Volume 12 — Texas Court of Appeals Reports

Tried below before the Hon. Gustave Cook. The indictment in this case was. presented July 14, 1881, and charged that Henry Homberg, the appellant, did, on May 26, 1881, with a certain pistol, and of his malice aforethought, unlawfully, wilfully and feloniously Trill and murder Barbara Homberg, in the county of Galveston, by shooting her in the stomach. The cause was tried in the ensuing November, and appellant was convicted of murder in the second degree.

Tried below before the Hon. J. C. Williams, County Judge. Appellant was charged by information with wantonly killing a horse, the property of K. W. Davis, in June, 1879. The jury found him guilty, and assessed his punishment at a fine of §100. A clear and compendious statement of the case is given in the opinion of this court. From the stand-point of the defense, however, the evidence in detail seems requisite. Defendant and the female witnesses were colored people.

Tried below before the Hon. J. Abbott. The indictment was presented on June 3, 1880, and charged that the appellant, on May20, 1880, did, of his malice aforethought, wilfully and feloniously kill and murder John Waggoman, with a certain knife. The cause came to trial in December, 1881, when the appellant was found guilty of murder in the second degree, and his punishment assessed at a term of five years in the penitentiary.

Tried below before the Hon. E. N. Wilson, County Judge. The prosecution was for aggravated assault and battery, and the punishment assessed was a fine of $25. The information, as originally drawn, charged that the affidavit showed the inculpatory acts, instead of itself charging them. The so-called amendment allowed the county attorney to interpolate the words “by this information,” so as to obviate the defect.

Tried below before the Hon. J. C. Russell. The indictment charged the appellant and one Eoque Tomayo with the theft of a cow. The latter, it appears, was tried first, and the appellant refused to testify against him, as he had agreed with the county attorney he would do on condition of his own immunity from prosecution. When the agreement was made the appellant was in jail, and he then confessed his own participation with Tomayo in the theft of the cow.

Tried below before the Hon. George H. Aldrich. The indictment charged that the appellant, on June 5, 1881, made an assault and battery on E. A. Forrester, with the intent, by putting said Forrester in fear of his life and bodily injury, to take from his person and possession his money, goods and personal property, without his consent, and with intent to deprive him of their value, and to appropriate the same to the use and benefit of him, the appellant; contrary, etc. The…

Tried below before the Hon. L. D. Bradley. The indictment charged that the appellant, on April 11, 1881, burglariously broke and entered the dwelling house of Crocket Phillips, with intent to steal, and that he stole therefrom two sides of bacon. The jury found appellant guilty, and assessed his punishment at two years in the penitentiary. The opinion of the court discloses such facts as are involved in the rulings.

, Tried below before the Hon. W. E. Collard. The indictment seems to have been drawn under the “ common-sense indictment ” enactment of 1881, and reads as follows: “In ihe name and by the authority of the State of Texas: “The grand jury of Milam county present in the District Court of said county that, about the fifteenth day of July, A. D. 1880, in Milam county, Texas, Henry Bullock and James Bullock did wilfully burn a certain gin-house, the property of J. W. McCown;…

Tried below before the Hon. L. D. Bradley. The indictment charged the appellant with theft of a saddle, bridle and halter, worth $26, the property of T. J. Fields. By the verdict of conviction the punishment was assessed at a term of two years in the penitentiary.

Tried below before the Hon. J. C. Russell. The indictment in this case was filed in the District Court of Cameron county, January 3d, 1882. It charged the defendant and Befugio Gomez jointly with the theft from the tailor shop of Andreas Fierling. of dress goods over the value of twenty dollars. The trial of this defendant resulted in his conviction, and the punishment awarded him by the jury was a term of two years in the penitentiary.

Tried below before the Hon. L. W. Moore. At page 435 of Volume 8 of these Reports will be found the case of Henry Loggins v. State, on appeal from a former conviction for murder in the first degree and an assessment of a life-term in the penitentiary. The present appeal is from a second conviction and a similar assessment.

Tried below before the Hon. C. C. Potter. By bill of indictment returned into the District Court of Denton county, Texas, September 14, 1881, the appellant was charged with the murder of Henry Williams, on July 7, 1881, The trial resulted in a verdict of murder in the first degree, with a life-term in the penitentiary awarded as punishment. The difficulty which culminated in this homicide grew out of a proposed wrestling-match between the defendant and the deceased.

Original Motion in the Court of Appeals to retax costs. The original papers in this motion were destroyed by fire, .at Galveston, and those which have reached the hands of the Reporters do not disclose the attorneys pro and con the motion.

Tried below before the Hon. W. S. Moore, County Judge. Appellant was charged by indictment with an aggravated assault and battery on Fannie Snowden, a female. The jury found him guilty, and assessed his punishment at a fine of $25. The young lady herself was examined as a witness, and her testimony is given in full in the opinion of this court. It comprises all the material facts.

Tried below before the Hon. Ernest Koebig, County Judge. By information filed in the County Court of Comal county the appellants, August and Frederick Michel, were charged with obstructing a public road known as the Mountain Selma road in said county. They were found guilty by a jury, who assessed their punishment at a fine of twelve dollars and a half against each of them.

Tried below before the Hon. T. C. Goodner, County Judge. A fine of ten dollars was the punishment imposed on the appellant. The opinion discloses the state of the proof.

Tried below before the Hon. A. J. Hood. The indictment charged that the appellant, on July 11, 1881, made an assault upon E. E. Work, with intent to murder him. The conviction was for aggravated assault, and a fine of §100 the punishment assessed. E. E. Work, testifying for the State, said that while he was riding in a certain field in June, 1881, he approached the bluff of a creek, and from there saw a man engaged in an act of bestiality with a mule.

Tried below before the Hon. John Alexander, County Judge. A fine of ten dollars was the penalty assessed against the appellant. This case was decided at the Austin term, 1881, of this court, but did not then reach the hands of the Reporters.

Tried .below before the Hon. W. O. Read, County Judge. The conviction was for exhibiting a monte bank, and the punishment assessed was a fine of §25.00.

Tried below before the Hon. Joseph Bledsoe. On November 25, 1881, the grand jury of Grayson county presented an indictment whereby they charged • that the appellant, on June 8, 1881, fraudulently took, stole and carried away three horses from the possession •and without the consent of John Parish, the owner, in the Indian Territory, and that, on June 10, 1881, he unlawfully and feloniously brought the said horses into the county of Grayson, State of Texas.

■ Appeal from the District Court of San Augustine. Tried below before the Hon. P. F. Edwards. Jule Williams, the appellant, was charged by the indictment with the offense of rape upon Handy Burrell, a female under the age of ten years, on June 24, 1881. Both of those parties and most of the witnesses were negroes. The jury found the appellant guilty and assessed his punishment at a term of five years in the penitentiary.

Tried below before the Hon. Z. T. Fulmore. The conviction was for demanding higher fees than the appellant, as district surveyor, was entitled to receive. A fine of. ten dollars was the punishment assessed against him.

Tried below before the Hon. C. C. Scruggs, County Judge. The case is fully stated in the opinion. The punishment assessed against the appellant was a fine of ten dollars and imprisonment for ten days in the county jail.

Habeas Corpus on appeal from a judgment in chambers rendered by the Hon. W. H. Burkhart, Judge of the 18th Judicial District. On February 24, 1882, the appellant applied to Judge Burkhart for the writ of habeas corpus, alleging in his petition that he was restrained of his liberty by the sheriff of 'Fort Bend county by virtue of a copias based upon an indictment charging him with the murder of Theophilus Smith.

Tried below before the Hon. J. P. Hall, County Judge. Appellant was found guilty of aggravated assault upon Barbara A. Jones, his wife, on June 25, 1880. Held: on to the pan. He then pulled me down by the hair of the head, hit me over the head with a plank, pushed me down on the hot stove, and shoved me out of the kitchen backwards. I got up instantly and went back into the kitchen, took up the pan, sifted the meal and put on the bread.

