer to the County Court cannot invest it with jurisdiction over the cause. See the opinion in, extenso.</p>

<p>Appeal from the District Court of Hays. Tried below before the Hon. L. W. Moore.</p> <p>The opinion discloses all material facts. Two years confinement in the penitentiary was the punishment assessed. ■</p>

<p>1. Homicide—Right of Self-Defense.— In a trial for murder there was evidence tending to prove that the deceased had made threats to kill the defendant, and that, when shot by the defendant, he had a pistol upon his person and was advancing on the defendant in a violent and threatening manner. Held, error to so charge the jury as to condition the defendant’s right of self-defense upon his having resorted to all other preventive means, save retreat, before firing upon the deceased. On the contrary, if it reasonably appeared by the acts of the deceased, or by his words coupled with his acts, that it was his purpose to take the life of the defendant, or to do him serious bodily harm, the defendant, before slaying the deceased,was not bound to resort to all other preventive means save retreat, but had the right to slay him instantly and with the most effective means. This right accrued to the defendant not only at the very time the attack was being made upon him, but at any time after some act was done by the deceased showing an evident intent to take the life of the defendant.</p> <p>2. Same—Charge of the Court.—Instructions to juries should carefully avoid confounding the essential distinctions which the Penal Code, in articles 570 and 572, establishes between those cases in which the assaulted party may slay his assailant without resorting to other means of prevention, and those in which it is incumbent on him to first resort to all such means save retreat. Kendall v. State, 8 Texas Ct. App. 569, cited on this subject with emphatic approval.</p>

<p>Appeal from the County Court of Eains. Tried below before the Hon. E. P. Kearby, County Judge.</p> <p>A fine of one dollar was the penalty assessed against the appellant, on his conviction upon an information which charged him with the theft of a cross-cut saw worth four dollars, and a briar-hook worth one dollar and a half, alleged to belong to N. M. Woolsey but to have been taken from the possession of James Woolsey. The statement of facts and the bills of exception make up quite a voluminous record, but it is believed that for all practical purposes the opinion of this court sufficiently indicates the material facts.</p>

<p>1. Transfers from District to County Courts.—The Code of Procedure, article 437, requires that the clerk of a District Court, in executing its order for the transfer of misdemeanor cases to the County Court, “ shall accompany each case with a certified copy of all the proceeding taken therein in the District Court.” Non-compliance with this requirement is available to the accused by plea to the jurisdiction of the County Court.</p> <p>3. Indictment—Surplusage — Idem Sonans.— To an indictment for unlawfully selling liquor exception was taken because the word drink was written “dring,” and the word spirituous was written “ spiritous.” Held, with respect to the former mistake, that it is cured by the context and the word itself is surplusage; and that, with respect to the latter, the error in the spelling does not vitiate and the principle of idem sonans applies.</p>

Tried below before the Hon. Everett Lewis. The indictment charged that appellant, on July 20, 1880, in the county of Gonzales, and State of Texas, with force and arms did “unlawfully, feloniously and burglariously, about the hour of eleven o’clock at night of said day, enter by fraud the dwelling house of Mistress Ernstiene Gercheidle, there situate, with intent then and there unlawfully, feloniously and burglariously, and against the will and consent of Ernstiene…

<p>Evidence — Practice.— The Code of Procedure, article 661, directs that testimony shall be allowed at any time before the argument is concluded, if it appear “'necessary to the due administration of justice.” Within the purview of this provision testimony to discredit a material witness of the adverse party, by proving his conflicting statements, may well become “ necessary to a due administration of justice,” even though it be cumulative; and the fact that it was not offered in its regular order is not a sufficient reason for its exclusion.</p>

<p>1. Theft—Indictment— Allegation of Ownership.—If one person has the ownership of the property and another has the possession, charge, or control of it, the ownership may be alleged in either.</p> <p>2. Evidence— Confessions.— In a trial for the theft of a horse the only evidence inculpatory of the accused was a confession imputed ' to him by the prosecuting witness, who, being the half-brother of •the accused, justified his unnatural attitude by a desire to separate the accused from evil associates. The testimony of this witness was contradictory in various particulars of his own deposition at the examining trial, and material statements which he ascribed to the accused were inconsistent with the evidence of other witnesses. Aside from the putative confession, the only proof of the corpus delicti was the fact that the animal was missed from a certain field; and, on the other hand, there was proof that it was repeatedly seen on its accustomed range soon after its disappearance from the field. Meld, that evidence proved neither the corpus delicti nor the culpability of the accused. Note the comments made upon it in the opinion.</p>

<p>Appeal from the District Court of Brazoria. Tried" below before the Hon. W. H. Burkhart.</p> <p>The conviction was for rape of a little girl. She and the appellant were negroes. A term of twenty-five years in the penitentiary was the punishment assessed.</p>

<p>1. Transfer of Misdemeanor Cases from the District to Inferior Courts.— Certificate of the district clerk which sets out that “ the foregoing is a true copy of all the proceedings taken in the above case in the District Court, together with a true statement of the bill of costs accrued therein in the District Court, and that the indictment and all papers relating to the same on file in said court, are herewith transmitted,” is a substantial compliance with art. 437, Code Grim. Proc.</p> <p>2. Practice — Continuance — Bill of Exceptions.—The action of the trial-court in refusing a continuance will not be revised unless challenged there and presented to this court by an authenticated bill of exceptions. Recital in the judgment that a continuance was refused, and that the defendant excepted, will not supply the place of a specific bill of exceptions.</p> <p>3. Diligence.— Acceptance of service of a subpoena on the morning of the trial by a witness who resided eleven miles distant from the court-house, is not such diligence as, in the event of the nonattendance of the witness, will authorize a continuance. See the opinion with respect to the service of subpoena by acceptance.</p> <p>4. Aggravated Assault and aggravated assault and battery being synonymous as used in our statute, the technical inaccuracy of their use as convertible terms is not an objection to the charge of the court.</p> <p>5. Same.—Want of specific proof that the defendant was an adult male is not an available objection, when the record shows that the question was not in controversy below, and is not suggested by the facts in evidence.</p> <p>6. Charge of the Court.— The defense asked a charge for acquittal, if the jury believed from the evidence that when the defendant struck the prosecuting witness with a plow-line she was in the act of turning defendant’s mule from a water-trough, though admonished not to do so, whereupon he struck her with'the plow-line: Held, properly refused as being a charge upon the weight of evidence, and as obnoxious to art. 491, Penal Code, which justifies the use of a necessary degree of force to effect the lawful purposes specified.</p>

Tried below before the Hon. W. T. S. Keller, County Judge. The opinion discloses the case. The fine assessed was in the sum of $100.

<p>Appeal from the District Court of Gonzales. Tried below before the Hon. E. Lewis.</p> <p>The indictment was for the theft of a mare, the verdict guilty, and the punishment assessed was five years in the penitentiary.</p> <p>T. 0. Ellis testified that he had the defendant working for him in his crop at $13 per month. Mr. J. W. White employed the witness to make a tank for him, agreeing to pay him therefor $50, the mare in question to be given in lieu of $25, and the balance in money. The witness employed the defendant to assist him in the construction of the tank, agreeing to give him the mare at the valuation of $23. The witness and the defendant went to White’s together and got the mare. The defendant worked on the tank three or four weeks, riding the mare to and from the tank, and staking her out when at work during the day. The witness had trouble with the defendant on the evening before the mare was taken, and ordered him ofl: of the premises, and would have whipped him had he not left when ordered. The witness owed the defendant at this time $10.40, and told him to come to the house next morning for an order on White or the store for the money in settlement. The defendant expressed himself as satisfied with this mode of settlement, and said he had “no interest in the d—d mare.” This all occurred after supper, in the presence of witness’s family and Mr. Dilworth. The defendant took the mare in the night-time from where the witness had staked her. The witness recovered her, running on the range west of the Guadalupe river. There was a gun at the tank at the time of the difficulty between the witness and the defendant, but it was not in shooting order. The agreement was that the defendant was not to have the mare until he had finished paying the witness for her. After the arrest of the defendant, and while he was under bond, the witness asked him why he had taken the mare, and he replied “because you agreed to let me have her for work, and I have partly paid for her in work.”</p> <p>W. P. Dilworth testified that he was at Ellis’s house the night that the mare was taken, and heard the witness Ellis and defendant when they were making their settlement. Ellis told defendant to' return next morning and he would give him an order on White or the store for the balance of the money due him. He heard the defendant say that he had no interest in the mare. He heard Ellis tell defendant to go somewhere else and work enough to finish paying for the mare, and then to come and get her. Ellis ordered the defendant to leave the premises, and threatened to whip him if he did not. The two, Ellis and defendant, were quarreling.</p> <p>J. W. White testified that in June, 1879, he proposed to Ellis to pay him $25 in money and the mare at $25 if he, Ellis, would dig a tank for him. Ellis replied that before he would contract for the work, he would see if he could get the defendant to assist for the mare. In a short time thereafter Ellis and the defendant began work on the tank, and in a few days they came to the house of witness to get the mare. The witness delivered the animal to Ellis with the understanding that the property should not pass until the tank was completed. The defendant rode the mare off. The defendant worked on the tank three or four weeks, but left several days before it was completed.</p> <p>Willis Arrington testified that the defendant came to his house in July, 1879, riding the mare. He staid there three or four weeks. He traded the mare to the witness, and during the time mentioned the mare ran in the witness’s pasture. The mare broke out of the pasture finally, and the witness helped the defendant hunt for her, three days. The witness had known the defendant five or six years, and previous to this prosecution had never known him to be charged with a violation of law.</p> <p>Heal, Ran, and Gran Satterwhite all testified that, after the sale of the mare by White, the defendant rode her everywhere he went, and claimed her publicly as his property, purchased by him from Ellis.</p>

