Volume 14 — Texas Court of Appeals Reports

<p>1. Practice — Case Stated.—Before announcing ready for trial, the defendant asked permission of the court to confer with certain witnesses for the State. The court granted the request, but, upon the suggestion of the county attorney, stated in the hearing of the witnesses, that they were not bound to confer with the defense, nor to disclose their testimony to him or his counsel, unless they wished to do so; whereupon the county attorney, in open court, stated that he advised the witnesses not to confer with the defense, and they refused to do so. The court refused to compel them, and the defense was required to proceed. Held, that there is no power in the trial court to compel a witness to disclose to the opposite side, or to any one, what his evidence will be on the trial, and that while the action of the county attorney in this instance may not have been in good taste, it is no ground for reversal.</p> <p>2. Mtjrdbr.—Evidence op General Character op Deceased is admissible only when it is shown that at the time of the homicide the deceased did some act indicating his purpose then to take the life of the defendant, or do him some serious bodily harm. See the opinion in extenso for a state of case wherein it is held that a proper predicate was not laid for the admission of evidence of the general character of the deceased, as a violent and dangerous man.</p> <p>3. Same—Practice—Evidence—Case Stated.—In explanation of his recent purchase of a pistol, and of his possession of the same on the day of the homicide, the defendant proposed to prove that at that time it was the prevailing custom and habit of the people of that county to carry pistols or other deadly weapons about their persons. Held, that the court below did not err in excluding the proposed testimony, which related only to the custom of the people in general, and not to his own habit. See the opinion in extenso on this question. •</p> <p>4. Pact Case.—See evidence held sufficient to sustain a conviction for murder in the first degree.</p>

The record of this case has not reached the hands of the Be-porters; but all matters of fact involved in the ruling are fully stated in the opinion of this court

Tried below before the Hon. S. D. Steedman, County Judge. The prosecution in this case was based upon an information charging the appellant, as a robust person, with an aggravated assault upon T. M. James, an aged and decrepit person. The trial resulted in the conviction of the appellant, and he wasu fined twenty-five dollars.

Tried below before the Hon. W. S. Moore, County Judge. Appellant was charged by indictment with selling intoxicating liquor, to wit, whisky, in violation of the local option law when in force in the county of Lamar. The case was first tried before a justice of the peace, and the defendant was found guilty, and a fine of fifty dollars was adjudged against him.

Tried below before the Hon. R E. Beckham, County Judge. The indictment charged that the appellant, on May 21, 1882, “ with force and arms did unlawfully labor on Sunday, against the peace and dignity of the State,” and in a second count it charged that at the same time and place he “did compel and force one of his employees, to wit, Guy Price, to labor on Sunday; contrary,” etc. The statement of facts shows that the appellant and one May-field owned two buildings in Tarrant…

Tried below before the Hon. C. C. Scruggs, County Judge. The appellant was convicted of obstructing a public road leading from Elizabethtown, in Denton county, towards Aurora, in the county of Wise. The penalty assessed against him was a fine of one hundred dollars. His motion for a new trial was overruled, and he gave notice of appeal.

Appeals from the County Court of Lamar. Tried below before the Hon. W. S. Moore, County Judge. The opinion in the above entitled cases disposes not only of them but also of five others pending in this court on appeal from the County Court of Lamar.

Error from the District Court of Denton. Tried below before the Hon. C. C, Potter. . Appellants were the sureties on the bail bond of one George Renwick. The penalty of the bond was one thousand dollars, in which sum the makers bound themselves “jointly and severally.” Judgment final was rendered against them by default. The opinion of this court discloses the grounds on which the appellants ask a reversal of the judgment.

<p>1. Practice—Evidence.—In a trial for assault with intent to murder, it being proved that the witnesses were experienced in the use and handling of fire arms, it was not error to permit them to testify that they tested the condition of the gun of the defendant by putting their fingers in the muzzle, shortly after the alleged offense, and that, in their opinion, it had been recently discharged.</p> <p>2. Same.—It was competent for a State’s witness to testify that, under the direction of the sheriff, he applied the boot taken from the foot of the defendant to tracks found near the place of the assault, and found them to correspond. Such evidence, though not sufficient of itself to sustain, a conviction, is an item of circumstantial evidence, and may be considered as such.</p> <p>8. Charoe of the Gourt—Fact Case.—See evidence held sufficient to sustain a conviction for assault with intent to murder, and whereunder there was no occasion for the charge of the court to discriminate between express and implied malice, or to define implied malice, inasmuch as, if death had ensued, the offense could only have been murder in the first degree.</p>

Tried below before the Hon. G. N. Aldredge. The indictment charged the appellant with the theft of a pocketbook and four dollars and fifty cents from the person of Samuel Salkill, in Dallas county, Texas, on the first day of December, 1882. He was convicted, and was awarded a term of two years in the penitentiary.

<p>Í. Interpretation oe the Code.—Article 3 of the Revised Penal Code amends the corresponding article of the original Code, so that now it is no longer necessary that an offense be “ expressly defined.” If the act or omission eo nomine is made a penal offense, and a penalty is affixed thereto, it becomes an offense punishable by law.</p> <p>2. Sodomy is, by Article 342 of the Penal Code, made an offense against the law of this State, with a penalty affixed.</p>

Tried below before the Hon. M. B. Templeton, County Judge. The opinion sufficiently states the case. A fine of one hundred dollars was the punishment assessed against the appellant.

<p>Appeal from the County Court of Dallas. Tried below before the Honorable R. E. Burke, County Judge.</p> <p>The information in this case charged the appellant with an aggravated assault and battery upon one S. A. Bush, with a grain shovel, which was alleged to be a deadly weapon. The conviction, however, was for a simple assault only, and a fine of five dollars was the punishment assessed. The judgment entry recites a trial by “a jury of good and lawful men, to wit: S. P. Cross and four others,” but fails to disclose how such a jury was impaneled. The defendant’s motion for a new trial was the first stage of the case at which objection to the jury was taken. The motion was overruled and the defendant appealed.</p>

Tried below before the Hon. T. C. Goodner, County Judge. The county attorney of Collin county, Texas, presented an information in the county court of said county, on the twenty-seventh day of February, 1883, under Article 496, Revised Criminal Code, based upon the written affidavit of one Lafayette Wisdom, charging that appellant did, on the thirteenth day of February, 1883, unlawfully commit an aggravated assault and battery upon the person of D. H. Wisdom, with intent to…

Tried below before the Hon. W. P. H. Douglass, County Judge. The appellant was convicted of obstructing a public road in Guadalupe county, known as the Prairie Lea and New Braunfels road. The penalty assessed against him was a fine of ten dollars. His motion for new trial was overruled, and he gave notice of appeal.

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

<p>1. Informations—Affidavit—Practice—Construction of a Term.— Under the law of this State an information cannot be presented until oath has been made by some credible person charging the defendant with an offense. The words “ credible person ” must be construed to mean a competent as well as a credible witness.</p> <p>2. Adultery—Evidence—Affidavit.—The husband is not a competent witness against the wife in a prosecution for adultery, and to the same extent he is incompetent to make an affidavit charging her with that offense. See the opinion in extenso on the question.</p> <p>3. Evidence—Impeachment of Witness—Practice.—The party introducing a witness can not attack his testimony in any manner, unless the witness has stated facts injurious to such party.</p>

Tried below before the Hon. G. H. Noonan, The conviction was for cattle theft, and a term of two years in the penitentiary was the punishment assessed.

Tried below before the Hon. D. Moore, County Judge. The opinion discloses the case. The punishment assessed by a verdict of guilty was a fine of one thousand dollars. This case was submitted upon the testimony of the prosecution alone.

Tried below before the Hon. J. D. Bice, County Judge. The information charged the unlawful practice of medicine in Caldwell county, Texas, and was framed under Article 398 of the Penal Code. The verdict of guilty assessed the punishment of the appellant at a fine of fifty dollars. It was proved, in behalf of the State, that the appellant practiced medicine, for pay, prior to filing his certificate of qualification for record in the District Court.