<p>Appeal from a Satisfied Judgment.—Having been convicted of misdemeanor and adjudged to pay a fine and the costs, the defendant paid the fine and costs and then moved for a new trial; which was refused and he gave notice of appeal. Held, that after satisfying the fine and costs there was nothing for the defendant to appeal from, and, on motion, his appeal is dismissed at his cost.</p>

Tried below before the Hon. T. M. Paschal. This appeal is from the second conviction of the appellant for theft of a horse belonging to G. E. Albee. The first conviction was reversed by this court. 10 Texas Ct. App. 476. The jury on the second trial assessed the, punishment at five years in the penitentiary.

<p>Error from the District Court of Hays. Tried below before the Hon. L. W. Moore.</p> <p>The case is disclosed in the opinion.</p>

Tried below before the Hon. John C. Russell. The conviction was for theft of two horses, the property of Juan Olivarez. A term of five years in the penitentiary was the punishment assessed. The opinion discloses the facts relevant to the ruling. The explanation of the trial judge referred to in the opinion shows that the excluded witness, Marcelino Riche, was separately indicted for the same theft.

Tried below before S. P. Greene, Esq., Special Judge. A fine of ten dollars was the punishment adjudged against the appellant in the court below.

Tried below before the Hon. G. H. Noorah. By an indictment filed September 12, 1881, the grand jury of Bexar county charged the appellant with the rape of Dora Ellermann, committed on the 21st of the preceding month of August. The cause came to trial in the ensuing November, when the jury found the appellant guilty and assessed his punishment at death.

<p>Selling Liquors - Local-Option Law.—Where, in .accordance with the Constitution and the statutory provisions on the subject, the-local-option law has been adopted and put in force, it operates a repeal within the locality in question of all laws and parts of laws, in conflict with it; and, inasmuch as it does not otherwise provide, it exempts from punishment all previous offenders against the repealed laws.</p>

Tried below before the Hon. G. J. Clark. A term of ten years in the penitentiary was the punishment awarded the appellant. Everything relevant to the rulings of this court appears in the opinion.

Tried below before the Hon. George W. Glasscock, County Judge. The indictment charged the appellant with the theft of five dollars, the property of Goodson Bryson, on December 9, 1881. The jury found him guilty, and assessed his punishment at imprisonment for one hour in the county jail. The material evidence appears in the opinion of this court. Appellant was a boy about sixteen years of age.

<p>Appeal from the County Court of Brown. Tried below before the Hon. J. S. Cleveland, County Judge.</p> <p>The case is stated in the opinion.</p>

Tried below before the Hon. W. A. Blackburn. The case is sufficiently disclosed in the opinion. A term of five years in the penitentiary was the punishment assessed against the defendant.

Tried below before the Hon. John C. Eobertson. The indictment charged that the appellant, an adult male, did, on December 24, 1881, make an assault on Zona Bean, “a female girl,” and did beat, wound and ill-treat her, with intent, against her will and without her consent, to rape and carnally know her. The jury found the appellant guilty as charged in the indictment, and assessed his punishment at confinement in the penitentiary for a term of five years.

Tried below before the Hon. George W. Glasscock, County Judge. The indictment was presented January 26, 1882, and charged that the appellant, on December 24, 1881, unlawfully kept and exhibited for purposes of gaming a certain gaming table, to wit, a pool table. The jury found appellant guilty and assessed his fine at $50.

<p>1. Adultery—Accomplice Testimony. — In the trial of a man for adultery the testimony of his paramour as a witness for the State is that of an accomplice, and, unless corroborated by evidence tending to connect him with the offense, will not support his conviction.</p> <p>2. Same.— See evidence held insufficient in a trial for adultery to corroborate the testimony of the defendant’s paramour.</p>

Tried below before the Hon. W. A. Blackburn. The case is sufficiently stated in the opinion. A term of four years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. J. Stewart Cleveland, County Judge. Appellant and Daniel Eldridge, his brother, were charged by information with the theft of a hog worth seven dollars, belonging to Burrell Ethridge, on December 21, 1881. The cause came to trial on April 3, 1882, when the county attorney dismissed the prosecution as to Daniel Eldridge. Appellant moved for a continuance on account of the absence of John Smith and Ed. Allege, citizens, of Comanche county.

Tried below before the Hon. T. L. Nugent. The case is fully disclosed in the opinion. The first head-note gives the language in which the indictment described the money. A fine of $100 and three months’ imprisonment in the county jail were assessed as the punishment.

Tried below before the Hon. T. L. Nugent. Appellant was charged by information with the theft of three sacks of corn in the ear, about a bushel, worth one dollar, and the property of John H. Prather. The jury found a verdict of conviction and assessed the punishment at a fine of $2.50, and imprisonment for ten days in the county jail.

Tried below before the Hon. G-. B. Gerald, County Judge. The material facts in this case are disclosed in the opinion and the head-notes. Appellant was adjudged to pay a fine of ten dollars for betting against faro in Noel’s gambling room on Austin street, Waco.

<p>Appeal from the District Court of Bell. Tried below before the Hon. B. W. Rimes.</p> <p>The case is clearly stated in the opinion.</p>

<p>Appeal from the County Court of McLennan. Tried below before the Hon. G. B. Gerald, County Judge.</p> <p>The conviction was for assault and battery.</p>

Tried below before the Hon. P. W. Hall, County Judge. A fine of $100 was the penalty imposed on the appellant for aggravated assault and battery on a woman.

Tried below before the Hon. G. H. Noonan. The material facts are clearly though concisely stated in the opinion of the court. A term of two years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. W. H. Ford. The case is clearly though concisely stated in the opinion. It does not appear by the evidence that the accused had any opportunity to explain his possession of the property. A term of two years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. W. J. Ewing, County Judge. The substance of the evidence is clearly embodied in the opinion of the court. A fine of $100 was the penalty assessed against the appellant.

Tried below before the Hon. J. L. Fisher, County Judge. Afine of ten dollars was the punishment imposed upon the appellant. The substance of the charge against him was a failure to obey the lawful orders of the sheep-inspector with reference to scabby sheep under the appellant’s control.

Tried below before the Hon. T. B. Wheeler. The appellants were the sureties of one Marion Tanzy, who had been confined in the jail of Eastland county under an indictment for horse-theft, and who obtained his release therefrom by means of the bail-bond involved in this case. Tanzy’s name or signature does not appear to the bond, though in the body of the instrument he is repeatedly named as the principal.

<p>Appeal from the County Court of Robertson. Tried below before the Hon. John E. Crawford, County Judge.</p> <p>A fine of $50 was the penalty assessed against the appellant.</p>

<p>Appeal from the District Court of Smith. Tried below before the Hon. John C. Robertson.</p> <p>The opinion of the court sufficiently shows the indictment, and states the evidence in full. A term of three years in the penitentiary was the punishment allotted the appellant. It is to be inferred from the evidence that Calvin Johnson, the victim of the appellant’s enterprise, was a negro.</p> <p>By the charge of the trial court the jury were instructed as follows:</p> <p>“The taking must be fraudulent and with intent to appropriate the thing taken to the use or benefit of the person taking. It must have been taken by assault or by violence and putting in fear of life or bodily injury. The injury intended by violence may be constraint or arresting a person without authority, or a sense of shame or other disagreeable emotion of the mind. It is for you to decide in this case whether the said Calvin Johnson was put in fear or constraint by the defendant, and to determine this you are authorized to look to what capacity the defendant acted in,— if as an officer or not; if as an officer, whether as such he put the said Calvin Johnson under constraint or fear of personal injury, and thereby took the money as alleged; and all the other evidence in the case; and decide under this charge whether the defendant is guilty of robbery or not guilty,” etc.</p> <p>At the request of the defense the court gave a further instruction to the jury, but it also authorized them to convict whether the taking was by assault or by violence and putting in fear.</p>

Tried below before the Hon. G. B. Gerald, County Judge. The case is disclosed in the opinion. A fine of fifty dollars was the penalty imposed on the appellant.