<p>1. Conspiracy—Evidence —• Practice.— Conspiracy to commit an offense cannot be proved by the confessions of a co-conspirator made to witnesses after the consummation of the offense, and in the absence of the defendant.</p> <p>2. Same—Case Stated.— C. testified that B. confessed to him, in the absence of defendant, that he and defendant had conspired to commit the offense, and V. testified that C. repeated to him B.’s confession; after which B. was introduced by the State and testified to the conspiracy, and to the commission of the offense in pursuance thereof. Held, that the evidence of C. was hearsay, and that of V. doubly so, and inadmissible because (1) conspiracy cannot be shown by the acts, declarations or confessions of a co-conspirator, but must be proved aliunde; and (2) because neither the acts, declarations nor confessions of a co-conspirator, done or made after the completion of the offense, are admissible. But to authorize revision by this court it must appear that objection to such proof was made when it was offered.</p> <p>3. Same — Corroboration.—While conspiracy cannot be established by the confessions of a co-conspirator to third parties after the offense, and in the absence of defendant, yet, if the co-conspirator is placed upon the stand, it is competent for him to testify.not only to the conspiracy but to all matters material to the issue; but in such case corroboration is essential to sustain a conviction. If, however, the conspiracy has been legally established, the acts, declarations, etc., of a co-conspirator, before the completion of the offense, are admissible, and the rule which requires corroboration does not apply.</p> <p>4. Practice.—During the argument of defendant’s counsel, the State was allowed to recall a witness who had been released from the rule and had heard the comments of counsel on the evidence, and the bill of exceptions states that the “ defendant objected.” Held, too vague and indefinite for review; that the ground of objection should be stated; and further, that the court was authorized to receive evidence at any stage of the proceedings pending the argument, when necessary to a due administration of justice, and its action in this respect will not be revised except where prejudice to the defendant is manifest.</p> <p>5. Verdict.—The indictment charging theft of property over the value of twenty dollars, a verdict that finds the defendant “ guilty of the offense as charged in the indictment ” is a sufficient finding that he is guilty of theft of property of the value of twenty dollars or over.</p>

Habeas Corpus on appeal from the County Court of Grayson. Tried below before the Hon. S. D. Steedmar, County Judge. The case is clearly disclosed in the opinion of this court.

Tried below before the Hon. Johh D. Polk, County Judge. The conviction was for aggravated assault upon a woman who weighed two hundred and fifty pounds, and the penalty was only a $25 fine,— just ten per cent.

Tried below before the Hon. T. L. Nugent. In May, 1881, the grand jury of Hamilton county presented an indictment which charged David Kemp, the appellant, with the murder of F. A. Smith, on the 2d of said month, by shooting him with a pistol.

Appeal ' from the District Court of Dallas. Tried below before the Hon. Gr. N. Aldredge. The charging parts of the indictment are set out in the opinion of this court.

Tried below before the Hon. D. P. Mabb. The indictment charged that the appellant, on March 1, 1881, did fraudulently and feloniously steal, take and carry away from the possession of S. V. W. Jones and E. H. Carll, constituting the firm of Jones & Carll, three certain horses, the property of said firm, without the consent of them or either of them. The appellant was found guilty, and a term of seven years in the penitentiary was assessed as his punishment.

Tried below before the Hon. G-. H. Noohah. The indictment was presented in November, 1879, and charged that the appellant, on the 29th of the preceding January, did willfully, feloniously, and' of his malice aforethought kill and murder one Barney Sherran. The case came to trial in May, 1881, and the trial resulted in the conviction of appellant for murder in the second degree, and an assessment of five years in the penitentiary as his punishment.

Tried below before the Hon. A. O. Cooley. The indictment charged the defendant and others with the theft of a horse, the property of one O’Banion. The trial of this appellant resulted in a verdict of guilty, with five years in the penitentiary assessed as punishment. J. B. O’Banion for the State testified that he owned a paint horse, in Llano county, in August, 1880.

<p>Appeal from the District Court of Ellis. Tried below before the Hon. Gr. N. Aldredge.</p> <p>The indictment charged the defendant and William Lowe jointly with the theft of two cows, one steer and one calf, estrays, and the property of some person unknown. Upon a severance the defendant was tried, found guilty, and awarded a three years’ term in the penitentiary.</p> <p>The witness Wm. Finlay, testifying for the State, stated in substance that on the 22d and 2íth days of February, 1880, he posted notices of the presence of estray cattle on his premises, and of his intention to deal with them as authorized by law unless claimed within twenty days. That about the last of February a man who announced his name as Jackson called on him and told him that he had been to Waxahatchie and there ascertained that witness had posted some cattle which he, Jackson, had lost from a drove some time before, describing them accurately. Upon Jackson’s swearing to the cattle, the wit: ness, upon the advice of his brother, delivered them to him. About this time the defendant and another man rode up, and asked if witness had cattle for sale. The witness sold him a small steer, ,and told him that Jackson would probably sell the cattle turned over to him by the witness. The witness introduced the defendant and Jackson, and they traded, the defendant paying Jackson fifty-seven dollars, but taking no bill of sale. Jackson was riding a fine bay stallion or ridgeling, defendant a bay pony, and the man with defendant a dun or yellow horse. About a month afterwards, the witness at the Mansfield mill saw the bay stallion Jackson rode and the dun horse ridden by the defendant’s companion on the occasion referred to; they were hitched to a wagon, which circumstance excited his suspicions. He found the owner of the wagon and addressed him as Jackson, but he turned and left the witness, who soon ascertained that his name was not Jackson, but was Wm, Lowe, a brother of the defendant. The witness watched the wagon until near night, but failed to see the man Jackson again. He then wrote on a piece of paste board, addressed to Jackson, alias Wm. Lowe, Jr., directions to return a certain bunch of cattle which he and defendant “fraudulently took,” etc., in order to save trouble, and threw the paste board in the wagon. The witness identified Wm. Lowe as the man Jackson, and defendant as J. T. Lowe who got the cattle. The appearance of Wm. Lowe at the last term of the court was much changed from his appearanee when he personated Jackson to get the cattle, and when the witness saw him at the mill. His whiskers and mustache, which were sandy when he got the cattle, and when he was seen at the mill, were dyed black, and he was well- dressed in a black suit at the last term of court.</p> <p>Robert Finlay, a brother of the prosecuting witness, was present during the transactions attending the delivery of the cattle to the assumed Jackson, and his sale of the same to defendant, and with regard to those transac • tions testified in substance as the prosecuting witness. He would not swear positively that Wm. Lowe and Jackson were one and the same person, but believed them to be.</p> <p>The testimony of the prosecuting witness showed, also, that about the close of the trade between defendant and Jackson, and after the latter had gone, Joe Bell rode up to the party and asked defendant what he and his companion, one Marks, were doing with the cattle, and that defendant said he had just bought them of a man named Jackson; that Bell asked if he took a bill of sale, and he replied no, that during his life he had never taken or given but one bill of sale. This evidence Bell corroborated. He testified, further, that on the day before these assurances and the alleged purchase, he saw the defendant on a bay horse, and the man Marks on a sorrel horse, riding around among his, witness’s, cattle, and Wm. Fin-lay’s and the stray cattle mentioned in the indictment. After examining the cattle for a time, the defendant and Marks rode up to the witness’s house, asked about the cattle, whose they were, etc. Witness told them some were his, some were Wm. Finlay’s, and that the bunch of muley animals were estrays which had been posted by Wm. Finlay. They again rode out to the bunch and critically examined them. Next morning, about 10 or 11 o’clock, the same two men, riding the same horses, rode up to witness’s house and asked him if he had cattle to sell. Eeceiving a negative answer they rode on to Wm. Finlay’s. The witness followed shortly, and found them with the bunch of cattle.</p> <p>Another witness testified to having seen the defendant in possession of the cattle described, and still another testified that, being asked what he intended to do about this prosecution, the defendant replied that if he could get Wm. Lowe to go with him, he would leave and go to Montana Territory.</p> <p>For the defense, Wm. Perry testified that on the day of the alleged theft, February 23d, he accompanied the defendant and Marks to hunt a cow of his which he proposed to sell defendant; that not finding the cow, he made a bill of sale conveying the cow to defendant, and received pay therefor. Wm. Lowe did not accompany them, but staid at Lowe’s house, where he was when the witness returned at eleven o’clock.</p> <p>A. M. Marks testified to the same fact as testified by Perry, and further, that after leaving Perry they, witness and defendant, went to Wm. Finlay’s, and after defendant bought a steer from Finlay, the latter introduced him, defendant, to a man named Jackson, from whom defendant bought the cattle in question, paying Jackson $57 therefor. The bay colt defendant had was the only stallion owned by any of the family, was only two years old and was not broken to harness. The horse ridden by witness (the dun or sorrel) would not work in harness.</p> <p>Other members of the family testified that the only stallion owned by defendant was a two-year old, unbroken to harness, and that Wm. Lowe did not leave the home-place on February 23d.</p>

