Volume 13 — Texas Court of Appeals Reports

Tried below before the Hon. J. C. Robertson. The indictment charged the appellant with an assault with intent to murder Elisha Young. The venue was laid in Smith county, Texas, and the offense was alleged to have been committed on the twenty-ninth day of October, 1881. He was found guilty upon his trial, and a term of five years in the penitentiary was assessed against him as punishment.

Tried below before the Hon. W. G. W. Jowers, County Judge. The opinion discloses the entire case. The punishment awarded by the jury was a fine of twenty-five dollars, and confinement in the county jail for one day.

<p>Appeal from the County Court of Ellis. Tried below before the Hon. A. Langley, County Judge.</p> <p>The indictment charged an aggravated assault and battery upon the person of E. N. Thomas, with a pitchfork, which was alleged fco be a deadly weapon. The judge below, trying the case without a jury, found the defendant guilty, and assessed . his punishment at a fine of fifty dollars.</p> <p>James McQuarters was the first witness introduced on behalf of the State. He testified that during harvest time in June of 1880, he, Swindell McDaniel and E. ST. Thomas, en route to their harvest field, passed by the house of the defendant. Mr. Thomas inquired of Mrs. Pease, the wife of the defendant, the nearest route, and she pointed in a direction passing through a “truck-patch” belonging to the defendant. The party started, and had got about twenty feet, when the defendant, who was shocking oats near by, exclaimed: “Gr—d d—n it, don’t ride over my patch.” The party turned around and went back. The next morning, on their way to the harvest field again, the party was overtaken by a shower of rain near the defendant’s house, and they rode up to his' barn for shelter. The defendant was then in charge of Mr. Batchelor’s race horses. McDaniel and the witness went into the barn first. Thomas rode up to the fence, hitched his horse, came to the stable door, and said to the defendant: “Uncle Hank, I want to have a talk with you about the way you talked to me yesterday.” The defendant said: “Well, I don’t allow anybody to ride over my truck-patch.” Mr. Thomas said: “Your wife told me to go that way,” and the defendant replied: “ I don’t care a d—n what my wife said; you must not do it.” Mr. Thomas then said: “ If you talk to me that way again, there will be a wool-pulling,” and the defendant replied: “If you want a fuss you can get it now.” When the defendant made the remark quoted, Mr. Thomas struck him. The defendant put his hand in his pocket, and Thomas exclaimed: “ Don’t you pull out that knife,” at the same time pulling out and opening his own knife. The defendant then went back about fifteen or twenty feet and got a -six foot pitchfork with iron prongs about a foot long, with which he struck an over-left-handed blow at Thomas, missing him and striking the side of the barn. Thomas dodged, caught the fork and wrested it from the defendant. In the struggle the defendant jabbed the prongs of the pitchfork into both of Thomas’s legs, and Thomas stuck his knife into the defendant’s hip. The witness stated that there was a pathway through the defendant’s truck-patch, which the party traveled. They turned back as soon as ordered by the defendant.</p> <p>The testimony of E. ÍT. Thomas did not vary materially from that of McQuarters, but he described the language used by the defendant both at the truck-patch and the time of the fracas, as somewhat more violent. He related some transactions between himself and the defendant which transpired on the first day after the defendant ordered the party off his truck-patch, which would indicate that whatever had feeling was engendered by that incident had been reconciled, or at least that the parties had dropped the matter. He detailed the subsequent proceedings very much as they were detailed by the witness McQuarters, and stated that he was twenty-seven years of age, and larger than the defendant, who was a man fifty-one years old.</p> <p>Dick Martin testified for the defense that he was of the party which started through the defendant’s truck-patch en route to the harvest field. At about a distance of two hundred and fifty or three hundred yards, the witness saw the defendant, who was shocking oats, wave his hand, and heard him halloo to the party to “go around.” The next morning, on their way to the harvest field, Thomas proposed to stop at the defendant’s barn to escape a shower. McQuarters, McDaniel and Duff went into the barn first. Thomas, who was just in front of the witness, hitched his horse, pulled off his gloves, pushed up his sleeves, went to the barn door, and said to the defendant, who was standing inside: “Hank, what did you mean by talking to me as you did yesterday? If you do it again, there will be a wool-pulling.” The defendant said: “I never run out of a fight;” when defendant (?) struck him. The witness heard Thomas exclaim: “Don’t you pull out that knife.” As Thomas made this remark, he pulled out his own knife, and went in at the barn door, and the witness saw no more of the parties during the difficulty.</p> <p>James Duff testified, for the defendant, detailing the transaction very much as it was detailed by the witness McQuarters. He stated that when the parties fell in their scuffle over the pitchfork, they were some six or seven feet inside the barn.</p> <p>The motion for new trial set up:</p> <p>1. That the judgment was contrary to the law and the evidence.</p> <p>2. That there was no evidence that the pitchfork, as it was used by the defendant, was a deadly weapon.</p> <p>3. That all the evidence established the fact that if an assault and battery or an aggravated assault and battery was committed by either party to the difficulty, it was by Thomas and not by the defendant.</p> <p>4. That the court erred in overruling the defendant’s application for a continuance. The motion was overruled and appeal taken. The transcript does not bring up the application for continuance.</p>

Tried below before the Hon. A. J. Hood. The indictment charged the appellant with the theft of one cow, the property of S. H. Mulkey. The venue was laid in Tar-rant county, and the offense was charged to have been committed on the thirteenth day of March, 1882. The trial, which occurred at the ensuing June term of the court, resulted in the conviction of the appellant, and he was awarded a term of four years in the penitentiary as punishment.

<p>Appeal from the County Court of Van Zandt. Tried below before the Hon. R. H. Allen, County Judge.</p> <p>The offense intended to be charged was an aggravated assault upon S. C. Wilson. The verdict of guilty assessed the punishment at a fine of twenty-five dollars. The charging clause of the information is set out in the opinion of the court.</p> <p>The testimony in brief, on the part of the prosecution, was to the effect that, on the day of the alleged assault, Wilson, the injured party, through the little son of the defendant, received a message from the latter to call at his house for his mule. He went, and when he had secured his mule, the defendant approached him, and, within six feet of him, with a cocked sixshooter presented at his body, said: “I have a settlement to make with you; you swore a lie on me in the county court about stealing some cotton.” Wilson, who was the witness, replied: “ If I have, it is done now and can’t be helped.” After the defendant cursed and abused Wilson for some time he fired his pistol to one side.</p> <p>The witness Dickerson testified that, in a subsequent conversation with him, the defendant told him of his difficulty with Wilson, and said that at the time he had his pistol in his hand and fired it off over Wilson’s head, but did not say how close he was to Wilson.</p> <p>Mrs. Allen testified, for the defense, that she was defendant’s wife, and was present at the difficulty. Wilson brought with him a rope some twenty feet long and about one inch thick. One end of it he secured around his mule’s neck, and the rest, in a coil, he held in his right hand. Defendant called to him that he had a settlement to make with him, holding his pistol down by his side. Wilson said “all right,” and started at defendant with his rope held in a striking attitude. At this point defendant raised his pistol, and laid the barrel across his left hand, pointing from Wilson. He called to Wilson to stop, and Wilson did so. The defendant at no time pointed his pistol at or towards Wilson. There was nothing to prevent him from shooting Wilson, but he made no effort to hurt him. After Wilson, on his return home, had progressed forty or fifty yards, the defendant fired his pistol upwards in the air.</p>