<p>1. Change of Venue — Practice.—It is now well settled in this State that error in changing the venue is not available by plea to the jurisdiction of the court to which the case has been transferred. To make such error revisable on appeal, exception to the order changing the venue must be reserved in the tribunal by which the order was made.</p> <p>2. Same.— The Revised Code of Procedure, art. 584, enacts that an order granting or refusing a change of venue shall not be revised on appeal unless the facts are brought up by bill of exceptions perfected at the term whereat the order was made.</p>

<p>Obstructing Public Roads.— In a trial for obstructing a public roact the public character of the road may be established by proof of long-continued use of it as such, and by an order of the County Court assigning hands to work on it as a public road.</p>

Tried below before the Hon. J. E. Crawford, County Judge. The case is sufficiently indicated in the opinion of this court. A fine of $125 was the punishment assessed. No exception to the charge of the court, prior to the motion for a new trial.

Tried below before the Hon. R. E. Beckham, County Judge. The punishment imposed upon appellant for this misdemeanor was a fine of $15. The agreed evidence upon which the appeal was submitted was: 1. That the fence broken was a division or partition fence between the field of the prosecuting witness, Fleming, and the field of Chas. E. Mason, and was owned by them jointly, and had been built about three years. 3.

Tried below before John S. McCampbell, Esq., Special Judge. A clear though succinct summary of the evidence will be found in the opinion of the court.

Tried below before the Hon. John C. Russell. The opinion of the court states clearly the manner m which the so-called indictment in the presént case was found.

Tried below before the Hon. J. Abbott. The conviction was for the robbery of E. F. Davidson, and its result to the appellant a term of seven years in the penitentiary. The charging allegations of the indictment are set out in the opinion. ' E. E. Davidson, testifying for the State, said that he was a single man but a householder in Falls county, where he had resided since the year 1850.

<p>^Receiving Embezzled Property is not a violation of the penal laws of this State. See the opinion in this case in extenso for the reasons.</p>

Tried below before the Hon. B. T. Estes. The indictment charged the appellant with the murder of Louis Harbowe. His trial resulted in a conviction for manslaughter, and he was awarded two years in the penitentiary. The opinion states the evidence in its entirety.

Tried below before the Hon. D. P. Marr. The conviction was for cattle-theft, and a term of two years in the penitentiary was the punishment assessed against the appellant. The indictment alleged the animal to be the property of Joseph Walker, who, as a witness for the State, testified that in 1879 he had the sole control and management of some cattle belonging to his minor sons. He described the cattle by their brands, which were of record in McMullen county.

Tried below before the Hon. J. Bledsoe. The indictment was for murder and charged the appellant with shooting W. B. Mor val, on the 16th day of October, 1881, in Collin county, Texas, from which shooting Norval died on the 24th day of the same month. His trial resulted in a conviction of murder in the first degree, the death penalty being assessed. Dr. A. Sims was the first witness introduced on behalf of the State.

. Habeas Corpus on appeal from the judgment of the District Court of Kinney county, refusing bail. Tried below before the Hon. T. M. Paschal. On March 22, 1882, the grand jury of Kinney county presented an indictment which charged that E. S. Beacom, the appellant, on December 12, 1881, of his express malice aforethought shot and killed one John Piggott. Being in custody under the indictment, the appellant sued out a writ of habeas corpus for the allowance of bail.

Tried below before the Hon. C. C. Potter. The forgery for which the indictment in this case was presented, and of which the defendant was convicted, consisted ¡in writing, without lawful authority, the name of “A. H. Montgomery ” across the back of a bank check for $60, which he cashed at the banking house of Putman, Chambers & Co., Gainesville, Cooke county, Texas. His punishment was assessed by the jury at imprisonment in the penitentiary for two years.

Tried below before the Hon. A. O. Cooley. The indictment charged the theft of two horses, the property of M. J. Murray and Morgan Bagley, in San Saba county, Texas, on the 25th day of January, 1882. The . jury rendered a verdict of guilty, and assessed against the defendant as punishment a five years’ term in the penitentiary. The defendant’s application for a continuance was based upon the absence of the witnesses W. Jones, John Hamilton and 0.

Tried below before the Hon. J. C. Russell. The opinion discloses the nature of the case and its •disposition. There is no statement of facts incorporated in this .record except the written testimony of - Joaquin Barrientas taken before the examining court, in which he describes the manner of missing the stolen mule, its return by the sheriff, and the want of his consent to the taking of it.

Tried below before the Hon. R. G. Childress, County Judge. The opinion discloses the nature of the case. As punishment, the verdict of conviction imposed a fine of $35.

Tried below before the Hon. E. C. Stuart, County Judge. The opinion discloses the nature of the case. The penalty imposed by a verdict of guilty* was a fine of $25.

Tried below before the Hon. B. W. Rimes. The indictment charged the theft of a horse. The penalty awarded by a verdict of guilty was a five years’ term in the penitentiary.

Tried below before the Hon. T. B. Wheeler. The opinion of the court discloses the nature of the case. The verdict of conviction awarded the appellant a term of two years in the penitentiary. About the sum and substance of the evidence upon which this conviction was secured was, that the appellant, one Baker and one Miller entered into an agreement to rob a Chinaman who kept a laundry in the town of Colorado, Mitchell county.

Tried below before the Hon. W. A. Blackburn. The indictment charged the appellant with the theft of an estray horse, whose owner was unknown. His trial resulted in conviction, and he was adjudged a term of five years in the penitentiary. Ira Harris testified for the State that he knew the horse alleged to have been stolen by the defendant. He was a dun horse and ranged about the Chandler water-hole in Williamson county. He had been known for several years as an estray.

Tried below before the Hon. B. W. Rimes. The indictment charged the offense of forgery, and the trial resulted in conviction, with two years in the penitentiary assessed as punishment. Otto Berwitz testified for the State that on or about July 20,1881, the defendant was indebted to him in the sum of six dollars, and presented the witness a railroad time check, with request that the witness deduct his account and pay him the balance; which the witness did.

Error from the District Court of Callahan. Tried -below before the Hon. T. L. Hutchison. This error was prosecuted from the forfeiture of the appearance bond of W. C. Tinker bailed under an affidavit charging theft of a mare. The amount of the bond and judgment was $500.

Tried below before the Hon. W. H. Burkhart. The defendant was charged by indictment with the murder of one Sam Smith, in Waller county, on the 19th day of May, 1881. He was found guilty of murder in the second degree, and his punishment was assessed at five years in the penitentiary.

Tried below before the Hon. E. G. Bower, Special Judge. The indictment was presented June 19, 1876, and charged that the appellant, Shropshire Evans, on May 1, 1876, with a gun and of his malice aforethought, did kill and murder one William Engers. The jury found the appellant guilty of manslaughter, and assessed his punishment at a term of two years in the penitentiary..

Tried below before the Hon. W. A. Blackburn. The indictment charged the defendant with the theft of a mare, the property of some person unknown to the grand jury. The trial resulted in conviction, with a five years’ term in the penitentiary assessed as punishment. J. B. Jackson testified for the State that he knew the defendant and the mare mentioned in the indictment. She was a black mare about five years old, and had no brands on her that the witness had ever discovered.

<p>Evidence.—See the opinion in extenso for evidence held insufficient to sustain a conviction for theft.</p>

<p>Adultery—Charge oe the Court.—Under an information charging that the defendant did live together with and have carnal intercourse with B. P., the court charged the jury to the effect that it was not necessary to prove these allegations in order to convict, but that they could convict if they believed that the defendant had habitual carnal intercourse with her. Meld, error, for which the judgment must be reversed.</p>

Tried below before the Hon. O. C. Kirven, County Judge. The indictment was framed in accordance with the form for theft prescribed by the “common-sense indictment ” enactment of March 26, 1881, and is set out at large in the opinion. ■ The defense excepted to its sufficiency, because it does not allege the ownership of the hogs, nor charge that they were taken without the consent of the owner, or with intent to deprive him of their value.