Tried below before the Hon. Gr. J. Clark. Being convicted under an indictment for the theft of a mare, the defendant was awarded a term of seven years in the penitentiary, to begin when an antecedent term expired. The opinion sufficiently discloses the case.

Tried below before the Hon. A. 0. Cooley. The indictment charges the appellant with the murder of Martine Ortis, on September 1, 1881, by shooting him with a pistol. The jury found appellant guilty of manslaughter, and assessed his punishment at two years in the penitentiary.

Tried below before the Hon. I. B. McFarland. The indictment charged that the appellant, on or about the 28th of February, 1881, stole, took and carried away from the possession of Thomas Dever, the owner, four certain horses. The verdict pronounced the appellant guilty, and assessed his punishment at ten years in the penitentiary.

Tried below before the.Hon. I. B. McFarland. The charge was burglary with intent to steal, and a term of two years in the penitentiary was the punishment assessed by the jury.

Tried below before A. B. Watkins, Esq., Special Judge. The charge against appellant was the burning of J. C. Shelton’s gin-house, in Henderson county, on November 15, 1880. The jury returned a verdict of guilty, and assessed a five years term in the penitentiary as the punishment.

Tried below before the Hon. G. J. Clark. The indictment.charged the theft of a mule, the property- of B. H. Elder. The verdict was guilty, and the punishment assessed by the jury was five years confine; ment in the penitentiary. The opinion sufficiently discloses the case.

Tried below before the Hon. W. A. Blackburn. The indictment charged the appellant jointly with W. R. Russell, with the murder of John Lawrence, in Williamson county, Texas, on the 14th day of May, 1881. The trial of the appellant at the July term, 1881, of the District Court, resulted in a verdict of manslaughter, with the punishment assessed at two years in the penitentiary.

Tried below before the Hon. W. A. Blackburn. The indictment charged the defendant with perjury-before the grand jury of Lampasas county, at the November term, 1879, of the District Court of that county. He was convicted at the May term, 1881, and awarded a five years’ term in the penitentiary.

Tried below before the Hon. E. Lewis. The material allegations of the indictment are embodied in the opinion. The verdict of conviction assessed the punishment at a term of eighteen years in-the penitentiary.

Tried below before the Hon. J. K. Milam, County Judge. The indictment charged the theft of eight gallons of syrup, of the value of five dollars, the property of B. M. Camp. The appellant was convicted and his punishment was assessed at a fine of five dollars, and one hour’s confinement in the county jail.

<p>i. Peactiob.—A requested instruction to the jury was refused by the trial judge because it was not filed before it was presented. Held, no reason at all. •</p> <p>SyVfHBft—dr,atm of Right.—In a trial for theft the evidence showed that the defendant took the property openly and in the belief that he had a right to do so. Held, error to refuse an instruction for acquittal in case the jury so found the fact; and error to refuse a new trial.</p> <p>8. Peactiob.—Having no right of appeal in a criminal cause, the State has no right to a bill of exceptions.</p>

<p>1. Bail Bond described the offense as an “assault with intent to rob.” It is urged that this expression designates no offense under the law of this State, because not tantamount to “assault with intent to commit the offense of robbery.” But held that the designation used in the bond is correct.</p> <p>2. Interpretation op the Codes.—Article 3 of the Revised Penal Code amends the corresponding article of the original Code, and permits an act or omission to be “made a penal offense ” without being “ expressly defined.”</p> <p>3. Robbery and Assault with Intent to Rob are offenses specifically known to and defined by the Penal Code.</p> <p>4. Practice in the Court op Appeals.— If the final judgment on a forfeited bail bond be erroneous by reason of repugnancy between it and the judgment nisi, the error could be corrected on appeal, without remanding the case to the court below.</p>

Tried below before the Hon. P. F. Edwards. The death penalty was assessed in this case for the murder of Houston McMeans, in Anderson county, on the 6th day of March, 1881. The testimony of the various witnesses for the prosecution concerning the occurrences at the time of the killing is identical.

<p>1. Evidence—Time.—Information charged the commission of the offense on April SO, 1881. The trial was on August 3, 1881. The evidence stated the day of the offense as “April 80.” Held, sufficient as to time, though the year was not expressly in proof.</p> <p>2. Information against one party for “ loud and vociferous talking and assault” upon another may be based upon an affidavit which charged both the accused and the other with loud and vociferous • talking and with assault upon each other.</p> <p>3. Disturbing Religious Worship—Evidence.—A prosecution for disturbing a congregation assembled for religious worship will not be sustained by proof that the congregation, though disturbed, was assembled exclusively for business purposes, even though the proceedings were opened with religious exercises.</p> <p>4. Same.— See the opinion in extenso for evidence held insufficient to sustain a conviction, even had the information charged the proper offense.</p>

Tried below before the Hon. 0. 0. Potter. The indictment charged the theft, from M. R. Reynolds, of two hundred and ten dollars, on the 30th day of January, 1881. The verdict assessed a term of four and a half years in the penitentiary as the punishment.

Tried below before the Hon. W. B. Wall, County Judge. The prosecution was for fornication with one Fanny Simpson, and the punishment, on conviction, was assessed by the verdict at a fine of fifty dollars. J. A. Carley testified, for the State, that the Simpson women, mother and daughter, occupied a house in the rear of, and about forty steps distant from witness’s house and stables.

Tried below before the Hon. B. R Webb, Special Judge. The conviction in this case was for the theft of a certain red heifer, the property of J. P. Bateman. Two years in the penitentiary was the punishment assessed. J. P. Bateman, the prosecuting witness, testifying for the State, stated in substance that he was the owner of the animal alleged to have been stolen. He described the animal as a red heifer calf, with a white face and a red ring around one eye.

Tried below before the Hon. F. E. Macmanus, Special Judge. The opinion recites, in substance, the evidence for the State upon which the conviction in this case was had, except that the defendant, according to the testimony of one witness, denied to him that he participated in the assault. The facts stated, however, were testified by three witnesses. The punishment assessed was a term of seven years in the penitentiary.

Tried below before the Hon. J. F. Crow, County Judge. The conviction was for swindling, and the penalty was assessed at one hour’s confinement in the county jail. The opinion fully discloses the case.