<p>1. Theft—Charge of the Court.—In a trial for theft the court charged as follows: “ Possession of the person unlawfully deprived of property is constituted in all eases where the person so deprived of possession is, at the time of taking, lawfully entitled to the possession thereof as against the true owner.” Held, correct in the abstract, but, in view of the evidence, erroneous, to the prejudice of the accused in this case.</p> <p>3. Same—Ixtestt.—Upon the question of intent, the court charged in a theft case as follows: “ The intent in all criminal cases is judged of from the act.” Held, error, inasmuch as it confines the question of intent to the act, whereas intent is to be deduced from all the circumstances remotely or immediately attending the taking.</p> <p>3. Same—Ownership.—Upon the question of ownership the court charged: “If you believe from the evidence that the property as charged was not the property of the person as charged, beyond a reasonable doubt, you will acquit the defendant.” Held, error, as announcing the very converse of the correct rule, and requiring the jury to believe beyond a reasonable doubt that the property was not the property of the person in whom it was alleged.</p> <p>4 Same.—Possession op recently stolen property is not of itself sufficient to sustain a conviction for theft. The rule is otherwise, however, when the recent possession of such property is unexplained, and the circumstances surrounding it are such as to demand explanation. And though the defendant be found in possession of property recently stolen, he is not required to show that his possesson is lawful; hence it was error to charge that, “if stolen property is traced to the recent possession of j the defendant he must show that he came lawfully by it, or the law con- ; aiders him the thief." See the opinion in extenso on the subject. i</p> <p>5. Same.—The eleventh paragraph of the charge is as follows: “If the jury find that the property alleged to have been stolen was the property of the defendant, and that he had exercised actual control, care and management over the same, prior to the alleged taking, you will find the defendant not guilty.” Held, error, inasmuch as when the evidence tended to show that the defendant was the legal owner of the property, the effect of the charge was to destroy such defense, unless the defendant could show that he exercised actual control, care and management of the property prior to the taking.</p> <p>6. Same—Reasonable Doubt.—The guilt, and not the innocence, of the . accused is the affirmative proposition, which, in every criminal prosecution, must be established beyond a reasonable doubt; and hence the trial court erred in charging the jury that, “if you have any reasonable doubt as to the guilt or innocence of the defendant, you will give him the benefit of the doubt and acquit him.”</p> <p>7. Theft—Fact Case.—See evidence held insufficient to support a conviction for theft.</p>

Tried below before the Hon. A. S. Walker. The opinion discloses the nature and result of the prosecution. J. F. Cameron, the first witness for the State, testified, in substance, that he lived on Onion creek, in Travis county, Texas, On the evening of February 7, 1882, a little after dark, he turned his horses out on the range. The horses included the stallion in question, two geldings and a mare.

<p>Appeal from the District Court of Dallas. Tried below before the Hon. G. H. Aldredge.</p> <p>The indictment charged the appellant with the theft of two horses, the property of John Collier, in Dallas county, on the fourth day of March, 1882. He was convicted, and was awarded a term of seven years in the penitentiary.</p> <p>John Collier was the first witness, for the State. He testified that he worked his certain sorrel horse the whole of the day on the last Monday in March, 1882, and at night he turned the animal into his lot, from which he was missing next morning. He next saw the animal, eight or nine days later, in Eastland, East-land county, in possession of the sheriff, who also had Greorge Cook, John Broach and Joe McGee in custody, charged with the theft of this animal. Each of these three parties denied all claim to the animal.</p> <p>On Tuesday, the day after the horse was lost, the witness learned, upon inquiry, that the defendant and Joe McGee had left his neighborhood and gone west, bound for Eastland; and he immediately left in pursuit. At Arlington, a point eighteen miles west of his house, the witness heard of his horse from a party of travelers. Following on that road in the direction of Fort Worth, beyond Arlington, the witness overtook Biley Pemberton, a neighbor, who had lost a horse on the same night that the witness lost his. When the witness heard of his and Pemberton’s horses, at Arlington, they were reported to .be in the possession of two men of whom witness could get no description. Witness and Pemberton next heard of their horses when they had reached a point beyond Fort Worth. Along this route beyond Fort Worth, the witness and Pemberton traced the track of a wagon drawn by a yoke of bulls, and within a day or two came upon a camp near a small creek, which camp had been occupied by four men, having in their possession horses answering the description of those stolen, and a wagon drawn by a yoke of bulls. Beaching a point eight miles distant from Eastland, the roads forked, and the witness took and followed one and Pemberton the other. When the witness reached Eastland, he found Pemberton already arrived.. The witness’s horse was there in possession of the sheriff. George Cook, John Broach and Joe McGee were there in the custody of the sheriff. The defendant • was not there, but, knowing that he had a brother-in-law living a few miles out from Eastland, witness, with a party, went there, found and arrested him. George Cook, a brother of the defendant, escaped from the officers at Eastland, and has not since been seen. Joe McGee lived in the witness’s neighborhood, and owned the yoke of oxen, and was seen in company with the defendant a few days before the theft of the animals. He has been sent to the penitentiary for the theft of these animals, John Broach is under indictment for this theft, and is out on bond. Witness could not say that these parties were familiar with the stock of the country, but knows that they had .seen his horse often enough.to know it. Witness never saw the defendant in possession of his horse which was stolen on the night of March 27, 1882, and which was taken without the consent of the witness. An indictment for horse theft is now pending against the witness in the District Court of Dallas county, but witness asks no more than a trial as fair as he thinks defendant will get in this case.</p> <p>Biley Pemberton was the next witness for the State. He testified that he lost a horse from his place near Collier’s place, in Dallas county, on the same night that Collier lost his. He saw the defendant and Joe McGee together, near his farm, on the Sunday before, and on the following Tuesday learned that they nad gone west with a horse owned by defendant, and a yoke of bulls, which were worked as steers, owned by McGee. Witness started in pursuit, and near Arlington, in Tarrant county, met up with John Collier, on the same pursuit, and the two traveled on together. At Arlington they heard of their horses for the first time, but could get no description of the parties who had them in possession, nor of the exact time they passed through Arlington. Beyond Fort Worth witness and Collier got on the trail of the bulls, wagon and two persons. A day or two thereafter, and some distance beyond Fort Worth, they again heard of the horses, bulls and wagon, in possession of four persons who had camped one night on a small creek. Collier and witness separated at the forks of the road eight or nine miles from Eastland, each taking one of the forks. After riding along his route a short distance, the witness saw parties ahead, and, leaving the road and riding around them, the witness reached a point near the road ahead of them, and secreted himself so that he could see them as they passed. As they passed witness recognized the defendant and Joe McGee in the wagon, driving Collier’s horse and another horse which the witness did not know. George Cook and John Broach came on behind the wagon, and were driving the bulls. They were riding horses which the witness did not know. The witness’s horse was not in their possession. When the party had passed the witness, he again took the brush, passed them, rode rapidly into Eastland and notified the officers.</p> <p>George Cook soon came into Eastland, and was arrested. Witness and the officers then went in quest of the other parties, and the wagon and stock. They found Joe McGee and John Broach with the wagon, camped a hundred or two yards off the road, and arrested the two men. Collier’s horse, another one, the wagon and the bulls were in their possession. Neither McGee nor Broach claimed the Collier horse. Witness and the officers returned to Eastland with McGee and Broach, and found Collier, who had then reached town. George Cook escaped from the officers in Eastland, and has not been seen since. John Broach was released by the officers, over the protest of the witness, but has since been indicted in Dallas county and is now under bond. Collier and the officers went out and arrested the defendant somewhere in the country. McGee and the defendant were brought to Dallas, and were indicted for this theft. McGee has been convicted and is now in the penitentiary.</p> <p>Dave McGee testified, for the State, that he was a brother of Joe McGee, heretofore convicted and now serving a term in the penitentiary for this offense. At the time of this offense Joe McGee lived with his mother, in the neighborhood of the witnesses Collier and Pemberton. On the Sunday before this theft, the defendant came to the McGee house, and said that he had come for Joe to go west with him to Eastland county. They left for Eastland that morning, Joe taking with him, at defendant’s request, a yoke of bulls he owned. Defendant had a gray horse with him when he came to the house. When the two left, they took with them Joe’s bulls and the defendant’s horse. Defendant said at the time that he had sent his brother, George Cook, to get a wagon in which he intended to work the bulls. Joe McGee owned a horse at that time, but it was lost. Witness saw no more of them until after their arrest and return to Dallas county.</p> <p>J. W. Vincent was the first witness for the defense. He testified that some time in March, on Tuesday, he saw the defendant and a young man whom, from description, he supposes to have been John Broach, in camp on Sycamore creek. They had a yoke of cattle standing near a wagon. Defendant said they had no horses, but that his partners behind, who were going with him to a hog ranch in Eastland county, would bring along two or three. The witness saw the same two parties that night at a dance at the house of a Mrs. Deitz, who lives in the suburbs of Fort Worth.</p> <p>Mrs. E. Deitz testified for the defendant that she lived in the suburbs of Fort Worth; that on Tuesday, March 28, she saw the defendant and John Broach at her house; that they returned that night as attendants upon a dance which occurred there at that time. Witness had known defendant seven or eight years.</p> <p>Carrie Samuels, who attended the dance at Mrs. Deitz’s, corroborated that witness.</p> <p>Motion for new trial assailed the sufficiency of the evidence, and was overruled.</p>