<p>1. Judgment Nisi shall state that the same will be made final unless good cause be shown at the next term of court why the defendant did not appear. This requirement is not supplied by the recital that the “judgment will be made final unless good cause be shown at the next term of the court why the defendant did not appear.” See Collins v. The State, 12 Texas Ct. App., 356.</p> <p>2. Same.—An invalid judgment nisi will not support a final judgment.</p>

<p>1. Judgment Nisi.—The statute imperatively requires that a judgment nisi shall recite that the same will be made final at the next term of the court, unless good cause be shown why the defendant did not appear. Citation to appear and show cause why final judgment should not be entered is not a compliance with the statute.</p> <p>3. Same.—A judgment nisi which does not contain the statutory provisions is void and cannot be made the basis of a final judgment.</p>

Tried below before the Hon. W. J. Jones, County Judge. This was a prosecution under Article 110 of the Penal Code, against the defendant for engaging in the sale of spirituous liquors in quantities less than one quart, without first paying the tax therefor, etc. The trial resulted in the conviction of the defendant, and his punishment was affixed by the jury at a fine of four hundred and fifty dollars. The opinion summarizes the whole of the evidence.

Tried below before A. B. Watkins, Esq., Special Judge. A former appeal in this case was dismissed by this court at the last Tyler term, because the record failed to bring up a final judgment. (See 11 Ct. App., 281.) The final judgment having been supplied nunc pro tune, at the April term, 1882, of the district court, the cause is again before this court for review, the appeal being renewed.

Tried below before the Hon. L. W. Moore. The indictment charged the theft of a horse, the property of E. C. Barker. The venue was laid in Hays county, and the date of the offense was alleged to be the thirteenth day of June, 1882. The trial of the appellant resulted in his conviction, with a five years term in the penitentiary awarded as punishment.

Tried below before the Hon. B. W. Rimes. The indictment charged the appellant and one James Wyers jointly with the theft of a steer, the property of 0. W. Hickerson. A severance was granted upon the application of the appellant, and, after the trial and conviction of his co-defendant, he was placed upon his trial, which resulted in his conviction, with a two years term in the penitentiary assessed against him as punishment.

Tried below before the Hon. B. W, Rimes. This is the companion case of D. H. Ray, ante, p. 51, under a joint indictment for the theft of a steer, the property of C. W. Hickerson. The conviction was secured upon the same evidence which is reported in full in Ray’s case. The punishment assessed against the appellant was a term of two years in the penitentiary.

Tried below before J. A. Martin, Esq., Special Judge. The appellant was charged by indictment with the theft of a horse, the property of Bufe Casey, in Falls county, Texas, on the fifteenth day of July, 1881. His trial resulted in a verdict of guilty, with a seven years term in the penitentiary assessed against him as punishment. I. N. Casey was the first witness for the State.

Tried below before the Hon. B. W. Rimes. The indictment charged the appellant and one William Self with an assault with intent to rob Sanford Allen, in McLennan county, Texas, on the sixteenth day of March, 1882. Upon the application of his co-defendant, a severance was granted, and the appellant was placed first upon trial. He was convicted, and awarded a two years term in the penitentiary.

Tried below before the Hon. C. C. Potter. This is a second appeal in this case from a conviction for the forgery of the name of A. H. Montgomery as indorser of a bank check for the sum of sixty dollars. See page 323 of the twelfth volume of these reports for a full statement of the evidence. The punishment assessed by this last conviction was a two years term in the penitentiary. The appellant asked for a new trial, upon the grounds: 1.

Tried below before the Hon. A. S. Walker. The indictment in this case was for bigamy. It charged that the appellant, having a living wife, on the fourth day of December, 1881, unlawfully married one Rebecca Garner. He was convicted, and was awarded one year’s confinement in the penitentiary as punishment. John Crawford tQstified for the State that he knew the defendant and knew his first and his second wives, both of whom, he pointed out in court.

Tried below before Hon. J. T. Mosely, County Judge. The information was designed to charge the appellant with an aggravated assault and battery upon the person of Laura Lawson, a female. The motion to quash the information being overruled, the appellant was placed upon his trial, convicted, and a fine of twenty-five dollars assessed against him as punishment. The statement of facts repeats a somewhat frequent chapter in the history of conjugal life.