Tried below before the Hon. R. GK Childress, County Judge. The opinion discloses the nature of the case and the evidence. The penalty imposed by the jury was a fine of §75, and ten days’ confinement in the county jail.

<p>1. Venue — Judicial Cognizance.— General statutes which recognize the location of a given town will authorize judicial knowledge of such location. In the absence of such statutes, however, and in the, absence of direct proof, this court cannot take judicial cognizance that a named town is in the county of the forum.</p> <p>2. Same.— Venue may be proved by other than positive testimony. If from the evidence the jury may reasonably conclude that the offense was committed in the county alleged, it is sufficient. See the opinion for facts held sufficient to establish venue.</p>

Tried below before the Hon. J. R. Kennard. The indictment charged that John Lewis, in Falls county, Texas, on the 1st day of March, 1879, made an assault with intent to murder J. D. Mercer and W. M. Carmichel, and that thereafter, on the 1st day of June, 1879, in Trinity county, Texas, the defendant, knowing of the offense committed by the said Lewis, did feloniously conceal and aid him to avoid arrest and trial for the offense, by feeding and keeping him in his house, and…

Error from Denton County District Court. Tried below before the Hon. J. A. Carroll. ' The opinion states the case. The judgment rendered was for $2,000.

<p>Appeal from the District Court of Tom Green. Tried below before the Hon. A. O. Cooley.</p>

<p>1. ' Judgment Nisi.—Where the judgment nisi fails to state that the “ same will be made final unless good cause be shown at the next term of the court why the defendant did not appear,” it is fatally defective and will not authorize a judgment final.</p> <p>2. Bail Bond that obligates the defendant to appear at a term of the court not authorized by law is void.</p>

_ Tried below before the Hon. C. G. White, County Judge. The opinion discloses the case. Two hundred dollars and costs was the fine imposed

Tried below before the Hon. E. Lewis. The opinion discloses the nature of the case, and sets out the charging part of the indictment. The punishment assessed by the jury was a term of two years in the penitentiary. The injured party was the only witness examined, and he testified in effect that he was a youth of fifteen years at the date of this trial, May, 1882. During the spring of 1881, he was by himself on the San Marcos river, fishing.

<p>Appeal from the County Court of Bosque. Tried below before the Hon. B. G. Childress, County Judge.</p>

Tried below before the Hon. J. E. Crawford, County Judge. The opinion states the nature of the case. The penalty imposed upon conviction was a fine of one hundred dollars, and confinement in the comity jail for three months.

<p>Appeal from the County Court of Milam. Tried below before the Hon. W. J. King, County Judge.</p> <p>The opinion discloses the nature of the case. The punishment imposed was a fine of §100.</p>

<p>1. Theft — Brand — Charge of the Court.—In a trial for horse-theft the c.ourt below instructed the jury, in effect, that a brand was presumptive evidence of ownership. There was evidence of the brand in question, but no proof that it was recorded. Held, that the instruction was not merely on the weight of the evidence, but was incorrect in the abstract. An unrecorded brand is neither presumptive nor any evidence of ownership, though it may be admissible on the question of identity.</p> <p>2. Charge upon the Evidence.— Trial judges are strictly prohibited by the Code of Procedure from expressing any opinion as to the weight of evidence, and from summing up the testimony or discussing the facts. The spirit of this prohibition may be violated without express comment on the evidence or positive discussion of the facts in proof. The charge should be framed so guardedly as to preclude the jury from drawing from it any inference of the opinion entertained by the judge upon the evidence.</p> <p>3. Same.—A charge upon the weight of the evidence is one of the causes for which the Code of Procedure expressly commands the reversal of a judgment of conviction, provided, 1, the charge was excepted to at the time, and 2, if, though not excepted to at the time, it was calculated to injure “the rights” of the defendant. In this connection the defendant’s “ rights ” are, 1, an acquittal unless his guilt is established by competent evidence, beyond a reasonable doubt; 2, to have the law applicable to the evidence given in charge to the jury; and 3, to have the judge refrain from charging upon the weight of the evidence and from discussing the same.</p> <p>4. Same — Practice in this Court.-—If an erroneous charge in a felany case was excepted to at the time, or if, though not then excepted to,' it was calculated to injure the defendant’s rights, the conviction will be set aside by this court without considering the sufficiency of the evidence.</p>

<p>Appeal from the District Court of Denton. Tried below before the Hon. C. C. Potter.</p> <p>The trial was for the murder of E. Townley. The opinion states the nature of the case, and collates the evidence entire upon which the conviction was had. The punishment awarded, upon a finding of guilty of murder in the second degree, was a term of five years in the penitentiary.</p>

<p>Appeal from the District Court of Walker. Tried below before the Hon. J. R. Kennard.</p> <p>The offense charged against the appellant was the murder of J. J. Elkins. Murder in the second degree was pronounced against him by the jury, and a term of ten years in the penitentiary was the punishment assessed.</p> <p>The opinion discloses the entire case.</p>

<p>1. Jurisdiction of 'the Court of Appeals.— Where an appeal has been improperly returned to a term of this court to which it was not primarily returnable, this court acquires no jurisdiction, and a judgment rendered thereon at such term is absolutely void; and a motion for rehearing of such a judgment will be entertained whether or not it was made at that term, and whether or not it was made in the mode provided by the rule.</p> <p>2. Same.— If, however, the appeal was prosecuted to the term of this court then in session, in conformity with the rule, this court acquired jurisdiction, and any judgment rendered, whether correct or not, was a valid judgment; and to authorize this court to entertain a'motion for rehearing at a subsequent term of the court, the rule governing such practice must be rigidly pursued.</p> <p>3. Practice in this Court.— The rule governing motions for rehear-_ ing filed after the adjournment of this court for a term is as follows: “When the Supreme Court (Court of Appeals) at any one of the places where it sits for the transaction of business, adjourns for the term within less than fifteen days after the rendition of judgment, the issuance of the mandate shall, unless otherwise ordered, be withheld until the expiration of said period; and if, within that period, an application for rehearing shall be presented to the clerk of the court at that place, having indorsed thereon the order of any member of the court that it be filed, the issuance of the mandate shall further be withheld, to await the action of the court on said application. The clerk, in addition to the steps required of him in other rehearing oases, shall forward the papers and the application to the clerk of the court at the place of its session next succeeding that at which the judgment was rendered.</p> <p>4. Practice — Appeal.— The Code of Criminal Procedure provides that an appeal in a felony case may be prosecuted immediately to the term of this court in session at the time the appeal is taken, or to the first term of this court after such appeal, without regard to the law governing appeals in other cases; and requires the clerk upon the application of either party to make out and forward without delay to this court wherever it may be in session, or, if not in session, to the clerk of this court where it will next be in session, a transcript of the case, which. transcript shall contain all the proceedings in the case.</p> <p>5. Same.—An application for the return of an appeal in a felony case to the term of this court then in session need not be incorporated in the transcript. If made orally in term time the better practice would be to embody in the transcript the application or request of the prosecuting attorney or of the defendant or his counsel, as indicated in Reynolds v. State, 8 Texas Ct. App. 209. If, however, the application be in writing, a certified copy properly authenticated to this court by the clerk will suffice.</p>