<p>Appeal from the District Court of Colorado. Tried below before Wells Thompson, Esq., Special Judge.</p> <p>The indictment charged the appellant with the murder of Benjamin Brooks, in Colorado county, Texas, on the twenty-eighth day of November, 1882. His trial resulted in his conviction of murder in the first degree, with a life term in the penitentiary assessed against him as punishment.</p> <p>Henry Williams, a brother-in-law to Benjamin Brooks, was the first witness introduced by the State. He testified that the deceased came to his death in Colorado county, Texas, on the twenty-eighth day of November, 1882, from a gun shot wound. The ball passed through the left arm of the deceased and entered his left side. Deceased at the time of his death was living on the McBroom place. The witness at that time lived on the Pinchback place. William Usher, the half-brother of the defendant, lived on the same place, about two hundred yards distant from the witness, and the defendant lived with him. The Pinchback place is about six miles from Columbus, in Colorado county. The deceased was a married man, but he and his wife, Alice Brooks, had not lived together for two or three months at the time of the killing. The body of the deceased was found, on the night he was shot, lying in the road on Lake prairie, about six hundred yards from where he lived, about one mile from where the witness lived, and about three-quarters of a mile from where Alice Williams lived.</p> <p>Just after dark on the evening of the killing, the defendant came to the house of the witness, and said to Rhoda Williams, wife of the witness and sister of the deceased: “You had better go down on the Lake prairie road and see about your brother Brooks, as I have shot him.” No attention was paid to this advice, as no one believed the statement of the defendant. The defendant then went on to the house of his brother, William Usher, some two hundred yards distant. After a short time he returned to the house of the witness and called for Rhoda Williams, and told her that it was true that he had shot her brother Brooks, and that she had better go and see about him. Shortly after this, Henry DeGraffenreid came to the house of the witness, and reported that he had seen Ben. Brooks lying dead by the side of the road on Lake prairie. Thereupon, with the view of arresting the defendant, whose horse at that time was hitched at Usher’s house, the witness and others went near to the house and watched the house, but the defendant at no time came near it.</p> <p>Some one went to Columbus to notify the officers of the killing, and about midnight Mr. George B. Crawford, the constable of precinct number one, arrived with a jury of inquest, and the witness and his wife Rhoda went to the body. A great many were present when the witness, his wife, Mary Brooks and Manuel Johnson got to the body. No knife, pocket-book or money was found on the body. The clothes were not powder-burned. When the defendant came to the house and told Rhoda Williams that he had killed her brother, he did not say why he had done so. Ho one of those at the witness’s house went to where DeGfraffenreid said the body lay until Mr. Crawford reached the house. All were asleep at that time. The witness identified the defendant on trial as James Williams.</p> <p>Rhoda Williams, the wife of the first witness and sister of the deceased, was the next witness for the State. The substance of her narrative was the same as that of her husband, with this addition: “About four or five o’clock on that evening, before he was killed, my brother was at our house. Alice Williams and Alice Brooks, the deceased’s wife, Mary Brooks, his sister, and Amanda, William Usher’s wife, were also there. The deceased remained there some time. He brought a satchel with him for his little boy’s clothes, which were at my house. While there he and his wife Alice went a short distance to a house in which they had previously lived together, after the little boy’s stockings.</p> <p>“The deceased, Ben. Brooks, came back in a little while, and his little sister carried the satchel containing the boy’s clothing to him at the gate, and the deceased and his sister, Alice Williams, started home, their road laying together for some distance. The deceased was carrying Alice’s baby when they left.</p> <p>“While Ben. Brooks was at my house that evening, he had out a knife with which he cut some tobacco to put in his pipe. It was a brown handled pocket knife, smaller at the ends than in the middle. I would know the knife if I were to see it. I have never seen it since. He also had five dollars in money in his money purse, and something which he called his ‘jack’in a little leather case about as long as my finger.”</p> <p>Mary Brooks, sister of the deceased, was the next witness for the State. Her testimony was, in substance, the same as that of Henry and Rhoda Williams, with the exception that she did not see the deceased with any money or a “jack” at Rhoda Williams’s house, on the evening he was killed, but saw him with a knife, tobacco and a pipe.</p> <p>Alice Williams, the half-sister of the deceased, next testified for the State, and her narrative was similar to that of Rhoda Williams as to what transpired at Rhoda’s house that evening at five o’clock, except that she did not see the deceased have any money or anything he called his “ jack.” She was not at Rhoda’s house that night at dark, when the defendant went there and told that he had shot Ben. Brooks.</p> <p>Manuel Johnson testified, for the State, that he was in no way-related to any of the parties figuring in this case. He was at the house of Henry Williams on the evening and the night of the killing of Brooks. The defendant came to Henry Williams’s house while the witness was there, and called to Rhoda Williams, and told her that he had shot her brother, Ben. Brooks, down on the Lake prairie road, and that she had better go and look after him. Defendant then went to William Usher’s house, about two hundred yards distant. This occurred about dark. The defendant did not say why he killed the deceased. After hearing this, the witness went home.</p> <p>Alice Brooks, the widow of the deceased, was the next witness for the State. She testified that, át the time of the death of her husband, he and she had not lived together for two or three months, but expected to live together again. The witness was at the Rhoda Williams house on the evening of the killing, and gave, in substance, the same account of what transpired ¡mere as that given by Rhoda Williams. She stated further that, after the separation of herself and husband, the defendant ''went with her several times, and was paying her some attention.” The killing occurred on Saturday night, or evening, after five o’clock. On Friday, the previ.ous night, Bob Jackson gave a sociable at his house in the neighborhood, which was attended by quite a number. Lemonade and other refreshments were on sale. The defendant invited the witness and another woman to drink lemonade. Just as the party finished drinking the lemonade, the deceased came up and entered into conversation with the witness. While this talk was going on, the defendant called to the witness: “Come on, let’s promenade.” The deceased said to him: “Wait until I get through.” The defendant said to the deceased: “What sort of a dog-gone way is this you have of doing? You quit a woman, and then keep dogging after her.” They had some words, went out of doors, and the witness saw no more.</p> <p>Willis Pano, for the State, testified that he was at the Bob Jackson party on Friday night before the Saturday of the killing. The defendant and the deceased had some words about the wife of the deceased, and the two went out of doors. The deceased, during the quarrel, called the defendant a son of a b—h, to which the defendant replied: “I will take that off you, because I do not know any better about it; but I will go to town to-morrow and see if you are divorced from Alice, and if you are, you had as well be as dead as a log.”</p> <p>George W. Crawford testified, for the State, that he was constable of precinct number one, Colorado county, Texas, and, as such, he summoned a jury of inquest, and, with them, went to the body of Ben. Brooks, which he found lying on the road in Lake prairie. This was on the night of the killing.</p> <p>At about three o’clock on the evening of the killing, the defendant came to the witness at his office in Columbus, and asked him if Ben. Brooks had got a divorce from Alice Brooks. The witness replied that he had not, and the defendant asked when he would get a divorce. The witness replied that he would get it at the March term of the District Court. The defendant then said: “Ben. Brooks and I had a fuss last night.” Witness asked him about the difficulty, and the defendant replied: “ You will hear from me soon, and I will have something to tell you.” Witness asked: “Why can’t you tell me now?” He replied: “ Well, it is all about a woman, and you will hear from me again.” This occurred on the evening of the killing of Brooks.</p> <p>Y/hen the witness got to the body he found that Brooks had been shot through the muscle of the left arm, the ball passing into the left side. A satchel was under his head, and appeared to have been placed there by some one. Witness found nothing on the body but a leather pouch. It was possible that the body was searched by some one before the witness arrived.</p> <p>Dick Beason, the defendant’s step-father, testified, for the State, that he lived on George Perry’s place, some two miles from the Pinchback quarters, where the defendant lived. About three o’clock on the evening of the killing the defendant came to the house of the witness and asked if the witness objected to his shooting off his pistol and reloading it. The witness replied that he had no objections, and the defendant discharged his pistol twice. The witness did not know what he did after firing the two shots.</p> <p>C. E. Crarey, for the State, testified that he was one of the jury of inquest called by Mr. Crawford to view the dead body of Ben. Brooks. He examined the body carefully, and found no powder burns about it. The ball passed straight through the muscle of the left arm, and went straight into the left side. From the examination made, it appeared to the witness that the left arm of the deceased was hanging straight down by his side at the time the shot was fired.</p> <p>J. L. Townsend testified, for the State, that he was the sheriff of Colorado county. He made diligent search for the defendant after the killing of Ben. Brooks, but failed to find him. The State closed.</p> <p>William Usher was the first witness for the defense. He testified that he and the defendant were half-brothers. They were together in the town of Columbus on the day that Brooks was killed. The witness saw the defendant at the auction store in that town between three and four o’clock, when the defendant started home. The witness remained in town later, and did not reach home until about dark that night. The defendant was not at home when the witness arrived, but the witness’s wife informed the witness that he had been there. In a few minutes the defendant came to the house. The witness met him at the gate, when he said to the witness: “Brother, as I was coming home a while ago, Ben. Brooks met me in the road and said to me, ‘ How about our fuss of last night?’ and I said to him: ‘ It is all over with me—that I did not want to have anything more to do with it;’ when Ben. said: ‘ Well, by Gr—d, it’s not all over with me!’ and rushed on me with his knife drawn, and was in the act of cutting me, when I shot him.” He said to the witness that he would not have shot Ben. had he not been compelled to do so to save his own life. Defendant then left the witness’s house on foot. He was living with and picking cotton for the the witness at the time.</p> <p>Handy Usher testified, for the defendant, that she was his sister-in-law. She was at Rhoda Williams’s house on the evening that Ben. Brooks was killed. She was there when Ben. Brooks came to the house, was there all the time that he was, and was there for some time after he left. She did not see Brooks have a pocket book out at the house, nor did she hear him say anything about his “jack.” Had anything of this nature occurred, the witness was positive that she would have seen and heard it. Nothing of the kind occurred. She saw him with a knife, which she described, some tobacco and a pipe. The witness was here shown a knife, which she declared looked very much like the knife used by Brooks that evening in cutting tobacco. If it was not the same knife it looked very much like it.</p> <p>The witness lived about one hundred and fifty yards from Rhoda Williams’s house. After she went home that evening, and at about good dusk, the defendant rode up to her gate, and said to her that on his way home that evening from Mr. Hester’s ■quarters, he met Ben. Brooks and had to shoot him; that he would not have done so had he not been compelled, in order to save his own life; that Brooks was rushing on him with an open knife drawn. This was before William Usher, the husband of the witness, got home. The defendant then left the house, but returned in a short time. Meantime the husband of the witness .got home, and met the defendant at the fence, where they talked for some time. Shortly the defendant left on foot, and the witness saw no more of him for some time.</p> <p>William Glover testified, for the defendant, that he lived on Mr. Hester’s plantation. He saw the defendant at Mr. Hester’s quarters,- “running on” with the hands on the evening that Brooks was killed. Defendant left Hester’s quarters about dusk to go to William Usher’s, where he lived. In going from Hester’s to Usher’s, the defendant would have had -to travel the road upon which the body of Ben. Brooks was found. The body was found about five or six hundred yards from Hester’s, and about one mile from Usher’s house.</p> <p>Jake Stephens testified, for the defense, that he was at the supper on Mr. Pinchback’s place on the night before the killing. He saw the defendant and the deceased there, and heard the controversy between them. He heard the deceased call the defendant a d—d son of a b—h, two or three times. He heard •the defendant reply: “Well, Ben., I will take that off of you, because I don’t know any better.” The witness was present all of the time and did not hear the defendant make any threats of any kind against the deceased.</p> <p>Sumpter Lewis testified, for the defendant, that he went with •others to where the body of Books lay after he was killed. About ■three months before this trial, while he was going from one plantation to another, he had occasion to pass near the place where the body was found. Hear where the body was found, the witness found the knife which was exhibited to Mandy Usher. He found it in a wagon rut, with the large blade open. The road where the knife was found was a road over which cotton had been hauled. Asa Johnson was with him when he found the knife.</p> <p>Asa Johnson testified, for the defense, that he was with Sumpter Lewis when the latter found the knife exhibited in court. Lewis found the knife on the edge of a wagon rut, on the road leading from Hester’s farm to Pinchback’s, in Lake prairie.</p> <p>George Best testified, for the defense, that he was deputy sheriff' of Colorado county. Some two weeks after the defendant was charged with the murder of Ben. Brooks, he came to the jail and surrendered. Defense closed.</p> <p>Rhoda Williams was re-called by the State in rebuttal. She testified that she would know the knife Brooks had at her house on the evening he was killed. The knife exhibited, and said to-have been found by Sumpter Lewis, is not the knife Brooks had at her house on that evening.</p> <p>The motion for a new trial raised the questions treated in the-opinion.</p>