<p>Appeal from the District Court of Live Oak. Tried, below before the Hon. D. P. Marr.</p> <p>The indictment charged the appellant with the theft of three horses, the property of John McKenzie, in Live Oak county, on the thirtieth day of September, 1881. The verdict of the jury found the appellant guilty, and assessed a term of five years in the penitentiary against him as punishment.</p> <p>The substance of the testimony of John McKenzie, for the State, was that he and the defendant owned and lived in adjoining pastures, both of which were near Pant’s pasture. That, six or seven miles distant, at Anderson’s tank, there was a pen used for penning stock, and attached to this was another pen used for catching wild, or mustang horses. A wooden fence separated the pastures of the witness and the defendant.</p> <p>In September, 1881, when the witness started to drive a bunch of horses to San Antonio, he cut out the three unbranded colts in question, which, though the property of his absent daughter, were under his exclusive care and control, and turned them into his own pasture. When he returned from San Antonio he went out into his pasture to look after his stock, and found the three colts, which he had left there, staked out in the defendant’s pasture and in the defendant’s brand. Hevill Dobie, who examined them at the request of the witness, also recognized them as the colts which the witness had left in his pasture on his departure for San Antonio.</p> <p>The witness had never given the defendant permission to take or brand these animals. The witness denied that he had ever heard that horses and mares running in that neighborhood had been killed or injured by Fant’s barbed wire fence during the summer and fall of 1881. He denied that he had ever told Pat Sheran, after his return from San Antonio, that he could not identify the colts he found in the defendant’s brand, staked in the defendant’s pasture, as the property of his daughter. He denied that he had ever made a like statement to John J. Fox. He denied also that the neighborhood around Anderson’s tank was a mustang range. The colts were about ten months old.</p> <p>Nevill Dobie, evidently an employe of McKenzie in September, Í881, corroborated McKenzie as to the topography of the country, the trip to San Antonio with horses, the leaving of the colts in McKenzie’s pasture unbranded, and their subsequent discovery staked in the defendant’s pasture, in the defendant’s brand. While the witness was with McKenzie and the stock in San Antonio, he met the defendant, and the defendant asked him where the colts were, and the witness replied that they had been left in McKenzie’s pasture.</p> <p>This witness testified that he was present at a conversation between Pat Sheran and McKenzie, and stated that if the latter told the former that he could not recognize the animals as his daughter’s property, the witness did not hear him. The witness had seen some mares injured by Fant’s barbed wire fence, but had seen none killed. There was a mustang pen at Anderson’s tank, and mustang stock ranged about that neighborhood. When the witness found McKenzie’s colts staked in the defendant’s pasture, he asked the defendant whose colts they were. The defendant said that they were three mustang colts which he had caught, and the witness told him that they were McKenzie’s colts. The defendant thereupon asked “Why in the h—11 don’t Mr. McKenzie brand his colts ?”</p> <p>Pat Sheran, for the defense, testified in substance that McKenzie told him, after his and Dobie’s return from San Antonio, that he could not .identify as his or his daughter’s the colts found staked in the defendant’s pasture, but that Dobie could. The witness described the mustang pen at Anderson’s tank which was used for the capture of mustang stock, and he described the manner of capture. He had seen many wild mustang horses captured in that pen. The neighborhood was a mustang range. The witness saw many horses and mares killed by Fant’s barbed wire fence during the summer and fall of 1881. The best time for the capture of mustang stock in the pen mentioned was at night.</p> <p>John J. Fox testified, for the defense, that McKenzie on his return from San Antonio told him that he could not identify these colts as his or his daughter’s, as he did not pretend to be a horse expert; but that Dobie could. The neighborhood about Anderson’s tank was a mustang range. The witness himself had captured a ten year old mustang horse in the pen there.</p> <p>William James testified, for the defense, that one afternoon he went with the defendant to assist him in looking for some horse stock. Failing to find them they concluded to watch the tank. About dark a drove of horses, including three unbranded colts, came to the tank, and the witness and the defendant drove the three colts into the mustang pen, where they remained over night. The witness and the defendant both took them to be mustangs. These animals were unbroken and unbranded, and acted like mustangs; and from appearances the witness thought they were over a year old. The next morning the colts were “tailed” to another horse, and taken to the defendant’s pasture, since when the witness had not seen them. These animals were not taken out of McKenzie’s pasture. The other stock which came to the tank with them were branded, but none of them in McKenzie’s brand.</p> <p>Motion for new trial was based upon the action of the court in refusing a first continuance; upon the discovery of new evidence; and upon the grounds that the verdict was contrary to the law and the evidence. The motion was overruled.</p>

Tried below before the Hon. B. T. Estes. The indictment charged the appellant, as an adult male, with an aggravated assault upon one Ann Rutherford, a female. The punishment awarded by the jury, by a verdict of guilty, was a fine of twenty-five dollars.

Tried below before the Hon. P. F. Edwards. The opinion states the nature of the case. The penalty imposed, by a verdict of guilty, was a fine of seventy-five dollars. The sale of the liquor to Elias Spradley was not controverted, and his minority at the time of the sale and of this trial was established by himself and his father, P. Spradley.

Tried below before the Hon. J. C. Robertson. The indictment in this case charged the appellant with the murder, by poison, of her husband, Cad Heacock, in Van Zandt county, Texas, on the sixth day of July, 1880. Her trial resulted in her conviction of murder in the first degree, and she was awarded a life term in the penitentiary. W. L. Haynes was the first witness introduced by the State.

Tried below before the Hon. Gr. J. Clark. The indictment charged the appellant with the murder of Jacob Forgatson, in Hunt county, Texas, on the first day of July, 1882. His trial resulted in his conviction of murder in the second degree, and his punishment was assessed at imprisonment in the penitentiary for a term of forty-six years and three months.

Tried below before the Hon. L. D. Bradley. The indictment in this case charged the appellant and one Stony Broxon jointly with the murder of J. W. Norris, in the town of Bice, Navarro county, Texas, on the night of the twentieth of February, 1882. The appellant was alone upon trial, his co-defendant never having been arrested.

Tried below before the Hon. T. M. Paschal. ■ The indictment in this case charged the appellant and George W. Harlan, jointly, with the theft of one certain head of neat cattle, the property of some person unknown. The venue was laid in Maverick county, and the date of the offense was alleged to be the twentieth day of July, 1882.

Tried below before the Hon. P. F. Edwards. The indictment charged that appellant played at a game of cards at a house used for the purpose of retailing spirituous liquors, known as the Old Stone Fort, in the town of Nacogdoches, Nacogdoches county, Texas, on the seventh .day of March, 1881. His trial resulted in his conviction, and his punishment was assessed at a fine of twenty-five dollars. The opinion discloses the evidence on the material question involved.

Tried below before L. F. Williams, Esq., Special Judge. The opinion discloses the nature of the case. A term of five years in the penitentiary was the punishment assessed by a verdict of guilty. S. B. Strange testified, for the State, that he was a justice of the peace for precinct Bo. 5 in Bell county.

Tried below before the Hon. W. E. Collard. The indictment in this case charged the appellant and two others, Wyatt Banks and Daniel Compton, with the murder of Ad. Wyser, in Robertson county, Texas, on the twenty-eighth day of May, 1882. Upon a severance, the State elected to try the appellant first. He was convicted of murder in the first degree, and was awarded the death penalty. A. C. Tilley was the first witness introduced on behalf of the State.

Tried below before the Hon. W. E. Collard. This is a companion case to Waite v. The State, ante, p. 169, and, as in that case, the death penalty was assessed by the jury for the murder of Ad. Wyser, in Robertson county, Texas, on the twenty-eighth day of May, 1882. The same witnesses testified to the same facts in the two cases, and the evidence is condensed in full in the report of Waite's case.

Tried below before the Hon. B. F. Williams. The indictment in this case was presented in the district court of Clay county on the tenth day of December, 1879. It charged the appellant with the murder of Samuel Kershaw, on the eighteenth day of September, 1879, in the unorganized county of Hardeman, which, at that time, was attached to the organized county of Clay for judicial purposes.

Tried below before the Hon. G. J. Clark. The indictment was against W. F. Torbett for the theft of two horses. The opinion otherwise discloses the case.