Tried below before the Hon. L. W. Moore. The conviction in this case was for theft of a mare, the property of Mrs. Collins. A term of twelve years in the penitentiary was the punishment assessed by the jury. Mrs. Collins, for the State, testified that she lived near West Point, in Fayette county, Texas, and that her mare was taken from there, about July 31, 1881. The mare was taken in the night, and without witness’s consent.

Tried below before the Hon. Thos. M. Paschal/ The indictment was presented on December 6, 1881, and charged that, on the 1st of the preceding July, the defendant stole from Andreas Wucherer sixty-five gold pieces, current money of the United States, each of the value of twenty dollars. At the trial of the cause the jury found the defendant guilty and assessed his punishment at a term of four years in the penitentiary.

Tried below before the Hon. J. C. Stiehl, County Judge. The conviction in this case was had upon an information by which the appellants, T. J. Hill and Ellen Moore, were charged with fornication. The punishment assessed by the jury was a fine of $50 against each of the defendants.

Tried below before the Hon. E, Lewis. The conviction was for the theft of a cow, the property of Charles Gaebler, on the 3d day of April, 1881. The punishment assessed was a term of three years in the penitentiary. Charles Gaebler testified that he lived at Yorktown, in DeWitt county. In the spring of 1881 he was notified by the sheriff of Guadalupe county that the latter had some cattle in his charge at Seguin, in said county. In company with Messrs.

Tried below before the Hon. E. Lewis. This is the companion-case of J. W. M. Long v. State, ante, p. 381, the indictment being for the same offense,— - the theft of a .cow. Upon substantially the same evidence which in Long’s case is reported in full, the defendant • was convicted, and awarded a term of four years in the penitentiary.

Tried below before the Hon. E. Lewis. The defendant, and Collins and Thomas were jointly indicted for the theft of two yoke of oxen, from two different owners. Upon the application of Collins, a severance was had and the defendant placed upon trial. He was convicted, and awarded a term of two years in the penitentiary. James Hutchison was the first witness for the State.

Tried below before the Hon. J. C. Russell. The indictment charged the burglarious entry of the store house of D. Barreda, and the theft therefrom of two pairs of boots. The verdict of guilty assessed the defendant’s punishment at two years in the penitentiary.

Tried below before the Hon. A. J. Booty. The indictment charged theft of goods from a store house, of the aggregate value of fifty-four dollars. The trial resulted in the conviction of the defendant, and the verdict assessed his punishment at two years in the penitentiary.

Tried below before the Hon. A. J. Hood. The opinion fully states the case. The punishment imposed by the verdict was confinement for two years in the State penitentiary.

Tried below before the Hon. J. M. Haynes, County Judge. The conviction in this case was for libel. The prosecution was founded upon a complaint made by Adolphus Glaevaeke, the prosecuting witness, before the county judge, in the shape of an affidavit. There was no information based upon it. A fine of one hundred dollars was assessed as the punishment.

Tried below before the Hon. T. M. Paschal. The conviction was for the theft of two head of cattle charged in the indictment to be work steers. The punishment assessed was a term of four years in the penitentiary. The opinion sufficiently discloses the case.

Error from the County Court of Fort Bend. Tried below before the Hon. J. 0. Williams, County Judge. The case is sufficiently stated in the opinion of this court.

Tried below before the Hon. T. L. Nugent. The indictment was filed December 8, 1880, and charged that H. B. Whitworth, the appellant, did, on September 20, 1880, in the county of Erath, fraudulently take, steal, and carry away, from the possession of G. W. Jordan, one five-dollar United States currency note of the value and denomination of five dollars, and also two dollars of the current money of the United States, a more particular description of which was unknown to the…

Tried below before the Hon. L. W. Moore. ■ The indictment charged the murder of Joseph Hasselmeyer, on the 14th day of July, 1881. The conviction was for murder in the second degree, with the punishment assessed at a term of fifteen years in the penitentiary.

Tried below before the Hon. E. N. Wilson, County Judge. The conviction was for adultery, and a fine of $200 the punishment imposed on the appellant. The matters relevant to the rulings are disclosed in the opinion.

Tried below before the Hon. T. M. Paschal. The appellant was charged by indictment with the theft of one head of neat cattle, on the 1st day of July, 18T9. The possession of the animal was alleged to be in J. L. McKeen. The jury found defendant guilty, and fixed the punishment at a term of two years in the penitentiary.

<p>1. Murder—Malice.—"When the proof shows an unlawful killing, and no evidence has been adduced which tends to show express malice on the one hand, or any justification, excuse or mitigation on the other, the law implies malice, and the ofíense is murder of the second degree.</p> <p>2. Same.— Charge of the Court directed the jury, in the event of finding from the evidence that the defendant was guilty of murder in the second degree, to assess his punishment at confinement in the penitentiary for any length of time “ not less than five,”— the word “years” being omitted. Held, that the context supplies the omitted word, “years,” and that the omission could not have misled the jury.</p> <p>3. Manslaughter.—Adequate Cause is an essential element of the offense of manslaughter. In the absence of evidence tending to show the existence of adequate cause, the court did not err in refusing a charge upon manslaughter.</p> <p>4. Homicidal Intent.— Article 613 of the Penal Code provides: “That the instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed unless from the manner in which it was used such intention evidently appears.”</p> <p>5. Same.—Article 613 of the Penal Code provides that “if any injury be afflicted in a cruel manner, though with an instrument not likely under ordinary circumstances to produce death, the killing will be manslaughter or murder according to the facts of the case.” Articles 613 and 613 apply to cases where intent to kill evidently appears, or where such intent is evidenced by the cruelty of the manner in which the injury was inflicted.</p> <p>6. Same — Charge of the Court.— Article 614 of the Penal Code embodies the law of a case in which there was no intention to kill, and when the homicidal act was divested of the elements of an evil and cruel disposition. Under it the person offending may be prosecuted and convicted of any grade of assault and battery. Note the state of proof held in this case to necessitate a charge to the jury embodying the law as enacted in said article 614.</p>

Tried below before the Hon. L. D. Bradley. The indictment was presented in January, 1881, and charged that the appellant represented himself to be the owner of two work-oxen, and thereby induced A. J. Bell to sell and deliver to him a certain horse, and to accept a mortgage on the oxen as security for the price of the horse. Appellant was found guilty, and a term of two years in the penitentiary was assessed as his punishment. ■There is no statement of facts in the record.

Tried below before F. E. McManus, Esq., Special Judge. The indictment charged that Bruno Rosales, Nicolas .Ortiz, and Mauricio Carmisales, the appellant, on or about March 8, 1881, “in the State of Nuevo Leon, and in the Republic of Mexico, did then and there commit the offense of theft of horses and of property over the value of twenty dollars in lawful money of the United States, by then and there unlawfully and fraudulently taking and stealing from and out of the…

Tried below before the Hon. H. 0. Tompkins, County Judge. The indictment was as follows: “In the name and by the authority of the State of Texas, the grand jury of Waller county present in the District Court of said county that, about the 18th day of September, A. D. 1881, in Waller county, Texas, Gr.

Tried below before the Hon. S. D. Steedmah, County Judge. The opinion states the case. A jury was waived and the cause submitted to the court. Appellant was found guilty, and his punishment was assessed at a fine of $200. He moved in arrest of judgment on the ground that the indictment charged no offense, and because the amount of the tax was not alleged in the indictment. The motion was overruled, a new trial refused, and he appealed.

Tried below before the Hon. Edwbst Hobby. This appeal is from the conviction of Pat Lum, the appellant, for murder in the second degree, and the assessment of a term of fifteen years in the penitentiary. It was charged in the indictment that he and Ed. Green, on April 1, 1875, of their malice aforethought, did kill and murder one William Churchill by stabbing him on the back and shoulder.

Tried below before the Hon. J. C. Russell. The indictment charged that, on or about January 1, 1881, in the county of Nueces and State of Texas, the appellant did “unlawfully and fraudulently take and steal from and out of the possession of one Mateo Baladez, of the property of the said Mateo Baladez, five certain head of neat cattle, without the consent of the said owner of the said property, and with the intent to deprive the said owner of the value of the said property,…

Tried below before H. E. Eldridge, Esq., Special Judge. The indictment in this case was filed August 1, 1880, and charged that the appellant and Amanda White, on March 11, 1880, of their express malice aforethought killed and murdered Frank White by shooting him with a pistol.