Tried below before the Hon. Wells Thompson, Special Judge. The indictment charged the appellant with the murder of Robert Wall, in.Colorado county, Texas, on the third day of February, 1883. His trial resulted in his conviction of murder in the second degree, and the verdict awarded him a term of fifty years in the penitentiary. Julia Wall, the widow of the deceased, was the first witness for the State.

Tried below before the Hon. G. W. Glasscock, County Judge. The information in this case was joint against the appellant and Henry and Harn Behrens, charging them with pulling down the fence of William Ilse, in Williamson county, Texas, on the sixth day of May, 1882. The appellant being alone upon trial was convicted, and fined ten dollars and costs. The record brings up no statement of facts.

Tried below before the Hon. L. W. Moore. The indictment charged the appellant with the theft of a horse, the property of Eli Justice, in Hays county, on the eleventh day of March, 1883. He was convicted, and awarded a term of five years in the penitentiary as punishment. Ed. Massey was the first witness for the State. He testified as follows: “On the morning of March 11, 1883, the defendant came to my house, and told me that he was going to steal Eli Justice’s horse.

Tried below before the Hon. D. P. Marr. The indictment charged the appellant with the theft of three horses, the property of John McKenzie, in Live Oak county, Texas, on the thirtieth day of September, 1881. The penalty assessed by a verdict of guilty was a term of five years in the penitentiary. John McKenzie was the first witness for the State.

Tried below before the Hon. G-. B. Pickett, County Judge. The information charged that the appellant, on December 26, 1881, with force of arms, “did wilfully and without lawful authority, arrest and detain one J. C. Cates, without the consent of said Cates, said arrest being then and there effected by the said Staples by the use of threats, and by an illegal arrest, and by putting said Cates in fear of some bodily injury; contrary,” etc. The jury found a verdict of guilty,…

Tried below before the Hon. T. J. Austin, County Judge. The opinion discloses the case. The penalty imposed by a verdict of guilty was a fine of fifty dollars, and confinement in the county jail for five hours.

Tried below before the Hon. J. H. Conatser, County Judge. Appellant was charged by information with knowingly cutting timber trees not his own, without the consent of the owner. He was convicted, and a fine of ten dollars was assessed as his punishment. On account of the defect in the commencement of the information, his counsel excepted to that instrument in the court below, and also moved in arrest of judgment.