<p>Appeal from the County Court of Gonzales. Tried below before the Hon. J. S. Conway, County Judge.</p> <p>The indictment charged the slander of Catherine Eugenia Smith, an unmarried female, hy imputing to her a want of chastity. The two opinions rendered in this case disclose the nature of the case. The punishment assessed by the verdict of guilty was a fine of five hundred dollars.</p> <p>The charging part of the indictment is set out in the opinion on the motion for rehearing. Conforming to the direction of the court in the original opinion, the substance of the defendant’s bill of exceptions is here incorporated.</p> <p>Bill of exception recites, 1st: That defendant called the witness Burch, who stated that at a party at Mrs. Patterson’s house over three years ago, he had been in the dining room, and on coming out he saw Miss Kate Smith and Mr. Patterson lying on a bed together in a little side room, and he spoke to them and said: " Jim Patterson.’’ Here the witness was stopped by the prosecution, and objection was made that the defendant could not be allowed to prove any acts going to show a want of chastity on the part of Miss Smith except with the defendant himself or Joseph Perkins (the specific imputations), and that defendant must be confined to testimony rebutting the circumstances set out in the indictment, or to Miss Smith’s general reputation for chastity; which objection was sustained. 2d. Defendant asked witness Webber if he had ever had any conversation with Miss Smith about her relations with defendant; if so, when and where, and what she said;—which was excluded upon the State’s objection. that the declarations of Miss Smith could not be heard in evidence, she not being a party to the case. 3d. Defendant asked the witness Webber if he had ever had a conversation with Miss Smith about the witness having but one testicle; if so, when and where. 4th. If the witness Webber liad ever conversed with Miss Smith when they had talked about witness building a house for witness and Miss Smith, just big enough for one to lie on top of the other; which questions were excluded on the State’s objection that Miss Smith’s declarations were not evidence: for the defendant. 5th. Question to James Patterson same as that in 2d ground, and excluded for same reasons. 0th. Defendant then asked the witness to state all he knew of acts of Miss Smith with parties other than defendant, showing her want of chastity; which was-excluded on the grounds set out in exceptions 1 and 4. Defendant’s counsel then stated to the court that he desired to show by this witness that he, the witness, had an indecent conversation with Miss Smith, and that, a few days afterwards, defendant repeated this conversation to the witness,— this to show the relations between defendant and Miss Smith; which proof the court rejected. 8th. Same as 6th ground, but the question was put to other witnesses. 9th. Several witnesses having stated in general terms that they had heard Miss Smith’s reputation for chastity talked of by different persons on different occasions, but that they could not state her general reputation, not having heard it generally discussed. The defense asked what her reputation for chastity was among those by whom they heard it spoken of. Excluded on the ground' that the evidence offered did not come within the definition of general reputation. 10th. Defendant asked the witnesses if they knew Miss Smith’s reputation for chastity among the young men in the neighborhood where she lived, and if so to state it. Excluded for reason assigned in exception Ho. 9. 11th. Whether in a conversatioh with the. witness, Scott Perkins said anything to the witness about referring him to Joseph Perkins for information concerning the chastity of Miss Smith; and, 12th, to state what was said, if anything, about Miss Smith’s chastity by Scott Perkins, in a conversation between witness, Scott Perkins, and defendant, were questions ruled out as hearsay. 18. The State asked a witness if he kne^ Miss Smith’s general reputation for chastity, and, if yea, to state it. The defendant objected that the court had •excluded all of defendant’s proof in reference to her reputation, and' to any particular acts showing her want of chastity, and that the testimony was not necessary to justice nor in rebuttal to any proof admitted for the defendant; which objection was overruled.</p> <p>Milton Vaudérgriff testified for the State that about September 15, 1879, he and Scott Perkins, in search of work rode to Dowell’s ranche, where they found the defendant at work. While there Scott Perkins asked whether, if a man should get a negro woman with child, would he have to support the offspring. The defendant replied that he would, that he had a case of that kind himself, and had been looking up the question. He said that he had been having intercourse with Miss Kate Smith for about two years, that she was pregnant, and was going to lay the baby on the witness. That Miss Kate had told him that she went to Dr. Green to get a tooth pulled, and that he had pulled at it three times, failing to get it out, and then told her to go to a dentist who would tell her what was the matter with her. The defendant said that he had employed Dr. Green to take the whole case, and that Dr. Green had given him some medicine in a phial about as long as'one’s finger, for which he charged him forty dollars; that he had put Joe Perkins in there but that Joe had gone back on him, and he supposed Joe’s wife had found it out. The defendant stated that on one occasion Miss Kate Smith had crawled through a window to him when he was too sick to do anything. About two weeks after this the defendant told the witness that Miss Kate Smith was all right,—■ that nothing was the matter with her.</p> <p>Cross-examined the witness stated that the main conversation was carried on by the defendant and Scott Perkins, and that he, the witness, had but little to say more than “d—n it ” and such expressions. When the defendant told him that Miss Kate Smith was going to lay the baby on him, the witness, he merely replied: “ That’s too d—d thin.” The witness had never seen Miss Smith scuffling with men, nor putting her arms around them. About this time James and Jeff Patterson came up and nothing more was said about the matter</p> <p>Scott Perkins testified for the State that he was present at the conversation referred to by Vandergriff, and heard the defendant say that he had been having connection with Miss Kate for about two years, and that Joe Perkins had been having such connection also. The defendant said that Miss Kate had gone to Dr. Green two- or three times to get a tooth pulled, and the doctor could not pull it; that he had employed Dr. Green in the case, and had bought a phial of medicine from Dr. Green for which he paid him twenty-five dollars.</p> <p>On cross-examination the witness stated that the defendant spoke of “ Miss Kate,” and did not'call her Miss Kate Smith at any time. He cautioned the witness and Vandergriff to say nothing about it, as it would be the cause of Miss Kate Smith’s brother killing him or being killed by him. Vandergriff was the first to tell what defendant said. ’ ,</p> <p>Warren Clark, for the defendant, testified that he saw the defendant sitting in a ball room with his arm around Miss Smith. Miss Smith hugged the witness once, giving him a good tight squeeze. This witness on cross-examination stated that he had never heard Miss Smith called unchaste. The defendant and she were very intimate at the time, and the witness thought that the defendant was courting her.</p> <p>Jeff Patterson testified for the defense that, about two> years before the trial, in a ball room, he saw the defendant with his hand upon Miss Smith’s leg, at the-thigh, palm down, and Miss Smith had her hand on the back of defendant’s hand. Witness is a brother to defendant.</p> <p>William Patterson, another brother, testified that about two years previous he saw the defendant and Miss Smith sitting in a hall room, with their arms around each other. At another time he saw the defendant’s arm around Miss-Smith. This was while they were riding from church. The witness and his sister were riding ahead of them, when he looked hacked twice and saw them riding along, the defendant with his arm around her. The Patterson family and Miss Smith were very intimate.</p> <p>Morgan Coltram was offered by the defense hut his evidence was excluded. In answer to a question asked by the State, he testified that he knew Miss Smith’s general reputation for chastity and that it was good, though she was understood to be very rude.</p> <p>In rebuttal the State called Dr. Green, who testified ' that he had never attempted an abortion on Miss Smith or any one else, and had never sold any medicine for that purpose to any One.</p> <p>Miss Kate Smith testified, for the State, that her name was Catherine Eugenia Smith, that she was an unmarried female and -would be eighteen .years old in May. That the defendant nor no other man had ever had hands on her person, unless it may have been at play-parties, which were common in the neighborhood, two or three-years before.</p> <p>It will he observed that the rulings in this case are those enunciated in the opinion on the rehearing.</p>

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

Tried below before the Hon. C. C. Potter. The penalty imposed was a two years’ term in the penitentiary. The opinion discloses the nature of the case, and also the evidence so far as it relates to the want of consent to the taking of the animal. ' With reference to the other questions involved, Gordon testified that he, Bailey, Bay, Piper and McDaniel made two trips tó Black Creek in search of this and two yearlings of Bailey’s that had been stolen.