Tried below before the Hon. G. J. Clark. The conviction in this case was upon an indictment charging the appellant with the theft of A. B. Chappell’s horse, in Hopkins county, on the tenth day of December, 1881. A term of seven, years in the penitentiary was the penalty imposed by the verdict.

Tried below before the Hon. D. P. Marr. The indictment charged the appellant with the murder of George Boselle, in Live Oak county, on the twenty-fourth day of December, 1881. He was convicted of murder in the second degree and was awarded a term of fifty years in the peniten- • tiary.

Error from the District Court of Delta. Tried below before S. W. Stewart, Esq., Special Judge. George Simpson was the principal in the bond and stood charged before the District Court of Delta county, Texas, with the offense of bigamy. The opinion otherwise discloses the case.

Tried below before the Hon. E. Lewis. This is the second appeal from a conviction for the theft of a cow, the property of Alf. Friar. (See 11 Texas Ct. App., 388.) The penalty assessed was, as in the former conviction, a term of four years in the penitentiary. The report of Long’s case, 11 Texas Ct.

Tried below before the Hon. E. Lewis. This is the companion case of Tyler v. The State, ante, p. 205, and, like that, a second appeal (See 11 Texas Ct. App., 381,) from a conviction for the theft of a cow, the property of Alf. Friar. The penalty assessed against him was a three years term in the penitentiary. The testimony on this trial was the same as that upon which his former conviction,was secured, and which is fully recited in the report of his former appear(11 Texas Ct.

Tried below before Hon. R. H. Allen, County Judge. The opinion discloses the entire case. The penalty imposed by the judgment of conviction was a fine of twenty-five dollars and costs.

Tried below before the Hon. D. P. Marr. The conviction was for the illegal alteration of the brand upon the body of a certain cow, the property of C. C. Lewis and N. Bluntzer. The penalty imposed was a two year term in the penitentiary.

Tried below before the Hon. T. L. Stanfield, County Judge. The opinion of the court states the nature of the case. The punishment assessed by the jury was a fine of two hundred dollars. Three or four witnesses, testifying for the State, stated that the defendant had told them that Miss Olia Hardin, the alleged injured party, was a whore, and had been in a public whore house in Dallas. These communications were made to the witnesses separately, and on different occasions.

Tried below before the Hon. J. C. Robertson. The indictment in this case was a joint one against this appellant, Randal Johnson, George Sharp, Paul Johnson, Wyatt Ross and Ed. Moore, for the murder of Frederick A. Godley, in the city of Tyler, Smith county, Texas, on the sixth day of December, 1871. The appellant being alone upon trial, he was convicted of murder in the first degree, and his punishment was assessed at a life term in the State penitentiary.

Tried below before the Hon. A. J. Booty. The indictment charged the appellant with the murder of Mack Allen, on the fifteenth day of February, 1882. He was found guilty of murder in the second degree, and the jury imposed upon him, as penalty, a term of fifty-two years in the penitentiary.

Tried below before the Hon. J. C. Robertson. The indictment charged the murder of Anderson Bigby by the appellant, in Smith county, Texas, on the eighteenth day of August, 1880. The appellant was convicted of murder in the second degree, and awarded a term of five years in the penitentiary. The opinion of the court discloses sufficiently the substance of the testimony upon which the conviction was had.

Tried below before the Hon. L. D. Bradley. The indictment charged the appellant with an assault with intent to murder A. S. Grill, in Navarro county, Texas, on the twenty-fourth day of February, 1881; alleging that the weapon used was a derringer pistol. Upon this indictment he was tried and convicted, and awarded a term of two years in the penitentiary.

Tried below before the Hon. A. J. Booty. A term of two years in the penitentiary was the penalty assessed by a verdict of guilty, under an indictment, the charging part of which is as follows: “That Green Lawson, late of said county (Rusk), on the fourteenth day of September, A. D. one thousand eight hundred and eighty-one, and in said county, and State of Texas, did then and there, at about the hour of ten o’clock of the night of the day last above mentioned, did then and…

Tried below before the Hon. W. Charlton, County Judge. The appellant in this case was convicted upon an information charging him with the obstruction of a public .road, and his punishment was assessed at a fine of one dollar. The opinion fully discloses the single issue in the case. The motion for new trial assailed the charge of the court, and impugned the verdict as unsustained either by law or the evidence.

Tried below before the Hon. W. E. Collard. The opinion sets out the indictment, which charges the appellant with incest with Laura Griffin, the daughter of his wife, Mrs. Sarah Compton. The trial resulted in the conviction of the appellant, and the jury assessed his punishment at a ten years term in the penitentiary.

Tried below before the Hon. J. C. Robertson. This appeal is from a second verdict of murder in the first degree, returned against the appellant under an indictment charging him with the killing of Doctor H. W. Harrington, in Wood county, Texas, on the twenty-second day of March, 1880. The former case is reported in full in the ninth volume of these Reports, beginning on page 515. The penalty imposed by the jury in this last trial was a life term in the penitentiary.

Tried below before G. W. Chilton, Esq., Special Judge. The offense charged by the indictment was the fraudulent acquisition of the sum of five dollars, from one Calvin Johnson. (See Article 723 of the Penal Code.) The appellant was convicted, and his punishment was assessed at two years in the penitentiary.

Tried below before the Hon. A. S. Walker. The opinion of the court states the nature of the case. The penalty imposed by the verdict was a term of two years in the penitentiary. W. D. Wylie was the first witness' introduced by the State. He testified that at the time of this trial he had been a resident of Dallas, Texas, for about one year. Previous to his removal to Dallas, the witness had resided for fifteen or sixteen years in Caddo parish, Louisiana.

Tried below before the Hon. L. D. Bradley. The indictment charged the appellant and Jeff Dunn jointly with the theft of nineteen head of cattle, the property of Jesse Await, in Freestone county, Texas, on the twenty-fifth day of August, 1881. The appellant being alone upon trial was convicted, and his punishment assessed at two and a half years in the penitentiary.

Tried below before the Hon. P. P. Edwards. The indictment was for the murder of Abner Craig, in Nacogdoches county, on the tenth day of July, 1882. The jury returned a verdict of guilty of murder in the second degree against the appellant, and assessed his punishment at a twenty years’ term in the penitentiary. Doctor John Pears was the first witness called by the State.

Tried below before the Hon. J. C. Bussell. The indictment was joint against both of the appellants, and charged the theft of a horse, the property óf Felix Valdez. They were separately tried, and each, upon conviction, was awarded a term of five years in the penitentiary. Neither -transcript contains a statement of facts.

Tried below before the Hon. I. B. McFarland. The conviction was for the theft of a horse, the alleged property of C. C. Dulin, and a term of twelve years in the penitentiary was the penalty imposed. The opinion discloses the entire case.