Tried below before the Hon. T. M. Paschal. The opinion sets out the indictment. The verdict assessed a term of two years in the penitentiary as punishment. The indictment was obviously drawn under the form for theft prescribed by the “Common Sense Indictment Act” of 1881, which form has been held insufficient in many preceding cases.

Tried below before the Hon. T. M. Jones, County Judge. The appellant was charged by information with the theft of two sheep, of the value of six dollars, the property of A. J. Hughes. Upon his trial he was convicted, and as punishment a fine of five dollars and confinement in the county jail for five minutes were assessed against him. A. J. Hughes, the first witness for the State, testified that he had a sheep which he left in the “post” late in the fall or winter of 1882.

T. M. Jones, County Judge. The opinion discloses the nature of the case. A fine of twenty-five dollars was assessed by a verdict of conviction, J. W. Kee, for the State, testified that the people of the neighborhood assembled at the Salt creek school house, in Jack county, for religious services, on the third Sunday in May, 1882. They aggregated quite a large number.

Tried below before the Hon. A. S. Walker. The opinion sufficiently states the nature of the case. The penalty imposed was a term of two years in the penitentiary. The following is the agreed statement of facts: “1. The election, oaths and bonds of Wilson Gregg and William Von Rosenberg, justices of the peace, precinct number-three, Travis county, Texas, were offered in evidence and admitted to be in due form. “2.

Tried below before the Hon. J. C. Townes, The indictment charged the appellant with an assault with intent to rape Antonia Carrion, in Tom Green county, on or about the third day of November, 1882. A term of seven years in the penitentiary was the punishment assessed by a verdict of guilty. Antonia Carrion was the first witness for the State.

<p>Appeal from the County Court of Palo Pinto. Tried below before the Hon. J. H. Conatser, County Judge.</p> <p>The opinion discloses the nature of the case. A fine of ten dollars was the punishment assessed by a verdict of guilty.</p> <p>It was proved by the State that the defendant carried away the timber described in the information, from the land described in the same document; that he was warned not to do so, as M. E. Birdwell claimed the land and timber under a purchase from B. B. Adams in 1881; that the' defendant replied to such warning that he had purchased the timber from Frank Dalton and would carry it away, which he did.</p> <p>Frank Dalton testified, for the defense, that he claimed the land under a transfer from B. B. Adams, executed in 1881; that he cut the timber described in the information, and sold it to the defendant, and authorized him to carry it away.</p> <p>The motion for new trial raised the question involved in the opinion, and denounced the verdict as unsupported by law or evidence.</p>

Tried below before T. J. White. The appeal in this case was prosecuted from a judgment based on the forfeiture of the bond of John Perry, bailed under an indictment charging him with the theft of a horse. Seven hundred and fifty dollars was the amount of the bond and judgment. The opinion sufficiently discloses the case. That the judgment was contrary to and not supported by the evidence was the ground set up for new trial, which was refused.

Error from the District Court of Shackelford. Tried below before the Hon. T. B. Wheeler. The writ of error in this case was prosecuted from the forfeiture of the bond of J. J. Covington, who was bailed to the District Court of Shackelford county, under a charge of horse theft. Fifteen hundred dollars was the amount of the bond and judgment; from which judgment the appellant alone of the sureties prosecutes this writ of error. The opinion sufficiently discloses the case.

Tried below before the Hon. R M. Black, County Judge. The opinion discloses the nature of the case. The penalty imposed by a verdict of conviction was a fine of twenty dollars.

Error from the District Court of Tom Green. Tried below before the Hon. Allen Blacker. The writ of error in this case was prosecuted from the forfeiture of the bond of Henry Keppler, bailed to await the action of the grand jury of Tom Green county, on a charge of “ wilful burning.” Two. hundred dollars was the amount of the bond and judgment.

J. S. Sproull, County Judge. The indictment charged the appellant with the theft of seven goats, of the value of one dollar per head, the property of Frank Gaines, in Maverick county, Texas, on the twenty-fifth day of September, 1881. The punishment assessed against him by a verdict of guilty was a fine of twenty-five dollars and confinement in the county jail for one day.

Tried below before the Hon. W. H. Burkhart. The indictment charged the theft of two cows, the property of Charles Schrimp, in Waller county, Texas, on the eleventh day of May, 1882. The penalty imposed by a verdict of guilty was a term of two years in the penitentiary. The motion for a new trial was overruled- and this appeal prosecuted. The record brings up no statement of facts.

Tried below before the Hon. Gr. L. D. Adams, County Judge. The indictment charged the appellant with adultery with ovate Scott, the wife of S. S. Scott, in Mason county, Texas, on the seventeenth day of November, 1883, and on divers other days prior and subsequent to said seventeenth day of November, 1882. A fine of one hundred dollars was the punishment imposed by a verdict of guilty.

Tried below k- jfore the Hon. T. M. Paschal. The purpose of the indictment in this case was to charge the appellant with the murder of C. H. Lund, in Maverick county, Texas, on the fourth day of December, 1883. ■ His trial resulted in his conviction of murder in the second degree, with a term of five years in the penitentiary assessed against him as punishment. The facts in this case are summarized as presenting an interesting phase of conflicting testimony. J. Q-.

Tried below before the Hon. J. W. Pierson, County Judge. The opinion discloses the nature of the case. The penalty affixed by a verdict of guilty was a fine of twenty-five dollars. John Clubb was the first witness for the State. He testified, in substance, that he was the father of the defendant, seventy-nine years old, and very robust for his age. Defendant was twenty-four or twenty-six years old, and robust for his age.

Tried below before the Hon. T. A. Falvey. The opinion states the nature and result of the prosecution. The statement of the accused after he was duly warned, taken down in writing, was first read in evidence by the State. It reads as follows: “When I was coming up with the cows last Saturday one week ago (I don’t remember the exact day), at Smith’s ranch, on the Pelegos, in Presidio county, Texas, the Chinaman was coming up at the same time.

<p>Appeal from the County Court of Shackelford. Tried below before the Hon. J. L. Fisher, County Judge.</p> <p>The facts are sufficiently disclosed in the opinion of this court.</p>

Tried below before C- H. Jenkins, Special Judge. The indictment charged the appellant with the theft of money of the value of twenty-nine dollars and forty-four cents, the property of L. A. Bryan, in Brown county, Texas, on the fifth day of June, 1883. He was convicted and awarded a term of two years in the penitentiary as punishment.

<p>Jury Law—Plea.—A conviction will be set aside by this court unless it appears from the record that the jury trying the cause was sworn according to law, and that the defendant pleaded to the indictment, or that a plea of not guilty was entered for him.</p>

Tried below before the Hon. E. C. Stuart, County Judge. The information charged the' theft of sixteen bushels of com of the value of twelve dollars, the property of H. C. Martin, on the sixth day of December, 1882. The penalty imposed by the judgment of conviction was a fine of ten dollars and confinement in the county jail for one hour. The motion for new trial assailed the judgment as against the law and the evidence.

Error from the District Court of Bosque. Tried below before the Hon. B. W. Rimes. The writ of error in this case was prosecuted from the forfeiture of the bond of Frank Robertson, bailed under an indictment charging him with horse theft. The amount of the bond and judgment was six hundred and fifty dollars.

Tried below before the Hon. Jo. Abbott. The appeal in this case was prosecuted from the forfeiture of the bail bond of Walter Deshon, bailed under a capias charging him with theft of property under the value of twenty dollars. The amount of the bond and the judgment was three hundred dollars. Appellants were sureties on the bond.

Tried below before the Hon. W. M. Minyard, County Judge. The opinion states the nature of the case. A fine of fifteen dollars was awarded as punishment by the verdict of guilty. Peter G. Kucker was the first witness for the State. He testified that on or about the first day of March, 1882, he saw the defendant play at a game of cards in a room in the rear of the Crystal saloon, in Belton, Bell county, Texas.

Tried below before the Hon. D. C. Barmore, County Judge. The opinion states the nature of the case. The punishment ■assessed by a verdict of guilty was a fine of five hundred dollars. Gus Pitts was the first witness introduced by the State. He testified that he had known the defendant for about ten or fifteen months.