Tried below before the Hon. L. 0. Alexander. The bail-bond is in the following language: “Know all men that we, Ed. Foster as principal, and J. M. McGhee, H. A. McGhee, and H. W. McGhee as sureties, acknowledge ourselves bound unto the State of Texas, the said principal in the sum of two hundred dollars, and the sureties in the sum of sixty-six 66-100 dollars each. “ The condition of the obligation is such that if the said Ed. Foster, principal, will make his personal…

Tried below before the Hon. Gustave Cook. This cause was decided at the Galveston term, 1881, but the record failed to reach the Reporters with the other cases of that term, and the transcript was destroyed by the fire which occurred in the court-rooms at Galveston, in January, 1882, and has never been received. The opinion of this court, however, seems to disclose all facts relevant to the rulings.

Tried below before the Hon. Edwin Hobby. The indictment charged that the appellant, on November 15, 1879, “did fraudulently represent to one J. A. Handley that he, the said Ervin, owned and possessed thirteen hundred pounds of seed cotton, and that if the said Handley would let him have thirty-five dollars worth of merchandise out of the store of him the said Handley that he the said Ervin would transfer and deliver to him the said Handley the said thirteen hundred pounds of…

<p>County Convicts.—In 1877 the appellant was convicted, of misdemeanor and adjudged to pay a fine and costs amounting to about ’ fifty dollars. Failing to pay he was hired out as provided by law, and the hirer gave bond to the county judge for payment of two dollars per month for the services of appellant until the fine and costs should be paid thereby. This contract was never annulled, but, after the lapse of more than four years, the fine and costs being unpaid by the hirer and his bond found worthless, a capias pro fine was issued and the appellant taken and detained by virtue thereof.</p> <p>Thereupon he sued out habeas corpus to the County Court, and on the hearing thereof the hirer was allowed to testify, over objection by the appellant, that he hired appellant for only two months. The County Court remanded the appellant into custody until the fine and costs should be fully paid; and from this judgment he appeals. Held, that the trial court erred in admitting parol evidence contrary to the conditions of the bond, and erred in not discharging the appellant from custody. Whatever may be the liability of the hirer, and notwithstanding the worthlessness of his bond, the fine and costs are settled so far as the appellant is concerned, and he is no longer liable for their payment.</p>

Tried below before the Hon. John 0. Russell. Held: and at that time knew all the facts she now swore to. She did not appear or testify at the inquest, because she was not sent for. She would not have come now if she had not been sent for; because she was not willing to go to court unless she was asked or told to do so.

Tried below before the Hori. L. D. Bradley. The indictment charged that on June J, 1881, the appellant fraudulently took, stole and carried away four hundred and forty-four dollars, the property of Mrs. R. E. Stephens. A description of the money was set forth in the indictment, showing all of it to have consisted of United States Treasury and national bank notes, except seventy dollars in United States gold coin, and nine dollars in silver.

<p>1. Theft—Evidence.—When the possession of recently stolen property is relied on as inculpatory of the accused, hia explanation thereof is admissible in his behalf though given after he had parted with the possession, provided it was given on the first occasion for any explanation by him. It is not material that the first occasion did not present itself until three or four weeks after he had parted ■ with the possession.</p> <p>2. Same — Charge of the Court.—It was in proof that the defendant was in possession of the stolen cattle soon after they were missed by the owner, and the defense adduced evidence of a purchase of them by the defendant. Counsel for the defense asked an instruction to the effect that the defendant’s possession was notan inculpatory fact if he purchased the cattle in good faith and believing his vendor had the right to sell them. Held that, whether the requested instruction was correctly framed or not, it sufficed to devolve upon the court the duty of giving to the jury the law which controlled the issue raised by the evidence.</p>

<p>Appeal from the District Court of Navarro. Tried below before the Hon. L. D. Bradley.</p> <p>The indictment charged the appellant and William Mc-Whorter with the theft of eight mares, four mules, and six geldings, the property of M. S. Finch, senior, and at the. same time and place, of two mares and one mule, the property of B. E. Finch. The time of the offense was alleged as March 15, 1877. In January, 1882, a trial of the appellant was had, and resulted in his conviction and the assessment of his punishment at a term of eight years in the penitentiary.</p> <p>The testimony in the case is prolix, and a detail of it is not necessary. The principal inculpatory evidence was to the effect that the appellant and William McWhorter, just before the animals disappeared, came to the neighborhood from which they were taken, and inquired who had horses for sale, and, after the animals were driven off, a prompt pursuit overtook them and the two Mc-Whorters near Dallas. A fight ensued between them and the pursuers, in which the appellant received a gunshot wound, and was arrested. The defense endeavored to prove a purchase of the animals, and, after the verdict of conviction, moved for a new trial on the ground of newly-discovered evidence. Much of the record consists of the affidavits and counter-affidavits relative to the motion. A new trial was refused, and the defendant appealed.</p>