Tried below before the Hon. I. B. McFarland. The offense charged by the indictment was an assault with intent to murder Catharine Geier. The trial resulted in the conviction of the appellant, and the assessment against him of a term of five years in the penitentiary as punishment. The transcript brings up no statement of facts.

Tried below before the Hon. W. E. Collard. The indictment charged the appellant with the crime of incest with his step-daughter, Alice Jameson. He was found guilty by the jury, and his punishment was assessed at two years in the penitentiary.

Tried below before the Hon. F. J. Lynch, County Judge. The information charged the appellant, an adult male, with an aggravated assault and battery upon the person of Waity Brown, a female. The trial resulted in the conviction of the appellant, and his punishment was assessed at a fine of twenty-five dollars. As indicated in the opinion, there was a total failure to prove the sex or age of the defendant. '

Tried below before the Hon. O. L. Tlirelkeld, County Judge. The indictment, without alleging the language used, charged the slander of Mrs. Barbara Schumaker, by imputing to her a want of chastity. The appellant was convicted, and his punishment was assessed at a fine of one hundred dollars and confinement in the county jail for fifteen days. The opinion sufficiently discloses the case.

Tried below before the Hon. D. P. Marr. The conviction was for the theft of three horses, the property of Jones & Co., and the penalty assessed was a term of five years in the penitentiary. The opinion discloses the case.

Tried below before the Hon. J. C. Bussell. The indictment was joint against Mirelles and one Beltram for the theft, from one Moore, of forty-eight goats of the value of one dollar and fifty cents each. The conviction was for the theft of property of a value less than twenty dollars, and punishment was assessed against each at confinement in the county jail for twelve months. \

Tried below before the Hon. Thomas M. Paschal. The conviction was for the theft of two hundred and fifty dollars in money, the property of J. D. Walker. The punishment assessed was a term of six years in the penitentiary. The one issue involved in this case is disclosed in the opinion.

Tried below before the Hon. G. J. Clark. The indictment charged the theft of two head of cattle, the property of John Arnold. The trial resulted in the conviction of the appellant, and the assessment against him of a term of two years confinement in the penitentiary, as punishment. The opinion discloses the one question in the case.

Tried below before the Hon. J. C. Robertson. The conviction was for the rape of one Mattie Clark, and the punishment assessed was a term of fifteen years in the State penitentiary. Mattie Clark deposed, for the State, that she was a female, fourteen years old, and lived with her parents on C. C. Woods’s place, in Smith county, Texas, about ten miles distant from the city of Tyler. She had known the defendant from her earliest childhood.

Tried below before the Hon. L. W. Moore. The indictment charged the appellant with an assault with intent to murder one Charlie Stephens, in Caldwell county, on the fifteenth day of June, 1882. The trial resulted in a verdict of conviction, and a term of two years was assessed against the appellant as punishment. Charlie Stephens was the first witness presented by the State.

Tried below before the Hon. T. M. Paschal. The entire substance of the indictment is stated in the head note. The punishment assessed by a verdict of guilty was a term of two years in the penitentiary. The testimony of the prosecuting witness Kelso was substantially that in April, 1882, the defendant approached him and inquired if he intended to attend the next term of the District Court of Uvalde county.

Tried below before the Hon. L. W. Moore. The conviction was for an assault with intent to murder one Dave Gillmore. The penalty imposed was a term of two years in the penitentiary. The opinion discloses the case. The motion for new trial assailed the charge of the court and denounced the evidence as insufficient to support the verdict.

<p>Appeal from the District Court of Orange. Tried below before the Hon. W. H. Ford.</p> <p>The conviction was for the murder of James Norris, the verdict being for murder in the first degree with a life term in the penitentiary assessed as punishment.</p> <p>The opinion of the court states the case in full.</p> <p>The motion for new trial brings in review the questions discussed in the rulings of this court,, and assails the rulings of the trial court on questions of evidence, to which exceptions do not appear to have been reserved.</p>

Appeals from the District Court of Polk. Tried below before the Hon. E. Hobby. The convictions in these two cases were for violations of the Local Option Law. The trials were had while the law was in force. The fines assessed as penalties were respectively fifty and twenty-five dollars. Pending appeal, the Local Option Law was revoked by vote of the people.

Tried below before the Hon. E. Hobby. The opinion discloses the entire case. Fifty dollars was the fine imposed by a verdict of conviction.

Tried below before the Hon. E. Hobby. The indictment charged the appellant with an assault with intent to murder his wife, Laura Harrell. He was convicted, and was awarded a term of five years in the penitentiary as punishment. Laura Harrell, the wife of the defendant, testified, for the State, that one night during the month of June, 1882, while she was in bed, the defendant came home, and she asked him why he had not brought something for her and her child to eat.

Tried below before the Hon. John Steihl, County Judge. The appellant was charged by information with the theft of a gold ring of the value of four dollars, the property of John Zett. His trial resulted in his conviction, and the punishment awarded was a fine of ten dollars and confinement in the county jail for one day. John Zett, a Bohemian, testified, for the State, through an interpreter.

<p>1. Indictment—Constitutional Law.—That an indictment shall conclude with the words: “Against the peace and dignity of the State,” is a requirement of the Constitution which can not be disregarded by the courts. Such words are matter of substance as well as form, and must be ' so construed.</p> <p>2. Same—Case Stated.—The indictment in this case concluded: “Against the peace and dignity of the State, this the third day of November, 1882.” Held, that exception that the indictment did not conclude as required by law should have been sustained'.</p> <p>3. Same—Cases Distinguished and Approved.—This case distinguished from Thomas v. The State, 8 Texas Ct. App., 344; and The State v. Pratt, 44 Texas, 93, cited and approved.</p> <p>4. Practice—Evidence.—In order to authorize secondary evidence of a lost instrument, some evidence, though slight, must be given to show that the instrument once existed; and it must be shown that a tona fide and diligent search has been made for it in the place where it should most likely be found, if the nature of the case admits of such proof.</p> <p>5. Same—Diligence.—What degree of diligence in the search of the lost instrument must be shown depends upon the peculiar circumstances of the particular case, but as a general rule the party is required to show that he has, in good faith, exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the ease would naturally suggest, and which were accessible.</p> <p>6. Same.—The question whether or not a proper basis for such proof has been laid is addressed to the discretion of the trial judge, which this court will not revise except in a ease of manifest error. See a state of case wherein a reasonable presumption of the loss is held to have been established, but wherein a more diligent search should have been shown.</p> <p>7. Same—Poroert—Proof oe Iíardwritivq—Case Stated.—It was in proof that the signatures alleged to have been forged were not in the defendant’s handwriting, but apparently in the handwriting of a lady. The theory of the defense was that the signatures were written by the daughter of one of the parties whose signature was alleged to have been forged. To meet this theory the State was permitted, over objection, to introduce the father of the lady, who testified that the handwriting was not hers. Held, error, (1) because the rule requires the production (unless its absence be accounted for) of the best evidence of the fact obtainable, which in this ease would have been the testimony of the lady herself; and (3) because, which was not done in this case, the witness should have first qualified himself as an expert, or by showing that he had seen the person write.</p>

Habeas Corpus on appeal from a judgment of the Hon. A. J. Hood, Judge of the Twenty-ninth Judicial District. McConnell, the applicant for bail, was held under a copias of the district court, charging him with the crime of murder, his victim being his own child, eighteen months old. He was awarded bail in the sum of ten thousand dollars, an amount which he avers is excessive. He prosecutes this appeal in an effort to secure a reduction.