<p>Appeal from the County Court of Grimes. Tried below before-the Hon. R. C. Beale, County Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from the District Court of Atascosa. Tried below before the Hon. D. P. Marr.</p>

Tried below before the Hon. I. B. McFarland. This appeal is from a conviction for murder in the second degree, and a term of fifty years in the penitentiary. Milton McGowan, the deceased, was killed in August, 1879. A former appeal in this case is reported in 8 Texas Ct. App. 173.

Tried below before the Hon. R. R. Gaines. The indictment charged the murder of John Snow. The conviction was for murder in the second degree, with a term of fifty years in the penitentiary awarded as punishment. W. Coward was the first witness introduced on the part of the State. He testified that, in the year 1880, he knew the defendant and Newton Pender, and was an inmate of Newton Pender’s house during that year.

Tried below before the Hon. A. R. Stevenson, Special County Judge. The prosecution was intended to be for an aggravated assault and battery on W. J. Johnson. The jury found the defendant “guilty as charged in the indictment,” and assessed his punishment at a fine of fifty dollars. W. J. Johnson testified, for the State, that on the 6th day of December, 1881, he lived in Union Valley, Wilson county, Texas.

Tried below before the Hon. W. E. Collard. The opinion discloses the entire case. The penalty assessed by the jury was a term of five years in the penitentiary.

Tried below before the Hon. B. W. Rimes. The indictment charged the murder of James Burns, in Bell county, Texas, on the 24th day of March, 1882. The verdict returned by the jury was one of conviction of murder in the .second degree, and the punishment awarded was a five years’ term in the State penitentiary.

Tried below before the Hon. W. H. Burkhart. The opinion states the nature and the disposition of the-case. The substance of the testimony of J. B. Miller, the first witness for the State, was that on the morning of the-16th of October, 1881, he went into the store of a Mr. Rose in the town of Rosenburg, Fort Bend county, to-procure paper upon which to write a letter.- He there-saw the defendant standing by the counter, and the deceased sitting on a coil of rope.

Tried below before the Hon. T. B. Cox, County Judge. The case is disclosed in the opinion of the court. Appellant waived a jury in the court below and submitted the facts as well as the law to the judge, who found him guilty and adjudged his punishment at imprisonment in the county jail for ten days.

<p>Appeal from the County Court of Young. Tried below before the Hon. J. H. Glasgow, County Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from the District Court of Webb. Tried below before the Hon. J. C. Russell.</p> <p>The indictment charged the burglary of the store-house of Garland Mays. The trial resulted in conviction, and the punishment awarded was four years in the State penitentiary.</p>

Tried below before the Hon. C. C. Potter. The opinion states the nature of the case. The punishment assessed by the jury was confinement in the penitentiary for the term of five years

<p>1. Continuance.—Though an application for a continuance meet all the requirements of the law, it is not granted as a matter of right, but is addressed to the sound discretion of the court; yet it is expressly provided by statute that, should an application for a continuance be overruled and the defendant convicted, if it appear upon the trial that the evidence of the witness named in the application was of a material character, and that the facts set forth in the application were probably true, a new trial should be granted.</p> <p>2. Same-—Evidence—New Trial.— See the opinion in extenso for evidence held insufficient to sustain a conviction for theft, and for a case wherein a new trial should have been granted, 1, because the application for a continuance was good and sufficient; 2, because the evidence of the witness named in the application was of a material character, and the facts set forth in the application probably true.</p>