Tried below before the Hon. W. J. Ewing, County Judge. The information charged the appellant with an aggravated assault and battery upon one Granberry Byrd, a male infant. The venue of the offense was alleged to be in Johnson county, and it was charged to have been committed on the twenty-first day of August, 1882. A fine of twenty-five dollars was the punishment assessed by a verdict of guilty.

Tried below before the Hon. B. W. Rimes. The indictment charged the appellant with the theft of a boar hog of the value of twenty-five dollars, the property of George Brown. The theft was alleged to have been committed on the seventeenth day of January, 1883. The punishment assessed against the appellant, by a verdict of conviction, was a term of two years in the penitentiary.

Tried below before the Hon. W. M. Minyard, County Judge. The opinion discloses the entire case. The penalty imposed by a verdict of conviction was a fine of twenty-five dollars.

Tried below before the Hon. R. G. Childress, County Judge. The conviction was for the violation of the “ Local Option Law,” and the penalty imposed was a fine of twenty-five dollars.

Tried below before the Hon. W. M. Minyard, County Judge. The conviction was for the theft of five dollars in currency of the United States, from J. T. Reese. The penalty imposed by a verdict of guilty was confinement for a term of six months in the county jail.

Tried below before the Hon. W. E. Collard. The opinion sets out the charging part of the indictment. The conviction was for murder in the second degree, and a term of fifteen years in the penitentiary was the penalty assessed by the jury. The substance of the testimony for the r-osecution was that, on Christmas night, 1883, some cue went to a house of three rooms occupied by Amy Davis, Scott Brown and Phillis Brown, each of these parties occupying separate rooms.

Tried below before the Hon. W. J. King, County Judge. The indictment charged the appellant with pursuing the occupation of retailing spirituous liquors in quantities less than one quart without having first obtained a license therefor. He was convicted, and a fine of three hundred dollars was assessed against him.

Tried below before the Hon. L. D. Bradley. This appeal was prosecuted from the forfeiture of the bail bond of R. A. McWhorter, bailed under an indictment for theft. Five hundred dollars was the amount of the bond and judgment.

Habeas Corpus, on appeal from a judgment in chambers, rendered by the Hon. T. B. Wheeler, Judge of the Twelfth Judicial District. The applicant in this proceeding was held under an indictment charging him with the murder of E. Chifflet, in Holán county, Texas, on the twenty-fifth day of February, 1883. He was refused bail by the judge below, and prosecutes appeal to this court.

Tried below before the Hon. Gustave Cook. The indictment charged the appellant with the theft of one necklace of the value of sixty dollars, and of other personal property of the value of seven dollars and fifty cents, the property of Elvira S. Howard, in Galveston county, on the twenty-fifth day of September, 1882. Two years in the penitentiary was the term awarded the appellant as punishment by a verdict of guilty.

Tried below before the Hon. L. W. Moore. At the April term, 1882, of the District Court of Fort Bend county the grand jury presented an indictment against F. W. Bohannon, the present appellant, charging that, on or about December 7, 1881, in the said county of Fort Bend, he did “with malice aforethought kill J. L. Knox, by shooting him with a gun.” At a subsequent day of the same term the defendant filed an application for a change of venue, alleging that by reason of…

Tried below before the Hon. B. W. Rimes. The indictment charged the appellant with an assault with intent to murder Jack Hamilton. The offense was alleged to have been committed on January 17, 1883, and the venue was laid in Bell county. The trial resulted in the conviction of the defendant, and his punishment was assessed at a term of four years in the penitentiary. Jack Hamilton was the first witness for the prosecution.

Tried below before the Hon. J. C. Bussell. The opinion discloses the nature of the case. The punishment awarded the appellant by a verdict of guilty was a term of two years in the penitentiary. In addition to his testimony as set out in the opinion, the witness Babcock testified, on cross-examination, that he did not know who wrote the order. He could not say that the defendant wrote it, nor could he say that the defendant knew that it was a forgery.

Tried below before M. Kennon, Esq., Special Judge. The indictment charged the appellant with the murder of E. L. Strickland, in Colorado county, Texas, on the twenty-seventh day of November, 1883. He was convicted of murder in the first degree, and was awarded the death penalty. Lewis Brooks was the first witness introduced by the State. He testified that he knew the defendant as Jim Stanley, and identified him in court. He knew the deceased in his life time.

The record in this cause has not reached the hands of the Reporters. The opinion of this court, however, states all matters relevant to the ruling.

Tried below before the Hon. J. C. Russell. The indictment charged the forgery of an instrument reading as follows: “ Give Pablo his pistol and I will pay you for it. “Dario Gonzalez.” A verdict of guilty assessed a two years’ term in the penitentiary against the appellant as punishment.

Tried below before the Hon. B. W. Rimes. The indictment charged the appellant with the theft of thirty-four dollars from the person of W. W. Glover, in the county of Falls, on the eighth day of March, 1883. The penalty imposed by a verdict of guilty was a term of two years in the penitentiary. Jay Gammel, city marshal of Marlin, was the first witness for the State.

<p>Appeal from the Criminal District Court of Harris. Tried below before the Hon. Gustave Cook.</p> <p>The indictment in this case was a joint one against the appellant and one Joe Stewart, charging them with an assault with an intent to murder B. F. Perry. The venue was laid in Harris county, and the offense was alleged to have been committed on the twenty-fifth day of December, 1882. The appellant being alone upon trial, was found guilty by the jury, and a term of seven years in the penitentiary was assessed against him as punishment.</p> <p>The transcript brings up no statement of facts.</p>

Tried below before the Hon. Jo. Abbott. The charging part of the indictment reads as follows: * * * “J. W. Baker, late of said county, on or about the twenty-second day of December, 1882, and in said county and State, did then and there, with a wilful design to receive benefit to him, the said J. W. Baker, and to cause injury to one Tom Bell and to one J. J. Stoker, request and solicit the said Tom Bell and J. J. Stoker to sign as drawers a certain promissory note, in words…

Tried below before H. G. Robertson, Esq., Special Judge. The indictment in this case charged the appellant and A. J. Goodgame and Ben. McCall jointly with the murder of George Eldridge, in Henderson county, Texas, on the twentieth day of-April, 1881. The appellant moved for a severance, and that his co-defendant McCall be first put upon his trial.

Tried below before the Hon. W. E. Collard. The indictment charged the appellant with the theft of one head of neat cattle, the property of S. H. Abernathy, in Milam county, Texas, on the first day of September, 1880. He was convicted, and awarded a term of two years in the penitentiary. John Eplin was the first witness for the State. He testified that he knew the defendant, and for eighteen months had known the cow the defendant is alleged to have stolen.

Tried below before the Hon. B. G-. Childress, County Judge. As far as can be ascertained from the transcript in this case, the appellant was convicted for carrying a pistol into a public assembly, and was fined in the sum of fifty dollars. The transcript brings up neither indictment, information, statement of facts, nor assignment of errors.

Tried below before the Hon. J. R Hennard. The indictment charged the appellant with the theft of a horse, the property of Joe Lane, in Trinity county, Texas, on the tenth day of January, 1880. His trial resulted in his conviction, and, as punishment, he was awarded a term of five years in the penitentiary. Joe Lane was the first witness for the State. He testified that he lived on Mustang prairie, in Trinity county, Texas.

Tried below before the Hon. D. P. Marr. The indictment charged the appellant with the murder of Pedro Garcia, in McMullen county, Texas, on the thirteenth day of July, 1883. The conviction was for murder in the first degree* and the punishment awarded was a life term in the penitentiary. Hamp. Kuykendall was the first witness for the State.

Tried below before J. C. Easton, Esq., Special Judge. The opinion discloses the nature of the case. The penalty imposed by a verdict of conviction was a term of five years in the penitentiary. Ivy Ballard was the first witness introduced by the State. He testified, in substance, that he owned the animal alleged to have been stolen by the defendant. Witness was not acquainted with the defendant prior to his arrest.