Tried below before the Hon. W. H. Ford. The indictment was for the murder of Lewis Jackson. The verdict was for manslaughter, and it imposed as penalty a term of five years in the penitentiary. B. C. Miller was the first witness for the State. He testified, in substance, that he was standing within ten feet of the three parties to the difficulty, at the time it took place, in the town of Orange, Texas.

Tried below before the Hon. I. B. McFarland. The indictment charged the appellant with the murder of Major Williams. His trial resulted in his conviction of murder in the first degree, and he was awarded the death penalty. John McDade, a colored man, was the first witness presented by the State.

Tried below before the Hon. J. ft. Kennard. The indictment charged the appellant with an assault with intent to murder Richard Hammonds. He was convicted, and a term of two years in the penitentiary was assessed against him as punishment. In substance, the testimony of Hammonds was that on the day of the assault he met the defendant in the town of Huntsville, and had a conversation with him about a small amount of money due the defendant by the father of the witness.

Tried below before the Hon. H. 0. Pleasants. On page 230 of the tenth volume of these Reports will be found a report of the first trial and conviction of the appellant, and a resume of the evidence upon which that conviction was secured.

Tried below before the Hon. D. D. Claiborne. The trial in this case was upon an indictment filed in December, 1874, charging the appellant with the theft of a mare. The trial occurred at the August term, 1875, and resulted in the conviction of the appellant, and the assessment against him of a term of five' years in the penitentiary. The transcript was not filed in this court until December 29, 1882.

Tried below before the Hon. G. Cook. The appellant was indicted in the Criminal District Court of Galveston County upon the charge of perjury, which he was alleged to have committed in this, viz: That on the twenty-fourth of January, 1881, in the county of Rusk, he had sworn to a certain plea which was thereafter alleged to have been used by his direction in the District Court of Galveston County, in cause No. 10,382, Focke & Wilkins v. L. Gabrielsky, on the docket of said…

Tried below before the Hon. L. W. Moore. Upon an indictment charging him with the murder of Antone Roerich, in Fayette county, Texas, on the eleventh day of August, 1882, the appellant was found guilty of murder in the “fist” degree, and the death penalty was assessed against him as punishment. Doctor W. T. McLéary testified, for the State, that, on the night of the eleventh of August, 1882, he was called in to attend the deceased, Antone Roerich.

Tried below before the Hon. G. Cook. The indictment charged the burglary of the house of M. A. Davey. The penalty assessed by a verdict of guilty was a term of five years in the penitentiary. The record brings.up no statement of facts.

Tried below before the Hon. G. Cook. The opinion states the case. The punishment assessed was a term of two years in the penitentiary.

<p>1. Practice—Continuance—New Trial.—See the statement of the case for facts set up in an overruled application for a continuance, which, taken in connection with the facts proved at the trial, and being material, and not deficient in probability of truth, entitled the defendant to a, new trial.</p> <p>2. Same.—Whether or not an application for a continuance is sufficient in law, is the question for the court to determine when the application is heard, and an erroneous refusal of the same at the time is not rectified by the subsequent discovery that the desired evidence is cumulative.</p> <p>3. Continuance.—It is not now, nor has it ever been, the law that an application for a first continuance shall aver that the desired testimony cannot be obtained from any other source known to the defendant. Such averment is essential only in subsequent applications.</p> <p>4. Evidence—Alibi.—It is no reason for its exclusion that the desired evidence is cumulative proof of the defense of alibi. See the opinion in ex-tenso for evidence excluded on this ground, but held competent and of first importance to the defendant.</p> <p>5. Same—Practice.—In a prosecution wherein the wife was the alleged injured party, it was proper, as tending to establish motive, to permit the State to prove that the wife had instituted a suit for divorce, and that the same was pending at the alleged time of the offense; but it was error to permit the allegations of her petition in the divorce suit to be read to the jury as evidence, and especially so without explanation as to how far and for what purpose they were to be considered. More especially was it error to admit in evidence the judgment or decree of divorce, when it appeared to have been rendered subsequent to the alleged commission of the offense.</p> <p>6. Same—Case Stated.—A witness was permitted to testify that, at a time when the defendant was not present, he, the witness, directed Ms wife not to lend his gun to the defendant, as he apprehended a purpose of th,e defendant to kill a party other than the alleged injured party. Held, error, as incompetent, and as violative of the primary rule “that the evidence offered must correspond with the allegations, and be confined to the point in issue.” See the opinion in extenso on the subject.</p>

Tried below before N. B. Lindsey, Esq., Special Judge. The penalty imposed by a verdict of guilty was a term of five years in the penitentiary.