<p>Appeal from the District Court of Caldwell. Tried below before the Hon. L. W. Moore.</p> <p>The indictment was presented September 28, 1880, and charged that Clifton Ellison, the appellant, on June 11, 1880, did, of express malice aforethought, shoot and Mil Robert Dickerson. At the same term of court the defense filed an application for a change of the venue, alleging that by reason of prejudice and an influential combination against the defendant he could not obtain a fair trial in Caldwell county. The State resisted the application and it was overruled; to which the defense excepted. Thereupon the defense applied for and obtained a continuance of the cause. In October, 1881, a trial was had, resulting in the defendant’s conviction for murder in the second degree and the assessment of his punishment at a term of twenty years in the penitentiary.</p> <p>The evidence is elaborate and was elicited from many witnesses, and on some of the most important details of the homicide there was conflict between the testimony for the State and that for the defense. It appears that Robert Dickerson, the deceased, was a young man, but older than the defendant, and that they were cousins. Indistinct mention is made in the testimony of a difficulty between them a few hours before the encounter in which the defendant killed Dickerson by shooting him with a pistol.</p> <p>M. Hale was the first witness introduced by the State. He testified that the killing occurred about daylight and on a road leading from Rogers’s Springs in Caldwell county. The night previous to the killing the defendant, the deceased, the witness and many other persons attended a dancing party or ball at Rogers’s Springs, and the fatal difficulty between the defendant and the deceased took place when they were on their return from the ball. The ball broke up about daylight, the crowd dispersing in a body and about the same time. A large number started off by way of a neighboring bridge, which was near the scene of the homicide. The witness was among the last of the party to approach the bridge. Within ten feet beyond the bridge, the road forked, leading in different directions. When the witness reached this fork, he saw the defendant and the deceased together, with a crowd about them. The deceased was the first one to speak. He said to the defendant: “Ton treated me bad last night,—like a dog,” and asked him, “ What are you going to do about it?” The defendant replied: “If you don’t like it you can get more of it.” The parties and some others of the crowd got down from their horses, and something was said about the difficulty of the night previous. The deceased asked, “How do you want to fight ? ” The defendant answered, “Anyway.” The general understanding seemed to be that they were going to engage in a fist fight. The deceased pulled off his coat, hat and vest, and suggestéd to the defendant to do the same, but the latter declined, saying that he would “ not do it for any naan.”. The witness saw no arms of any kind about the person of the deceased. The two ran together, and at that time the witness dismounted. They fought around a circle of 30 or 40 feet, the defendant rather fighting and backing. The witness ran to them as quick as he could and grasped both. They appeared then to have quit striking and to have got to scuffling over something. This continued for a short space of time, when a pistol was discharged by the defendant, which penetrated the side of the deceased, and went through the body, bringing him to his knees. The next shot struck him in the neck.. Four shots in all were fired. Death ensued in about two minutes.</p> <p>The witness did not know until it was fired that the defendant had a pistol. When the pistol was first discharged the deceased exclaimed “Oh! Oliff, you have shot me.” The witness did not remember what were the exact words used by the defendant after the shooting, but they were in substance “boys, I have killed him,— here he is.” The witness did not see W. J. Ellison until after the killing. W. J. Ellison was on the other side of the bridge at that time, but came up shortly afterwards. The defendant remained on the ground but a few minutes after the killing. He rode off towards Lockhart. When the witness had hold of the parties, the deceased had no weapon in his hand, and if he had used anything in striking the defendant, the witness thought he would have seen it. The witness saw the deceased laid out, and assisted in dressing him. No arms of any kind, other than a small pocket knife, were found on his person.. The witness did not hear the deceased, during the encounter or at any time, threaten to break a pistol over the defendant’s head. He at no time saw blood about the defendant. After the fight he heard the defendant say something about being cut, and saw him show his wound to Bill Ellison.</p> <p>The cross-examination of this witness was rigid and searching, but, farther than eliciting a somewhat more detailed account of the occurrences at the time of the killing, it wrought no appreciable change in the substance of his testimony as given in his examination in chief. He stated, however, that after the killing a pistol other than that used by the defendant was found on the ground.</p> <p>Jack Gatlin testified for the State that he was present at the difficulty which culminated in the homicide. His account of the occurrences at that time did not materially vary from the account given by Hale, the first witness. He testified to exceptional opportunities, on the night before the killing at the ball, of observing whether or not the deceased had a pistol about his person, and he saw none. He stated, further, that as the two combatants were preparing to engage in the fight the defendant addressed the crowd and said that he would kill the first man who attempted to interfere. The pistol picked up was not found on the immediate ground over which thé parties fought.</p> <p>John Galbreath, witness for the State, gave a similar account of the occurrences at the time of the homicide. He stated that when the deceased addressed the defendant with reference to the first difficulty he said: “You beat me up like a dog. ... I don’t like for a man to take advantage of me, and beat me up that way. . ... I am not satisfied; ” whereupon the parties agreed to fight a fist fight, and engaged in the fight which resulted in the homicide. This witness stated that, as soon as the killing occurred, the defendant rode off, exclaiming “ whoop-ee, ain’t I a good one. Boys, I have killed him; here he is, come and look at him ! ”</p> <p>Sam Carter testified for the State that he was camped near the scene of the fatal encounter, and saw it all. His account of it in every material respect coincided with that of the previous witness. He stated, however, that after the killing the defendant exclaimed “ boys, I have killed him,- but he come at me with a pistol.”</p> <p>The substance of the testimony of John Blewitt, witness for the State, was that in company with the defendant he was the first to leave the ball room. After they had crossed the bridge and reached the forks of the road, the defendant stopped and said that he would wait for the crowd.. The deceased rode up and said “ Cliff, you beat and banged me up like h—11 last night.” The defendant replied: “If you are not satisfied I can give you more.” The deceased said in reply: “ Suppose I don’t want to fight?” The defendant answered: “If you don’t want to fight, call out your friends,” and the deceased responded: “ I don’t allow my friends to fight for me.” The defendant then said: “ I am change for you and your friends.” The deceased then said: “ If nothing but a fight will do you, I will fight you a fair fist fight.” The parties dismounted, and the deceased, repeating that the defendant had treated him like a d—d dog, slapped the defendant on the breast. The defendant thereupon drew his pistol, raised it over his head as if to strike, and the witness distinctly heard it click twice. The deceased said: “I will show you how to strike me over the head with a pistol.” The defendant said: “I will show you I am some punks,” and fired. Four shots were fired. As the defendant rode off he said “ By G—d, ain’t I a good one ? ”</p> <p>Joe Dillard testified in substance, for the defense, that before the first difficulty at Rogers’s Springs and during the ball, the deceased sat down in his lap, and while he had his arms around him, he felt something in the waistband of his pants which felt like a large pistol. He did not see it,—merely felt it.</p> <p>W. J. Ellison, a half-nephew of the defendant, testified, in substance, that at the ball he heard of a difficulty between the defendant and deceased, and by request, as a friend to both, went out to see the deceased. The two walked off together, the witness on the left side of the deceased. The witness felt a pistol on the person of the deceased and had his hand on it.. He asked the deceased to give up his arms. While they were talking, Bruce, the constable, approached and told the deceased that he wanted to see him. The two walked off, and when they returned the witness and deceased walked together to a well and sat down. The witness placed his Rand on the pistol again, and asked him to give it up, and he declined.' Hale, Gatlin, McFarland and others came up and proposed that deceased should pick his best friend, who with the witness would search and disarm the defendant, and then réturn and search and disarm the deceased; after which the defendant and deceased should get together and settle their difficulty. The deceased replied that he would not give up a d—d thing, but would Rave satisfaction that night. The defendant told the witness to go to see the deceased, and the witness so informed the deceased. The defendant was disarmed that night by some one. George Lincecum brought the defendant’s pistol to the witness, and the witness told the deceased that the defendant had been disarmed. The witness deposited the pistol with Eogers. A short time before daylight, and as the defendant was preparing to go home, the witness got and gave him his pistol.</p> <p>The witness was on the opposite side of the bridge when the shooting took place. The defendant called to him to come up, saying that he had killed the deceased, and had to do it in self-defense. The defendant had been struck on the back of the head, from which wound blood was dripping. The wound was between a half and three-quarters of an inch in length. Before he left, the defendant told the witness that he had killed the deceased in self-defense, and asked the witness what to do. The witness asked him what he wanted to do. He replied that he wanted to surrender, and the witness advised him not to until he could see his father. The defendant at no time made such a remark as “Whoop-ee, I am a good one.” He did not say “ Come up, boys, and look at him.” The witness saw the pistol which was picked up on the ground. John Eogers, who was standing some five or six steps from the body, had it in his hand. The witness took it and handed it to Byrd Eogers, requesting him to keep it and hand it in at the inquest. When the witness next saw the defendant he was at Harrison’s gin. He had fresh blood over his head and neck. He had no blood about him at the ball, or before the killing, that the witness saw.</p> <p>Tom Poston testified for the defense that he was one of the crowd at the place of the shooting. He saw two ■men ahead of him in the act of separating at the forks of-the road, and heard some words pass between them which he could not distinguish. They dismounted and one man pulled off his coat and hat. This man proved to be the deceased. He struck the defendant the first lick and -the fight commenced. The deceased got the defendant’s head down, and was striking him with what witness took to be a pistol. The instrument made a rattling noise like the loose ramrod of a pistol. The witness saw something in the hands of the deceased while he was striking. While the fight was going on the.defendant fired, shooting the deceased through the side. This witness thought that the deceased fell at the last shot, at which time several persons tried to separate the parties.</p> <p>After the shooting, the defendant remarked that his head was cut and that it was painful. He showed the wound to the witness. The defendant walked up near the body and said that he had killed the deceased, but that he had to do it in order to keep the deceased from killing him. He did not call upon the boys to come up and look at the body. He did not whoop and say: “ Ain’t I a good one ? ” This witness and others went to Bill Ellison’s to breakfast, and the witness there examined the wound on the defendant’s head. It was a tolerably deep gash on the back of his head, and was the same that the witness saw at the place of the killing.</p> <p>Joe and John O’Banion and Ike Crenshaw, others of the party, corroborated the last witness in every respect, none of them varying in any appreciable degree. Each of them believed that the deceased used a pistol in striking the defendant, and each declared the licks too loud to have been struck with the fist. Each examined the wound on the defendant’s head, and testified that he had no traces of blood about him before the killing, and each denied that the defendant made the remarks after the killing imputed to him by the prosecution.</p> <p>• Joe Lister testified that he was one of the party present at the killing, and was nearer the deceased and the defendant by about four yards than any other person. He arrived on the ground after one had dismounted and just as the other was in • the act of dismounting. The deceased pulled off his coat, and, as he turned to hang it on his saddle, the witness saw a pistol sticking in his pants on his left side. The witness saw the pistol plainly. The deceased seemed to want to hide it, and with his hand pushed it farther into his pants, concealing part of the cylinder. The witness did not see him draw his pistol during the fight, but saw that the deceased got the defendant’s head bent down, and was striking him with something he thought was a pistol. The licks were too loud to have been inflicted with the fist. His account of the fight is otherwise substantially the same as that of Poston, the O’Banions and Crenshaw. This witness, however, testified that he saw Rogers pick up a pistol about three feet from the body, nearest the head, after the shooting. The defendant had taken his pistol off with him, and that found on the ground was not the defendant’s pistol. The witness said to Jack G-atlin, just after the shooting, that the deceased had a pistol. G-atlin denied it, and the witness replied: “The man in his shirt sleeves had a pistol.” The crowd then searched for, and found it. The witness did not ask Galbreath who the man was who was fighting with his coat off.</p> <p>The cross-examination, though rigid and severe, failed to change the testimony of the witness in any particular, but it elicited the statement that, before the parties engaged, Bene Ellison said to the crowd: “The boys are armed, don’t let them fight. ”</p> <p>W. P. Arnold testified for the defense, and in the main described the incidents of the fight as did the other witnesses for the defense. He, however, stated positively that it was a pistol which was used by the deceased in beating the defendant over the head. He saw it distinctly, and saw that it was a large pistol. Just before the fight began, the deceased said to the defendant, “ You have treated me like a dog; you have beat me over the head like a dog, and I am going to bend a pistol over your head.” After the deceased had beaten the defendant to his knees, the latter said, “There, by G-—d, you have cut me.” He straightened up and the shooting began. When the defendant passed the body on the way to his horse, he said: “How, by G-—d, I have done it,” but the witness denied that he made the remarks imputed to him by the prosecution. The witness denied that he had ever said to Galbreath in Lockhart that if the deceased had a pistol on the morning of the killing, he, the witness, did not see it.</p> <p>The pistol found on the ground after the killing was identified as a pistol at one time known to belong to Byrd Persons, and Persons, it was testified, was present at the fight.</p> <p>A physician testified that, on the day after the killing, he was called in to dress a wound for the defendant. He found a gash cut in his head about an inch long. It was not of equal depth throughout its length, but in places was cut to the bone. The witness stated that it was made with some hard instrument. He did not think the barrel of a pistol would cut a similar gash, but such a gash could be cut by a protuberance on a pistol.</p> <p>In rebuttal, Galbreath testified that, on the day of the killing or the day after, he had a conversation with the witness Arnold in front of Hudson’s store in Lockhart, Texas,-in which Arnold said that he was present at the killing and saw it all, and that the deceased had no pistol — that if he did, he, Arnold, did not see it.</p> <p>Gatlin in rebuttal testified that immediately after the killing he heard Lister and Arnold disputing about a pistol, Arnold contending that the deceased had no pistol and Lister contending that he had one. Lister said that the man who had his coat off during the fight had a pistol, and asked the witness which of the boys it was.</p> <p>S. A. Bruce testified, in rebuttal, that he was constable of precinct Ho. 2, Caldwell county, and was present at the house when the first difficulty occurred, about 11 or 12 o’clock at night. He searched the defendant at his own request for arms, but found none. The defendant said to him: “They say I knocked Dickerson down with a pistol. I did it with this quirt; search me and see if I have a pistol.” The defendant raised his coat and turned around. The witness saw no pistol, and made no closer search of the defendant. Shortly afterwards the witness saw the deceased talking to W. J. Ellison, and told him that he wanted to see him. He walked off, the deceased following some four or five feet behind. They stopped at a distance of about thirty yards, when the deceased asked the witness to search him. The witness did so, examining him closely, feeling under his coat,—and around his waist down to his hips, but found no pistol. He had no arms about him. The witness did not examine his boots.</p> <p>Cross-examined, the witness stated that he did not keep his eye on the deceased while the latter was going to or from the place of search. He did not examine the ground to see if the deceased might not have dropped a pistol while following him. The deceased knew that the witness was an officer. The deceased told the witness that he would rather die than to submit to the treatment he had received that night.</p> <p>Trave McFarland in rebuttal stated that he was present ■at a conversation between the deceased and W. J. Ellison at the well near the house. Ellison was trying to prevail upon the deceased to surrender his arms. The deceased said that he had no arms to give, up. He told Ellison that as far as disarming the defendant was concerned “it was too d—d thin; ” that he knew the defendant too well. On cross-examination this witness stated that the deceased told him that he was accused of having a pistol, and asked witness to search him. Witness did so, but found no arms. The defendant knew that the witness was assisting Mr. Bruce that night in keeping order.</p> <p>Dick Rogers testified that W. J. Ellison gave him a pistol for safe-keeping about one hour after dark. He returned the pistol to Ellison about 3 o’clock A. M., after the difficulty during the ball.</p> <p>John and B. E. Rogers, in rebuttal, testified that it was John Rogers and not Mr. Foy who picked up the pistol on the ground near the body.</p> <p>The testimony is greatly abbreviated in the foregoing statement. The opinion discloses other facts.</p>