Tried below before the Hon. R. R. Gaines. Joe Spears, a citizen of Lamar county, Texas, was assassinated at his home, on the Greenville road, about one and a half miles from the city of Paris, in said county, on the night of January 11, 1881. Isham Scott was indicted and tried for his murder, and has since suffered the extreme penalty of the law under a verdict of murder in the first degree with that penalty attached.

Tried below before the Hon. B. F. Williams. The indictment charged the appellant with the murder of John Rogers, in Young county, Texas, on the thirteenth day of February, 1883. His conviction was for murder in the second degree, and his punishment was assessed at a term of fifteen years in the penitentiary.

Tried below before the Hon. D. P. Marr. The indictment charged the appellant with the murder of J. H. Barnes, on the eighteenth day of September, 1878, in Frio county, Texas. His trial resulted in a conviction of murder in the second degree, and he was awarded a term of five years in the penitentiary as punishment. W. C. Daugherty was the first witness for the State.

Tried below before the Hon. L. W. Moore. The indictment charged the appellant with the theft of one head of neat cattle, the property of W. J. Hildebrand, in Fayette county, Texas, on the twenty-third day of April, 1882. A verdict of guilty assessed his punishment at a term of two years in the penitentiary. W. J. Hildebrand, of Fayette county, was the first witness for the State.

Error from the District Court of Throckmorton. Tried below before the Hon. B. E. Williams. The opinion states the nature and result of the case. Gran-ville Goodin, the principal in the bond, was bailed on a charge -of horse theft. The certificate of the trial judge shows that no testimony was offered by either the State or the plaintiffs in error. The motion for new trial raised the questions discussed in the opinion.

Tried below before the Hon. W. E. Collard. The nature of this case is disclosed in the opinion first delivered in it by this court. A term of five years in the penitentiary was the punishment awarded the appellant in the court below.

Tried below before the Hon. G. B. Pickett, County Judge. The opinion sets out the charging part of the information. The punishment assessed by a verdict of guilty was a fine of ten dollars. The opinion sufficiently discloses the substance of the testimony adduced on the trial.

Tried below before the Hon. E. G. Childress, County Judge. The conviction was for the violation of the “Local Option Law.” The penalty imposed was a. fine of twenty-five dollars.

Tried below before the Hon. W. H. Ford. The indictment in this case charged the appellant with the murder of Lewis Jackson, in Orange county, Texas, on the thirtieth day of March, 1881. A previous trial resulted in a conviction of murder in the second degree, which conviction was re-' versed by this court.

Tried below before the Hon. J. C. Robertson. The indictment was presented September 17,1881, and charged that Asa Dumas, the appellant, did, about June 10,1881, “marry and take to wife one Dora Guy, a female woman, the said Asa Dumas being then and there an adult male person, and then having a former living lawful wife to whom he had been previously married, to wit, Polly Dumas; contrary to-law and against the peace and dignity of the State of Texas.” The trial was had at…

Tried below before the Hon. T. M. Paschal. The indictment charged the appellant with the murder of Sandy Winn, on April 6, 1879. The conviction was for murder of the second degree, and the punishment awarded was a term of twelve years in the penitentiary. Ben. White was the first witness introduced by the State. He testified, in substance, that on the morning of April 7, 1879, he was informed of the discovery of traces of a “drag” in his neighborhood, in Medina county.

Tried below before the Hon. L.. W. Moore. At the spring term, 1881, of the District Court of Bastrop county the grand jury returned an indictment charging that the appellants, Dave Cartwright and John Hash, did, on the preceding twelfth day of February, kill and murder one B. F. Davis, by shooting him with pistols, etc. The case came to trial in May, 1883, when the appellants were found guilty of murder in the second degree, and a term of six years in the penitentiary was…

Tried below before H. C. Ferguson, Esq., Special Judge. The conviction was for theft of horses. The verdict fixed the punishment at a term of five years in the penitentiary, and the judgment accorded with the verdict. The sentence, however, allotted him but two years. There is no occasion for a statement of the evidence.

Appeals from the County Court of Wise. Tried below before the Hon. G. B. Pickett, County Judge. The convictions in these cases were founded upon the giving ■away of intoxicating liquors in violation of the provisions of the “Local Option Act.” The penalties imposed were fines of fifty dollars in one, and twenty-five dollars in the other of the cases.

Tried below before, the Hon. G. H. Noonan. The defendant was indicted at the March term, 1883, of the District Court of Bexar county, charged with the offense of swindling, in that on the thirtieth day of December, 1882, he gave a draft to Baker & Burroughs, on the San Antonio National bank, for one hundred and ninety-two dollars, and on that draft obtained two twenty-dollar currency bills of the value of twenty dollars each, and of the aggregate value of f orty dollars, and…

Tried below before the Hon. G-. N. Aldredge. The indictment charged the appellant with the murder of one-Anderson Thomas, in Dallas county, Texas, March 22, 1883. The conviction was for murder in the second degree, and the penalty imposed was a term of sixty-seven years. Jim Lowe was the first witness sworn for the State. He testified that he gave a dance at his house on the night of March 22, 1883.

Tried below before the Hon. T. M. Paschal. Upon an indictment charging the appellant with the murder of Charles Burns, by shooting him with a pistol, on December 31, 1882, the appellant was found guilty of murder in the second degree, and a term of fifteen years in the penitentiary was assessed as his punishment. The homicide occurred at Port Clark, a military post of the United States, located close to the town of Brackett, the county seat of Kinney county.

Tried below before the Hon. C. C. Potter. The opinion of the court states the nature and result of the case. George Witt testified, for the State, that in August, 1881, the defendant lived with his father in Denton county, and was engaged in the butchering business. He killed a two year old brown or black steer, in the summer of 1881, which had been known in the neighborhood as an estray. The witness had heard the defendant speak of this animal as an estray.

Tried below before the Hon. J. C. Eobertson. The indictment in this case was presented on the twenty-sixth day of May, 1882, and charged the appellant with the murder of Anna Lovelady, who from the evidence appears to have been his wife, in Wood county, Texas, on the thirtieth day of January, 1882, by striking her with an iron wedge, a hatchet and a knife, and by throwing her bodily into a fire, wherein she was fatally burned.

<p>1. Information—Pleading.—It is an imperative statutory provision that an indictment or information shall allege the time of the commission of the offense alleged, and that it must he a date anterior to the filing of the indictment or information.</p> <p>2. Same—Amendment.—Allegation in an indictment or information that the offense was committed at a time subsequent to the filing of the indictment or information is a defect which goes to the substance, and is not amendable. Nor can it be treated as a clerical mistake.</p>

Tried below before the Hon. H. M. Cate, County Judge. The opinion states the nature of the case. The penalty imposed by the verdict of guilty was a fine of twenty dollars.

Tried below before the Hon. J. C. Robertson. The opinion states the case. The amount of the bond adjudged was three hundred dollars.

Tried below before the Hon. P. J. McCord. The indictment charged the appellant with the theft of a horse, the property of W. H. Martin, in Henderson county, on the first day of September, 1882. The verdict of guilty assessed his punishment at confinement in the penitentiary for a term of .five years. W. H. Martin was the first witness introduced by the State. He testified that he had known the defendant for several years.

Tried below before the Hon. W. T. S. Keller, County Judge. This appeal is from a conviction for hog theft, wherein the verdict and judgment assessed appellant’s punishment at imprisonment for ten days in the county jail, and a fine of twenty-five dollars.

<p>Appeal from the County Court of Williamson. Tried below before the Hon. G-. W. Glasscock, County Judge.</p> <p>The opinion clearly discloses the case.</p> <p>No brief for the applicant has reached the Reporters.</p>

Tried below before, the Hon. T. L. Nugent. The opinion discloses the nature of the case and the result of the prosecution. Alfred Shelton was the first witness introduced by the State. He testified that he knew the defendant, and he identified him in court. The witness heard that G-. W. White had some cattle stolen from him in January, 1883.

Habeas Corpus on appeal from an order in chambers, issued by the Hon. J. M. Hurt, Judge of the Court of Appeals, upon the petition of the relator, who was restrained by virtue of a warrant issued by the Hon. W. L. Cabell, mayor of the city of Dallas, Texas, charging the offense of keeping a disorderly house.