<p>Appeal from the Criminal District Court of Harris. Tried below before the Hon. Gustave Cook.</p> <p>The conviction was for the rape of Mrs. E. M. Scott, and the penalty of death was assessed by the verdict.</p> <p>Mrs. Scott was the first witness for the prosecution. Her testimony was brief and to the point. It was as follows:</p> <p>“My name is Effie M. Scott. On January 1G, 1882,1 lived near the ten-mile tank on the Galveston, Harrisburg and San Antonio railroad, in Harris county. At that time and place the defendant committed an outrageous assault upon me. I was at home; my husband was absent at his work. I was alone. The defendant came to my house about eleven o’clock a. m., and asked me how far it was to Galveston. I told him that he could find out at the tank. He asked me for something to eat. I told him that there was a boarding house over at the tank, and that he could get something to eat over there; that I had nothing cooked. He then asked me what time it was. As I turned to look at the clock, he caught me by the hand and neck, and I screamed. He then took an iron boot-jack and struck me twice over the head. I have the scars yet. (Here she exhibited the scars.) He then took a stove lid and beat me with it. He told me if I did not stop screaming he would kill me. He pulled up my clothes and got on me, and entered my private person with his male member. He ravished, and had carnal knowledge of me by violence and against my will. I know the defendant to be the man who committed the act. I identify him to be the man beyond all doubt. I went to the jail and picked him out and identified him among fourteen other negroes. The sheriff let them all out in the jail together, and I went up to the defendant and identified him as the man.”</p> <p>On her cross-examination, the witness stated that she had never seen the defendant before the assault. She could not possibly be mistaken in his identity. She recognized him by his general appearance. After the accomplishment of his purpose the defendant ran off toward’s Bray’s bayou. He came down the railroad from towards Stafford’s Point. The cross-examinatian utterly failed to shake the testimony of the witness.</p> <p>Phil. Fowler testified, for the State, that he lived at Stafford’s Point. On the morning of the alleged assault upon Mrs. Scott, at about half-past seven o’clock, he saw the defendant traveling down the railroad towards the ten-mile tank. Stafford’s Point is about ten miles distant from the ten-mile tank. The witness was positive that the defendant was the man he saw on that occasion.</p> <p>W. Parrish, the jailer, testified, for the State, that Mrs. Scott came to the jail to see if she could recognize the man who outraged her. He turned out fourteen prisoners, all colored, and she identified the defendant at once. Witness mixed them up, and she identified him again.</p> <p>The effort of the defense was to prove an alibi. The father of the defendant testified that the defendant was at home and in sight of home all day on the day of the alleged offense.</p> <p>The motion for new trial denounced the verdict as unsupported by the law or the evidence, assailed the action of the court in overruling the defendant’s motion for a continuance, and for refusing the special charge asked by the defendant.</p>

<p>1. Assault to Murder—Indictment—Evidence.—Under a separate indictment for assault to murder, it was proper to allow the State to prove that another did the actual shooting, and that the defendant was present, aiding and abetting him in the commission of the offense, although no such allegation was made in the indictment.</p> <p>2. Same.—An indictment for assault to murder need not allege all of the parties who participated in the attempted homicide in order to admit evidence that a party not on trial actually committed the offense while the accused on trial was present and aiding and abetting him.</p> <p>3. Principals and Accomplices.—One who is present, and, knowing the unlawful intent of another who commits an offense, aids or encourages by words, acts or gestures, is a principal and not an accomplice.</p> <p>4. New Trial —Newly Discovered Evidence — Diligence.—See the opinion for an application for new trial based upon newly discovered evidence which is held insufficient in that it shows a want of diligence.</p> <p>5. Assault to Murder.—Indictment for assault with intent to murder need not charge that the assault was committed with malice aforethought.</p>

Tried below before the Hon. R J. Calder, County Judge. The opinion discloses the case. The punishment imposed was a fine of one hundred dollars.

Tried below before the Hon. Gf. Cook. The indictment was for the theft of money over twenty dollars, the property of Robert Leslie. The trial of the appellant resulted in his conviction, with a two years term in the penitentiary assessed against him as punishment. R. H. Leslie' testified, for the State, that he resided at Leslie Station, on the Texas Western Railway, in Waller county, Texas.

Tried below before the Hon. H. Clay Pleasants. This appeal was prosecuted from the forfeiture of the appearance bond of James Thomas, bailed under a charge of theft of a gelding. The amount of the bond and judgment was three hundred and fifty dollars. The case is fully stated in the two opinions of this court.

Tried below before the Hon. B. T. Estes. The opinion discloses the entire case. The penalty imposed by the jury was a term of two years in the penitentiary.

Tried below be- • fore the Hon. B. T. Estes. The indictment charged the appellant with an assault to murder Dennis Blake on June 1, 1881. The verdict of guilty assessed as punishment a term of two years in the penitentiary. Dennis Blake, the alleged injured party, was the first witness introduced by the State.

Tried below before the Hon. A. E. Stratton, County Judge. The information charged the appellant and Samuel Hawkins jointly with the theft of a hog, of the value of ten dollars, the property of Joseph Bates. The jury found the appellant on his separate trial guilty, and assessed his punishment at a fine of twenty-five dollars, and confinement in the county jail'for one day. Asa Granger was the first witness introduced by the State.

Tried below before the Hon. L. D. Bradley. The indictment charged the theft, on May 27, 1876, of a steer, the property of some person or persons to the grand jury unknown. The appellant was convicted, and his punishment assessed at confinement in the penitentiary for two years. A. W. McFall, the first witness for the State, testified in substance that he was cattle and hide inspector for Navarro county in 1876.

Tried below before the Hon. L. D. Bradley. The charging part of the indictment in this case reads: “S. Stringer, late of the county of Navarro, laborer, on the fifth day of April, 1881, with force and arms, in the county of Navarro, and State of Texas, did then and there unlawfully and fraudulently obtain and acquire of and from one Isaiah Nelson, the owner thereof, one certain gelding, the same being the personal corporeal property of him, the said Nelson, by means of false…

Tried below before the Hon. L. D. Bradley. On the nineteenth day of May, 1880, an indictment was filed in the District Court of Navarro county charging the defendant and one William McWhorter with the theft of horses, mares, mules, etc., on the fourteenth of March, 1877, the property of M. S. Finch, Sr., and E. E. Finch.

Tried, below before the Hon. A. J. Hood. The indictment charged the appellant with the theft of a mare, the property of J. S. Peckham, in Tarrant county, Texas, on the thirtieth day of July, 1880. His trial resulted in his conviction, with his punishment affixed at a term of seven years in the penitentiary. The transcript brings up no statement of facts. Otherwise the opinion of the court discloses the case.

Tried below before the Hon. W. H. Ford. The indictment charged the appellant with the murder of Jasper Gibson, in Orange county, Texas, on the twenty-first day of May, 1882. His trial resulted in his conviction of murder in the second degree, and his punishment was assessed at a term of eighteen years in the penitentiary. Webb C. Gibson, the brother of the deceased, was the first witness introduced by the State.

Tried below before the Hon. E. Lewis. The appeal in this case was from the final judgment upon tho forfeiture of the appearance bond of Willis Arrington, bailed in the sum of four hundred dollars, under a complaint charging him with the theft of one steer and two yearlings. The State introduced in evidence the judgment nisi, and the bond.

Tried below before the Hon. E. Lewis. The appeal in this case was prosecuted from the forfeiture of the appearance bond of Willis Arrington, bailed under a charge of theft of one hundred and seven head of sheep. The amount of the bond and the judgment was four hundred dollars. The opinion sufficiently discloses the case.

Error from the District Court of Bowie. Tried below before the Hon. B. T. Estes. Error in this case was prosecuted for the forfeiture of the appearance bond of Simon Hart, bailed under a charge of theft. The amount of the bond and judgment was eight hundred dollars. The opinion discloses the entire case.