<p>Appeal from the District Court of Brazos. Tried below before A. C. Brietz, Esq., Special Judge.</p> <p>The indictment was filed September 10, 1881, and charged that the appellant and Reuben Stillwell, about the 23d of the preceding July, did with malice aforethought kill Cicero Porter, by shooting him with a pistol. The indictment was framed in conformity with the act of March 26, 1881, called the “common-sense indictment act.” At the same term of the court the appellant alone was tried before a special judge appointed by the governor, in consequence of a notification that the regular-judge was disqualified to sit in the case. An order of the court was entered of record, reciting that the regular judge was second cousin of Reuben Stillwell, and therefore was disqualified and recused himself. The defendant filed a special plea, and alleged in it that the regular judge was not disqualified, and that the special judge had no jurisdiction to try him, the defendant. Counsel for the State filed an answer which in effect was tantamount to a general exception or demurrer to the plea. The trial court overruled the plea, and the defense reserved exceptions to the ruling. The defendant was then arraigned and pleaded not guilty. A trial ensued, and the jury found the defendant guilty of murder in the second degree, and assessed his punishment at a term of five years in the penitentiary.</p> <p>In the town of Bryan, county of Brazos, on the 23d of July, 1881, James Porter and Oliver Porter were shot and instantly killed in Hall’s saloon, of which, according to the testimony, Reuben Stillwell was an habitue. The trial from the result of which this appeal is taken was one of the consequences of the homicide. Many witnesses were examined by the State and by the defense, and their testimony is characterized by many circumstantial discrepancies, arising, doubtless, from their different stand-points and the prevailing excitement.</p> <p>J. P. Campbell was the first witness examined by the State. From his and other testimony, and a diagram, it appears that Nall’s saloon occupies the south half of a brick building, fifty feet wide, which fronts west upon Main street in Bryan. The north half of the building is separated from the saloon by a plank partition, and was occupied as a barber shop at the time of the homicide. On the south of the saloon, and adjoining it, is English’s store, and on the north of the barber shop, and adjoining it, is Hanway’s store. In the front of the brick building occupied by the saloon and barber shop there were three doors, by the most southern of which the saloon was accessible through self-closing lattice door-shutters. The most northern of the three doors entered the barber shop, and by the middle door access could be had either to the saloon or the barber shop, as the partition between them did not reach the front wall but left a door or passway between the saloon and the barber shop. On the outer edge of the pavement in front of the saloon stood a bench of which frequent mention occurs in the testimony.</p> <p>The State’s witness Campbell testified that as he was passing up the pavement in a northerly direction he observed that in front of the saloon the pavement was occupied by a crowd of men. The defendant Reed was sitting on the bench, and Dr. Erwin was standing about the middle of the pavement. The defendant said, “Let’s fight it out right here,” and Erwin replied “All right.” The defendant got up, advanced, and knocked Irwin down. James Porter was then standing between the defendant and the door of the saloon, and the defendant, on knocking Erwin down, turned so as to approach close to James Porter, who struck at the defendant with a pair of saddle-bags. The witness thought that the saddle-bags “brushed” the arm of the defendant, who thereupon seized James Porter and pushed him through the lattice doors and into the saloon, and while so doing was drawing a pistol from his own hip-pocket. The lattice doors immediately closed behind them, and the firing began at once. The witness heard three shots, and then saw Reuben Stillwell run out of the saloon and on to the pavement, bare-headed, in his shirt sleeves, and with a pistol in his hand. For a moment Stillwell stood on the pavement, with his pistol presented as if he was sighting it through the lattice door, and then went back into the saloon. After Stillwell got back into the saloon, the witness heard two more shots in the saloon. The first three shots were fired near the front and the last two about the middle of the saloon, but witness could see none of the parties inside the saloon at the time. After the firing ceased he went into the saloon, and in the space between the front wall and the end of the counter saw James Porter lying dead. About twenty feet from the front of the saloon, and in front of the counter, lay Cicero Porter, dead. The last two shots came from the spot at which he lay, and the witness thought he heard Cicero Porter halloo “ Oh Lord,” when they were fired. James Porter was shot in the head, and Cicero in the left side. When the difficulty began the witness was on the pavement in front of English’s store, and when the shooting began he stepped into English’s north door, which was about four feet from the lattice door through which the defendant and James Porter went into the saloon.</p> <p>On his cross-examination the witness re-stated the brief colloquy between the defendant and Dr. Erwin, thus: “ Defendant said ‘Let’s fight it out;’ Erwin said if he had defendant out of the corporation he could whip him; defendant said ‘Let’s fight it out here;’ Erwin said ‘all right.’” The witness stated that when the defendant struck Erwin and knocked him down, Erwin was revolving his fists around each other. Witness was certain that when the defendant and James Porter passed through the lattice doorway, the latter was foremost but was moving backwards, and the defendant had his hand on him. When the first three shots were fired, Erwin was lying face upwards on the pavement, but when Stillwell came out of the saloon, just after the third shot, Erwin got up and took a seat in the door of the barber shop. Witness was standing in English’s door, and could see up and down the pavement. He thought James Porter was killed when the first three shots were fired. When the defendant and James Porter went into the saloon, five or" six other persons also went in; some of them entered through the door next to the barber shop. When witness came up to the crowd in front of the saloon Erwin and the defendant were talking. ■ Erwin seemed to be smiling, and told the defendant to “pitchin,” or “hit me first.” Defendant did not strike Erwin with a pistol, but with his fist. Stillwell came up just in front of the witness, spoke to the crowd, and went into the saloon; he seemed to have just gotten off his horse. Witness did not observe Cicero Porter enter the saloon; he did not know Cicero Porter at that time. Defendant’s pistol was short and chunky; it was a bright pistol about five or six inches long. On his re-examination the witness said he did not pretend to describe the defendant’s pistol. He saw the bodies of the deceased immediately after the shooting, but did not examine to ascertain whether they were armed. James Porter’s head, witness thought, was lying on the saddle-bags.</p> <p>Willie Wood, for the State, testified that he had been present but a few moments when the difficulty began. Defendant and Erwin were quarreling; Erwin said if he had the defendant out of town he could whip him. Defendant said he would not go, and that there was as good a place as any. Erwin said “square yourself.” Defendant got up and approached Erwin, and the latter said “sail in.” Defendant knocked Erwin down, and then James Porter struck at the defendant with saddlebags, and they went into the saloon scuffling. Witness thought but was not certain that the defendant went in foremost. While Erwin and the defendant were quarreling, Cicero Porter was standing on the sidewalk. James Porter stepped out of the saloon just as the defendant struck Erwin. Cicero Porter went into the saloon through the door next the barber shop. When the defendant and James Porter got inside the saloon, the latter and Stillwell got together, and the defendant went towards the back end of the room. Witness was then standing with his head between the lattice doors just far enough to see; but as he observed the defendant going towards the rear of the room some person from the inside ran against witness and knocked him outside the doorway. Witness heard Cicero Porter say, “Lucian, don’t shoot me, I am not armed; ” and immediately a shot was fired, and Cicero Porter said, “Oh Lucian, what did you shoot me for, and me not armed.” (Defendant, it seems, was usually called Lucian, presumably his middle name.) Witness knew Cicero Porter’s voice well, and could not be mistaken about it. The exclamations came from about the middle of the room, where the body of Cicero Porter was found. There were two shots fired after Cicero Porter asked the defendant not to shoot him. The last that the witness saw of the defendant, the latter was about six feet from where Cicero Porter’s body was found, and he was still going in that direction. Witness did not see any of the shooting.</p> <p>On cross-examination the witness said he was a second cousin to James and Cicero Porter. The defendant knocked Erwin down with his fist. Witness was sitting in a chair on the sidewalk, between the main door of the saloon and the door next the barber shop, and Erwin’s head when he fell was close to witness’s feet. Ten or fifteen persons were sitting or standing on the sidewalk, and they began to scatter when the defendant struck Erwin. James Porter struck the defendant’s head or shoulders with the saddle-bags, and they seemed tolerable heavy. Cicero Porter was then standing at the door next the barber shop. Witness did not see the defendant draw a pistol, and thought if he had drawn one before going through the lattice doors, he, the witness, would have seen it. Defendant was in front of James Porter as they went in, and had hold of him .with his left hand. Witness saw James Porter, Stillwell, and the defendant inside the saloon, but not Cicero Porter. The witness denied that he had made certain statements inconsistent with portions of his testimony, and in some particulars was subsequently contradicted with respect to them by witnesses introduced by the defense. In his re-examination he stated that he could not see the right hand of the defendant as the latter went into the saloon. Defendant’s back was towards James Porter as they went in. On re-cross-examination he stated that the defendant drew no pistol up to the time he entered the house.</p> <p>J. P. Semones, for the State, testified that he went into the saloon very soon after the shooting. Both James and Cicero Porter were still breathing when witness went in. He examined the bodies and pockets of both of them, and found no weapon upon either. A pair of saddle-bags was lying under James Porter’s legs; a pistol was’in one end of them, and a bundle of merchandise was on top of the pistol. Witness stated that the flap of that end of the saddle-bags was down, but whether it was buckled down or not he could not say. The other end was buckled down. Cicero Porter’s body lay in front of the counter and about midway the saloon, with the head towards the counter. James Porter lay between the end of the counter and the front of the house, with the head next the south wall. Cicero Porter was shot in the left side, and his clothing was powder-burned.