<p>1. Continuance—,New Trial.— An application for a continuance, complying in every respect with the requirements of the statute, averred that the purpose of the desired testimony was to prove that the defendant owned the animal alleged to have been stolen by him, or, if not, that he honestly believed he was the owner. Held, that such evidence being material, and there being other evidence tending to support this defense, not inconsistent with the facts proved, a new trial should have been granted because of the refusal of the continuance.</p> <p>2. Privilege of Counsel —Case Stated.—The county attorney, when commenting upon the evidence in his closing argument, was interrupted by the defendant in person with the statement that if he had the absent witnesses he could show different. The county attorney, addressing the jury, stated that the brother of the absent witnesses told him that they, if present, would testify against the defendant. Held, that-such a remark was unwarranted by the law or the facts of the case, and was the assertion of a fact not in evidence, and a proceeding prejudicial to the defendant.</p> <p>3. Practice.—In the trial of all and particularly of criminal cases, the court below should strictly enforce rules 36, 38, 39, 40 and 41 for the government of argument in the District Court.</p> <p>4. Charge of the Court—Case Stated.—After having made the objectionable remarks, the county attorney sought to correct the error by asking the court to charge the jury that they were not to consider the argument or any remarks made by counsel pro or con, but should be governed by the law as given in charge, and the facts as testified on the stand. Held, that not only did the remedy sought to be applied come too late, but it announced an erroneous principle of law. Legitimate argument is proper for the consideration of the jury.</p>

Tried below before the Hon. R. R. Gaines. The indictment charged the murder of Joe Spears in Lamar county, Texas, on the 11th day of January, 1881. The appellant was convicted of murder in the first degree, and his punishment was affixed at death.

Tried below before the Hon. C. C. Scruggs, County Judge. The opinion states the nature of the case. A fine of ten dollars was imposed by a verdict of guilty. A. M. Cochran testified for the State that he knew the defendant. He was also acquainted with Bob and Elizabeth Ervin. They reside in Denton county, some six or seven miles east from the town of Denton. They own the farm of which the fence is alleged to have been pulled down by the defendant.

Tried below before the Hon. T. A. Falvey. The trial of the appellant for the rape of Mrs. Mattie McL. Davis resulted in his conviction, and the death penalty was assessed by the jury.

<p>Scire Facias.— Judgment Nisi which fails to state that the same will be made final, unless good cause be shown at the next term of the court why the defendant did not appear, is fatally defective.</p>

Tried below before the Hon. W. E. Collard. The opinion discloses the nature of the case. The trial resulted in conviction, with two years in the penitentiary assessed as punishment

Tried below '.before the Hon. W. M. Minyard. The opinion states the nature of the case. The punishment imposed by a verdict of conviction was a fine of one dollar.

Tried below before the Hon. W. E. Collard. The conviction in this case was for the theft of a heifer, and the punishment awarded was three years in the penitentiary. This same appellant was convicted in two other cases for similar offenses and upon similar indictments. The judgments were reversed on appeal, and the prosecutions dismissed for the reasons assigned in the present case.

Tried below before the Hon. J. Abbott. The indictment contains the allegations ordinarily used in charging theft, and accused the appellant of stealing a gelding, the property of Ben Young, on July 30, 1881. The jury found appellant guilty of embezzlement and assessed his punishment at a term of five years in the penitentiary.

Tried below before the Hon. W. E. Collard. The opinion states the nature and result of the case. Dr. Thomas Pugh testified for the State that about the time named in the indictment he was called in to see the Mexican Siddie Acco, and found him suffering with a flesh wound across the upper lip, which severed the lip from one corner of the mouth to the other. There was also a wound in the cheek, exposing the bone, but the. only wound requiring treatment was that on the lip.

Tried below before the Hon. J. R. Mason, Special Judge. • The indictment charged the burglary of the corn crib of J. W. Murphy, and the theft therefrom of two blankets. The defendant was convicted and was awarded a two years’ term in the penitentiary as punishment. J. W. Murphy testified for the State that he lived in the town of Pleasanton, Atascosa county, Texas.

Original Application for the writ of habeas corpus? prosecuted from Bexar county. The opinion fully discloses the case: Relief was refused, and the defendants remanded to the custody of the sheriff' of Bexar county. The applicants were W. Cox, J. Ryan, J. Hester and D. Augustine.