Writs of error from the County Court of Gonzales. Tried below before the Hon. J. S. Conway, County Judge. The writs of error in the first two of these cases were prosecuted from the forfeiture of the appearance bonds of Willis Arrington, bailed under charges of theft of sheep under twenty dollars; and, in the last case, from the forfeiture of a similar bond, under a similar charge, of John G-. Hester. Each bond and each judgment was for two hundred dollars.

Error from the County Court of Gonzales. Tried below before the Hon J. S. Conway, County Judge. The error in this case was prosecuted from the forfeiture of the appearance bond of John G. Hester, bailed under a charge of the theft of sheep under twenty dollars in value. The amount of the bond and judgment was two hundred dollars. The opinion sufficiently discloses the case.

Tried below before the Hon. T. L. Nugent. A former trial of this appellant for the murder of F. .A. Smith, in Hamilton county, Texas, on the second day of May, 1882, resulted in his conviction of murder in the first degree, with the death penalty assessed. This second trial resulted in his conviction of murder in the second degree, with a term of twenty-five years in the penitentiary assessed against him as punishment.

Tried below before the Hon. B. T. Estes. The indictment charged the appellant with the murder of Paul Pooler, in Cass county, Texas, on the second day of December, 1882. His trial resulted in his conviction of murder in the second degree, and he was awarded a term of five years in the penitentiary as punishment. R W. Brownell was the first witness called by the State.

Tried below before the Hon. H. C. Pleasants. The indictment charged the appellant with the theft of two horses, the property of V. Weldon, in De Witt county, Texas, on the fifteenth day of October, 1882. The appellant was convicted, and his punishment was assessed at a term of five years in the penitentiary. V. Weldon was the first witness introduced by the State.

Tried below before the Hon. J. S. Conway, County Judge. The indictment charges the appellant with the purchase of two hundred and seven head of cattle from Willis Arrington without having obtained a bill of sale therefor. The penalty imposed by a verdict of guilty was a fine of fifty dollars per head, aggregating the sum of ten thousand three hundred and fifty dollars.

Tried below before E. B. Perkins, Esq., Special Judge. The indictment was joint against the appellant and John Burton. It charged them with the theft of a horse, the property of W. W. Ivie, in Delta county, Texas, on the twenty-seventh day of December, 1882. Being alone upon his trial, the appellant was convicted, and was awarded a term of five years in the penitentiary. The first witness introduced by the State was W. W. Ivie.

Tried below before the Hon. B. T. Estes. The indictment charged the appellant with the murder of Charles Hefferman, in Cass county, Texas, on the twenty-second day of September, 1882. His trial resulted in his conviction of murder in the second degree, and the punishment assessed by the verdict was a term of twenty years in the penitentiary. L. Hall was the first witness introduced on behalf of the prosecution.

Tried below before the Hon. J. S. Conway, County Judge. This was an effort on the part of the State to appeal from the ruling of the court below quashing the appearance bond of Willis Arrington, bailed in the sum of five hundred dollars, under ah information charging him with the offense of purchasing cattle without taking a bill of sale therefor.

Tried, below before the Hon. W. H. Ford. The indictment was joint against the defendant, Hugh Harwell and Charles Frazier, charging them with the robbery of Joseph Bunn, in Orange county, Texas, on the thirty-first day of July, 1883. The defendant was tried alone, convicted, and awarded a term of ten years in the penitentiary. Thomas Carraway, who was the first witness presented by the State, testified that he knew the defendant by sight, and pointed him out in court.

Tried below before the Hon. E. Hobby. This is the conclusion of the long series of trials of the appellant for the murder of Green Butler, in Galveston county, on the nineteenth day of May, 1872. For the reports of former trials on appeal see 37 Texas, 368; 42 Texas, 360; Id., 377; 1 Texas Court of Appeals, 368; 3 Texas Court of Appeals, 668. On this trial he was convicted of murder in the first degree, and was awarded a life term in the penitentiary as punishment.

<p>1. Indictment—Joinder oe Several Offenses.—Before the revision of the codes, it was permissible to charge two or more offenses in separate counts of the same indictment; and the further rule was, that when the charges were substantially for the same offense, and the several counts were introduced for the purpose of meeting the evidence as it might transpire, the State was not required to elect upon which count to proceed. And the Revised Code of Procedure provides that “an indictment or information may contain as many counts charging the same offense as the attorney who prepares it may think necessary to insert, and an indictment or information shall be sufficient if any one of its counts be sufficient.” See Code of Criminal Procedure, Article 433.</p> <p>2. Same—Practice.—An indictment which, in separate counts, charges forgery and the utterance of a forged instrument knowing it to be forged, is not vulnerable to a motion to quash upon the ground that it is duplicitous and charges two offenses; nor is it obnoxious to the objection that two distinct and separate felonies are charged in the same indictment. See the opinion in extenso on the question.</p> <p>3. Same—Forgery—Case Stated.—After the evidence was concluded, the State elected to claim a conviction under the second count, and abandoned the first only so far as to disclaim a conviction under it, and it was not stricken out. Objection is made that thereby the second count was rendered insufficient of itself, and did not charge any offense, and could be made sufficient only by reference to and supplying its defects from the allegations in the abandoned first count. Held, that, not having been stricken out or abandoned for any purpose other than that stated, the first count was still for all other purposes a part of the indictment, and was competent, if it could, to supply the deficiencies, if any, in the second count. See the opinion in extenso on the question.</p> <p>4. Same.—It is contended that the judgment is erroneous because it was shown by the evidence that the forged instrument was not dated when it was offered to the prosecuting witness, and that, before he accepted it, he dated it by agreement with the defendant. Held, that a date not being indispensable to an instrument creating a pecuniary obligation, and the forged instrument in question being such as that, had it been genuine, it would have created a pecuniary obligation on the maker, the objection is not tenable.</p>

Tried below before the Hon. J. C. Russell. The appellant was indicted for the murder of Lewis Meyers, on or about the thirtieth day of June, A. D. 1882. The indictment charges murder by shooting with a pistol with express malice aforethought. He appeals from a conviction of murder in the second degree, wherein the verdict assessed the punishment at fifty years in the penitentiary.

Tried below before the Hon. J. C. Bussell. The appellants were indicted for the theft of a horse, the property of Felix Valdez, in Webb county, Texas, on the third day of September, 1882. They were tried separately, convicted, and the appellant Flores was awarded a term of five' years, and the appellant Bernal a term of six years, in the penitentiary.

Tried below before the Hon. A. J. Hood. The indictment charged the appellant with the theft of two horses, one the property of Josiah Lemons, and the other the property of John Lemons, in Tarrant county, Texas, on the fifteenth day of September, 1882. His trial resulted in his conviction, and he was awarded a term of seven years in the penitentiary.