</p> <p>Dr. J. S. Pugh, for the State, testified that he saw the bodies of the two Porters, about an hour and a half after they were shot. James had been shot first in the top of the head, and then the muzzle of the pistol had been pushed into the hole made by the first shot, and a second shot fired, bursting the skull and scattering the brains. Cicero was shot between the fourth and fifth ribs on the left side, perforating the apex or lower end of the heart. His clothing was powder-burned for a considerable space around the spot where the ball entered. On cross-examination the witness stated that statistics show that of persons shot through the left ventricle of the heart (as was Cicero Porter) only eighteen per centum spoke afterwards, and they spoke rapidly. An acute sense of hearing was necessary to understand anything said under such circumstances. A person so shot could articulate for only a few seconds, and, in witness’s opinion, could not speak distinctly enough to be understood outside of the room. The words would come out like bullets, and, to hear and understand them, the listener would have to be very near and the room quiet. The witness expressed a positive opinion that nothing said by Cicero Porter after he was shot could have been heard and understood by a person standing on the pavement in front of the saloon in which the shot was fired. On his re-examination the witness was of opinion that a person shot as was Cicero Portei might have spoken in an audible voice at any instant within thirty seconds. James Porter could not possibly have spoken after he was shot.</p> <p>James Gates, for the State, testified that he was in the •saloon soon after the two Porters were- shot, and before they died. Thomas Erwin picked up the saddle-bags, and witness examined them, and under some bundles of goods in one end he found a pistol. When Thomas Erwin picked up the saddle-bags he unbuckled the end in which the pistol was found. Neither of the Porters had any weapons about their persons.</p> <p>J. L. Mayo, for the State, testified that at the time of the homicide he was sheriff of the county, and was passing along at a distance of about seventy-five yards north of Mali’s saloon when the shots were fired. Hearing them and the scream of a man as if mortally wounded, witness ran towards the rear door of Mall’s saloon. Defendant came out of that door and ran northward towards Hearne’s saloon. Witness ran after the defendant and called on him to stop, and arrested him near Hearne’s rear door, about a hundred yards from Mall’s saloon. Defendant had no weapons about him then. Between his right thumb and fore-finger, and for about half their length, there was powder-burn. On cross-examination the witness said that the defendant did not stop when he first called on him to do so, nor until after witness had called upon others to stop him. Defendant was in ten steps of Hearne’s saloon when he stopped, and then he came and met the witness.</p> <p>W. E. Harris, for the State, testified that he was a deputy sheriff at the time of the homicide, and was in Mall’s saloon five minutes after the shooting of the Porters. Being informed that a pistol was concealed in a box in the back room of Mali’s saloon, he searched and found one concealed in some saw dust. It was a Colt’s double-action pistol, nickel-plated, but a little rusty. -Two barrels of the cylinder had been recently discharged, and the hammer of the pistol was resting on one of the exploded cartridges. The other barrels were loaded.</p> <p>Thomas Erwin, for the State, testified that he was in the saloon a few minutes after the shooting. The saddlebags were lying under James Porter’s thighs. Witness took them up and examined their contents. In one side of them there was a pistol, and on top of it a bundle which seemed to be a dress-pattern. That side of the saddle-bags was buckled down, and witness thought it was he who unbuckled it.</p> <p>George Pletzer, for the State, testified that he was in the saloon within a few minutes after the shooting, and saw R M. Rail, William King and another man in the back room of the saloon. A pistol was lying on the floor in the corner next the front room. One of the men picked up the pistol, and Rail put it in a box and covered it with saw dust. Witness at once informed Deputy Sheriff Harris, and saw him take the pistol out of the saw dust.</p> <p>B. H. Knowls, for the State, testified that when the Porters were killed he was eighty or ninety yards southwest of Rail’s saloon, and could plainly see the front of the saloon. He heard shots, and saw Reuben Stillwell come out of the saloon, walking backwards, with a pistol in his hand, and then step bank into the doorway, and with his left hand hold open the north side of the lattice door. Just as he did so, the witness heard a shot back in the saloon, and thought he heard some one halloo there. Stillwell dodged a little to one side, and then presented his pistol rather across the door and towards the comer at his right. Witness heard another shot, and saw smoke about Stillwell. On cross-examination the witness said he could not say positively who fired the two shots of which he spoke, but he was satisfied that Stillwell did not fire the first of those two shots. It was fired in the interior of the saloon while Stillwell was standing in the front door. With the testimony of this witness the State closed.</p> <p>Wiley James was the first witness introduced by the defense. He stated that he was sitting on the bench and alongside of the defendant before the difficulty began. Stillwell came up and took a seat by the defendant. James Porter and several other persons were there. Cicero Porter and Dr. Erwin came up, and the latter asked defendant if he was “on the fight.” Then Dr. Erwin and Cicero went into the saloon, and directly they came out again, and Dr. Erwin said to the defendant, “ Cicero says he can whip you, and I second it.” Dr. Erwin cursed defendant, called him a d—d rascal, and told him that if - the Porter boys couldn’t whip him he could. Cicero Porter said to the defendant, “ I had nothing against you, but you acted the d—d rascal.” James Porter said, “Yes, you did.” Defendant said, “Maybe so.” Then Stillwell said to the defendant, “Do you acknowledge that what they say is true?” Defendant said, “Yes,” and then Stillwell said the Porters ought to be satisfied, and both the Porters said they were satisfied. When James Porter came out of the saloon he said: “Lucian, why didn’t you ask me what I wanted to whip you for ? I could have told you, d—d quick.” He also told defendant that he had gone to the barbecue last week to see him, but did not find him. Defendant replied, “You have been hunting me, have you?” and James Porter said, “ Ho, but I thought I would see you and we could settle it.” The defendant told Dr. Erwin he was not afraid to fight him, but did not want the whole mob to jump on him. Stillwell said he was a friend to both parties, and the mob should not jump on defendant. The Porters said they would not jump on the defendant. Dr. Erwin was standing about the middle of the sidewalk and in front of the defendant, who was sitting on the bench at the outer edge of the sidewalk. Erwin cursed the defendant for three or four minutes, and the defendant got up, started towards Erwin, and began to pull off his coat, but did not do so. Erwin told defendant to hit him first, and the defendant knocked him down. Witness’s attention was then turned to Erwin, and he did not see the defendant go into the saloon. He thought Cicero Porter went into the saloon through the door next the barber shop. James Porter and Dr. Erwin were drinking; the defendant was sober. When the firing began, the witness ran and stood in the door of Hanway’s store, and as he passed the north door of the saloon he looked in and saw the defendant and Cicero Porter near the front end of the counter. Witness thought Cicero Porter had hold of defendant’s back, but the witness added that Cicero may have been “ trying to part them,”—meaning, it is inferred, the defendant and James Porter. About three-quarters of an hour before the difficulty the witness saw the defendant and Cicero Porter at Dunn’s saloon, and heard defendant then ask Cicero what James Porter wanted to whip him for. Witness, apprehending a difficulty, told them that they had been good friends, and pught not to fall out about something Jim Porter had said. They both said no, and the matter was dropped. Witness did not see Willie Wood on the pavement during the shooting, nor did he see Stillwell come out of the saloon with a pistol in his hand, and then return.</p> <p>John Smith, for the defense, testified that when the difficulty between defendant and Dr. Erwin began he was in the door or on the sidewalk before English’s store, and was eight or ten feet from the crowd in front of Mall’s saloon. Witness first heard Erwin cursing the defendant. Speaking to the defendant, Erwin said, “We can whip you.” The defendant replied, “Say what you have got to say, and go on; I can’t fight.” James Porter said to the defendant, “ G—d d—n you, I went to the barbecue to hunt you and didn’t find you, and I have come here to-day to hunt you, and now I have found you and you won’t fight,—you won’t settle it, and you won’t name your time and place.” Defendant replied: “You went to the barbecue and you came to town to hunt me, did you?” James Porter said: “Mo, not particularly to hmit you, but to see if we couldn’t settle it.” Cicero Porter said to the defendant: “You have acted the s-, and the G—d d—n s-■, and we can whip you.” Erwin said Cicero Porter could whip defendant, and what Cicero couldn’t do he, Erwin, could. Stillwell said he was a friend to both parties, but that the whole crowd should not jump on the defendant. Erwin began cursing the defendant again, and defendant got up and said to Erwin, “You hit me.” Erwin replied, “No, you hit me,” and then the defendant knocked Erwin down, and turned to go into the saloon. As he turned, James Porter struck Mm over the head with the saddle-bags. Defendant and the two Porters rushed into the saloon, and witness went into English’s store. He heard the parties fall inside the saloon door. He started towards the back door of English’s store and heard two shots fired in Nall’s saloon; and then he turned back towards the front of English’s store, and before he reached the front door he heard two more shots fired in Nall’s saloon. Witness saw Reuben Stillwell out on the sidewalk with a pistol in Ms hand. This was the only pistol seen by the witness in the hands of any of the parties. If the defendant had had a pistol during the incidents related, the witness thought he would have seen it. While going into the saloon the defendant was in front of James Porter, and the latter had hold of him. On cross-examination by the State, the witness said that while the shooting was going on, he heard some one in the saloon cry out “Oh, oh,” several times. When the parties went into the saloon he heard a slam, and thought they had fallen.</p> <p>Billy Boyett, for the defense, stated that he was inside the saloon at and before the beginning of the affray. Just before the fight began, James Porter came into the saloon with his saddle-bags. Holding them with his left hand, he had his right hand below the counter and seemed to be unbuckling the saddle-bags. Somebody asked him what he was going to do, and he said something about a cigar. On his cross-examination the witness stated that he did not know whether James Porter was unbuckling his saddle-bags or not; witness could not see Porter’s hands at the time. Witness is a brother-in-law of the defendant.</p> <p>Charles Needham, for the defense, stated that he was present while Dr. Erwin was ‘ ‘ bemoaning ” the defendant in front of the saloon. Defendant said: “Dr. Erwin, you must want to whip me mighty bad.” Erwin replied: “Yes, I will whip you if you will come out of the corporation.” The defendant said they could fight as well where they were, and then Erwin said, “spread yourself then.” Defendant got up and told Erwin to hit him first, and Erwin replied, “No, you hit me;” and then the defendant struck Erwin and knocked him down. James Porter struck the defendant with his saddle-bags, and defendant caught him by the arm and pushed him towards the saloon door. Cicero Porter caught the defendant by the neck and shoulders, and all three of them went into the saloon scuffling. James Porter was the foremost of the three, but he went in backwards, and kept running his hand into his hip-pocket. Witness ran into English’s store. The combatants fell as they went into the saloon, and the firing began as soon as they got in. Witness heard three or four shots. He did not see defendant have a pistol, and, as he watched the defendant, he thought he would have seen one if exhibited by the defendant. Witness did not see Willie Wood that day. On cross-examination the witness stated that he did not hear either of the Porters say anything. When James struck defendant with the saddle-bags each of them clenched the other by the arms, and they went into the saloon that way, James Porter being foremost and the defendant pushing him. Cicero caught defendant by the shoulders as they went into the saloon. Witness had never told any one that Cicero Porter went into the saloon through the door next the barber shop.</p> <p>Jim Curry, for the defense, testified that he and others, besides the defendant,were sitting on the bench in front of the saloon when Cicero Porter and Dr. Erwin came up, and the latter told the defendant that what the Porter boys could not do he could, and to name his time, form and place and he, Erwin, would be ready for him. Defendant said, “Doctor, you must want to whip me mighty bad.” Erwin said, “I do, and if you don’t think I can do it, get up.” Defendant said he could not fight the whole crowd, and Stillwell said he was a friend to both parties, and the whole crowd should not jump on defendant there. Defendant got up and knocked Erwin down, and then turned to go off and James Porter struck him over the head and shoulders with the saddle-bags • Defendant and the Porters then rushed into the saloon, the former in front, and James Porter continuing to strike him over the head and shoulders as they went in. Before the defendant struck Erwin, Cicero Porter said that defendant had acted the d—d rascal, and James Porter said that defendant had acted more than the d—d rascal. Witness got up when the defendant did, and when the latter struck Erwin the witness ran into English’s store. After witness got in English’s store, he heard a noise as if the combatants had fallen into the saloon, and heard a voice say, “I don’t want to hurt you but you must not crowd me.” Witness thought it was Stillwell who said this, but he did not know Stillwell’s voice, though they had met frequently. Witness heard four shots. On his cross-examination the witness reiterated positively his statement that James Porter was striking defendant with the saddle-bags as they were going into the saloon, and that the defendant was in front, with his back to the Porters, and was followed by both of them.</p> <p>Wash Utzy, for the defense, stated that when he got in front of the saloon on the day of the homicide Dr. Erwin was cursing the defendant, who said, “Dr. Erwin, you must want to whip me mighty bad.” Erwin replied “No, I don’t want to do it, but I can do it,” and snapped his fingers in the defendant’s face. Erwin said if the defendant would go out of the corporation he could whip him; to which the defendant replied, “No, this is as good a place as any.” Then Erwin told the defendant to “square” himself, and the defendant got up and knocked Erwin down. James Porter then struck the defendant over the head with the saddle-bags. Defendant went into the saloon with James Porter following him. Witness caught James Porter by the coat, and tried to keep him from going into the saloon, but he went in and pulled witness in after him. As soon as they got inside Eeuben Stillwell shot at James Porter, who turned towards Still-well and said “what are you shooting me for,” and Still-well immediately shot James Porter in the top of the head, spattering his brains upon the witness, who then ran out of the saloon and into English’s store. He saw no one in the door as he came out. James Porter had got near the corner of the counter when the first shot was fired by Stillwell, who was standing between the end of the counter and the front of the saloon, and against its south wall, and was on the right of James Porter when he fired. Witness’s attention was so engrossed by them that he did not see the defendant and Cicero Porter after they got inside. Defendant had no pistol so far as witness saw. Before defendant struck Erwin, James Porter said to the defendant, “You acted the d—n rascal with me this morning, and that is all I have to say about it.” Witness did not see Willie Wood there.</p> <p>On his cross-examination the witness said he was certain that James Porter and the defendant did not have hold of each other as they went into the saloon, and that the former was not then striking at the latter with the saddle-bags. Defendant was three feet ahead of James Porter, who, as he entered the saloon, held the saddlebags with his right hand, and hanging down by his side; and he made no effort to use them, open them, or take anything out of them. Nor did James Porter run his hand in his hip-pocket as he went into the saloon; witness had hold of him, and, had he done so, would have known it. Cicero Porter did not catch defendant by the shoulders, or have his hand on defendant, when the latter was going into the saloon. Witness was certain that Cicero did not go into the saloon at the same door as defendant and James Porter, though witness could not say by what entrance Cicero did go in. This witness did not see Jim Curry or Wiley James there.</p> <p>Tom Nunn, for the defense, stated that in the morning of the day on which the Porters were killed they and the defendant were at Dunn’s ten-pin alley. James Porter and William King were rolling ten-pins, and Dr. Erwin was betting on the former, who told Erwin not to bet on him, as he couldn’t play. Erwin said that he couldn’t play, but he could whip the defendant, and James Porter said “lean do that myself.” James Porter and Erwin soon left the alley, and the defendant asked Cicero Porter what James wanted to whip him, defendant, for, and said he had nothing against the Porters. Cicero replied that until a few days before that time he had nothing against the defendant, but that defendant had acted the d—d rascal.</p> <p>On the cross-examination of this witness he said that the conversation between defendant and Cicero Porter at the ten-pin alley occurred three-quarters of an hour before the difficulty at Nall’s saloon. Cicero said that the defendant had acted the d—d rascal about “that picture,” and said that the defendant was a dirty dog; but did not say what picture. Defendant said “ that is durned hard to take, and I have taken enough,” and got up from where he was sitting. Some one caught him, and he said “What do you mean? turn me loose.” He was turned loose, and then some one got hold of Cicero Porter. State’s counsel asked the witness if Cicero Porter did not say that the defendant had acted the d—d rascal in mutilating a picture of Porters sister and sending it to her with an insulting note. The witness replied that Cicero Porter said nothing about a note or whose picture it was. Witness stated that the defendant, previous to the altercation at the alley, said to him, the witness, that he, defendant, had done wrong in tearing up the picture and sending it to Miss Porter. When William King and James Porter were rolling ten-pins Erwin said “we can whip Lucian Reed,” and James Porter said: “It don’t take we to do it; I can do it myself.” The witness insisted that in his examination in chief he did not say that Erwin’s expression was that he could whip defendant. Defendant and James Porter seemed to be friendly at a previous meeting between them that same morning. After the Porters left the ten-pin alley the witness told defendant he was the biggest coward he ever saw, taking the abuse he had.</p> <p>Charles Sibrell, for the defense, testified that he saw Dr. Erwin take a new pistol out of a desk in Tom Erwin’s store in Bryan, the day the Porters were killed; but did not know whether Erwin carried the pistol out of the store or not.</p> <p>Jack Buchanan, for the defense, stated that he saw the two Porters, Dr. Erwin and defendant together on horses in Bryan, the morning of the homicide. Witness asked James Porter what was up, and James Porter said they were going to have a race, and asked witness if defendant’s horse could ran fast. Witness told him that the defendant’s horse could beat his, Porter’s, horse mighty bad. James Porter said he did not care,— he would run the race anyhow. Dr. Erwin said, “Come on, let’s go,” and then the defendant said, “Let’s wait for Kail and Stillwell.” Erwin rejoined, “D—n Kail and Stillwell, we don’t want to wait for them; let’s go and run the race.” Witness was a neighbor of defendant, and had known him several years; had never heard him spoken of as a violent or dangerous man, but had never heard his character or reputation in that respect called in question or discussed' among his neighbors. The defense, after contradicting by several witnesses some denials made by the State’s witness Willie Wood, closed the evidence in the case with the testimony of several other neighbors of the defendant, respecting his reputation for violence or the contrary. They concurred in stating that his reputation in that respect had not been a matter of discussion one way or the other.</p>

Tried below before the Hon. A. S. Walker. By the minutes of the trial court it appears that an indictment was presented by the grand jury of Travis county on May 23, 1881, against the appellant and H. M. Peck, for forgery. On December 12, 1881, the county attorney filed a written suggestion of the loss of the indictment, and asked leave to substitute it.

Tried below before the Hon. Everett Lewis. The indictment was presented on June 22, 1881, and, after alleging that Cal Cohea, on April 23, 1881, burglariously entered the dwelling house of George W. Carraway in the night-time, without the consent of said owner and with the intent to steal, take and carry away a gun and a sack of flour, it proceeded to charge that Thomas Cohea, the appellant, did “on the said 23d day of April, A. D. 1881, and prior to the commission of the…

Tried below before the Hon. John C. Russell. Theft of ninety-two sheep, the property of William Cody, was the offense charged in the indictment. The alleged date of the theft was January 13, 1881. The jury found the defendant “ guilty as charged in the indictment,” and assessed his punishment at a term of two years in the penitentiary. William Cody, for the State, testified that he lived on the Oso creek in Nueces county.