Tried below before the Hon. J. C. Robertson. The indictment charged the appellant with the murder of R. A. Short, in Upshur county, Texas, on the tenth day of Hay, 1883, by shooting him with a pistol. The conviction was for murder in the first degree, with the death penalty assessed.

<p>A-p-peat, from the District Court of Gonzales. Tried below before the Hon. E. Lewis.</p> <p>■ The indictment in this case, filed June 28, 1882, charged the defendant with the theft of eighteen head of sheep, the property of Bart. Burkett. The offense was alleged to have been committed in Gonzales county, on the fifteenth day of ¡November, 1881. The trial was had at the July term, 1883, of the District Court, and resulted in the conviction of the appellant. His penalty was affixed at confinement in the penitentiary for a term of two years.</p> <p>Bart. Burkett was the first witness for the State. He testified that he lived in Gonzales county, Texas. He knew and identified Hill Deering as the prisoner at the bar. During the spring of 1881, the witness from time to time lost sheep from his pens, aggregating perhaps a hundred head. About the time mentioned in the indictment, the witness found eighteen head of his sheep in a drove in DeWitt county, about one mile from the Gonzales county line. They were then about three miles distant from the witness’s house, and about seven miles distant from the defendant’s house. The drove was then under the charge of John G. Hester and the defendant’s brother, Tobe Deering. The defendant was not present. The sheep were being driven along the public road in the direction of Hoheim. Hester told the witness that he had purchased the sheep from the defendant. The witness stopped the sheep, which were driven into his pen, and Hester sent for the defendant. When the defendant arrived, Hester claimed, in the presence of witness, defendant and others, that he had bought the sheep from the defendant, and the defendant said that he had sold them to Hester. The sheep were worth three dollars per head. ¡No one had the witness’s consent to take the sheep.</p> <p>The witness’s brand was X on the side of the face, one prong of the cross extending from the left corner of the eye to the corner of the mouth, and the other extending across the bridge of the nose. This brand was on these sheep, with the addition of a small mark across one bar of the cross. This mark had been added and “haired over.” The sheep were still in the witness’s mark. When the defendant first came up to where the witness, Hester and Tobe Deering had the sheep, he said they were his sheep. Afterwards, and during the same conversation, he said they were honest sheep which he had sold for his little brothers. He said that they had raised some and bought some of them. The witness took his sheep from the bunch, one by one, and examined them carefully. ■ There were present at this time the witness, J. L. Crawford, Eufus Hale, Willis Arrington, John Hester and the defendant. Subsequently and in the presence of the parties named, the defendant and the witness entered into the following agreement: The witness was to allow Hester to go on with the sheep, and the defendant was to bring a suit against the witness for the sheep, and Willis Arrington was to become surety for the forthcoming of the sheep. Hester was to hold the sheep as the property of the witness until their status was decided by law. The defendant never brought the suit agreed upon.</p> <p>Some time after the agreement was entered into, the witness found his sheep in the flock of Lee Floyd, on the west side of the Guadalupe river. He and Floyd tested ownership by arbitration, and the sheep were awarded to the witness, whereupon Floyd paid the witness for them. This arbitration was had in Gonzales county, in March, 1882. The witness had never seen his brand on other sheep than he owned, except those he sold, which were put in the mark of the purchasers. When the witness found these sheep in the flock in the possession of Tobe Deering and John G. Hester, the letter V had been (since they were taken) branded on the side of the face opposite the witness’s brand.</p> <p>Bufe Hale was the next witness for the State. He testified that some time in 1881, at the request of Burkett, he went to Burkett’s house to look at eighteen head of sheep which were said to have been stolen from Burkett. When the witness saw them, the sheep were near Burkett’s house, in Burkett’s possession, and had Burkett’s mark and brand on them. A slight addition had been made to Burkett’s brand. These eighteen head of sheep were in a brand different from that on the other sheep of the flock.- When the defendant came up to the party, he said that he had sold those sheep to John G. Hester. He claimed that the sheep had been raised by his family. Respecting the conversation between Burkett and the defendant, the witness testified substantially as Burkett did. He corroborated Burkett as to the arrangement for the proposed litigation over the ownership of the animals.</p> <p>J. L. Crawford testified, for the State, that he was present when Burkett separated eighteen head of sheep from a flock of sixty or seventy, and saw Burkett examine them one by one. Seventeen of them had Burkett’s brand, with a slight addition, on them. They were also branded with a V on the opposite jaw. This V and the addition to Burkett’s brand were fresher than the original brand. Two of the sheep Burkett recognized from the outside of the pen, and independent of the marks and brands,—one by a peculiarly broken horn, and the other by a distinct and different brand. The defendant said that these eighteen sheep were, or had been, his and his little brother’s, but that he had sold them to John Hester. Burkett returned the sheep to Hester upon the agreement of the defendant to sue for them; and Arrington became surety to Burkett for the sheep. The witness afterward saw some of the sheep in Floyd’s flock, in Gonzales county. He had never seen any of them in the possession of the defendant.</p> <p>J. L. Floyd testified, for the State, that Bart. Burkett came to his house early in the spring of 1882 and examined his, witness’s, flock of sheep, from which he picked out eighteen head which he claimed as his own. The question of ownership was arbitrated by the witness and Burkett, and, the award being in Burkett’s favor, the witness paid him for them. C. J. O’Neil, the witness’s partner, brought the sheep to the witness’s place, and had a bill of sale for them from John G. Hester. This was the first time the witness ever saw them. The brands and marks showed then that they were original marks and brands changed. The brand showed that it had recently been changed from the brand claimed by Burkett. The letter V was also branded on the cheek opposite the changed brands, and was fresher than the former. One of the eighteen head identified by Burkett had a broken horn, and another the letter B branded on one jaw</p> <p>J. A. Deering, for the defense, testified that the defendant was his son, and that if the defendant ever owned any sheep, he, the witness, did not know it. The witness’s family had owned a small flock of sheep since 1875, which was started from a pet lamb presented to some one of them by Captain Gus. Jones. Two or three other sheep were afterward obtained from Sam. Moore, and as many from Dave Williamson. In 1880 the witness’s family exchanged a buck and some mutton with George Johnson for six ewes, and in the fall of the same year got five or six more from George Johnson. The witness’s children sold a flock of about sixty head of sheep to John Hester, and he, Hester, and Tobe Deering drove them off. The defendant had no interest in those sheep. There were several marks among the sheep, but they were all in the same brand, which was the letter H and the figure 4 connected. That brand was of record. The witness had nothing to do with the sheep, and knew but.little about them. ....</p> <p>On his cross-examination the witness described the marks and brands on the sheep belonging to his family, but none of them corresponded with the Burkett mark and brand. These sheep, when driven from the house, were started in Gonzales county, about eight miles from where they were sttipped by Burkett. Except five or six of the flock, which belonged to one Spaulding and were unbranded, they were branded in the H4 connected brand.</p> <p>The defendant’s brother-in-law, J. L. Johnson, testified that in 1879, 1880 and 1881, he lived with the defendant’s father. The Deering family owned a small flock of sheep, in which the defendant neither had nor claimed an interest. In 1878 the witness got four or five motherless lambs from Sam. Moore, and in 1879 five or six more from Will Jones, which he gave to old Mrs. Deering. In 1881 the Deering family traded a buck to George Johnson for five or six head. “His” (Johnson’s?) brand was the letter H with the cross-bar elongated, and when the Deerings got these last sheep they put all the rest in that brand. The mark was a smooth crop off each ear. The witness here corrected himself, and said that it was in 18 82 they got the sheep-from Johnson. The Deerings impressed the letter V on the jaw of the sheep. Old man Deering made the trade with Hester, in the presence of all of his family except the defendant;</p> <p>S. S. Gary testified, for the defense, that five years ago the Deerings owned a small flock of sheep. The witness understood them to belong to Mrs. Deering and the little children, and that the defendant had no interest in them.</p> <p>Leon Kendall testified, for the defense, that he had seen a few sheep running around the Deering place, which he understood to belong to the old lady and the boys.</p> <p>A. H. Jones testified that the young Deering children claimed some sheep, but he had never known the defendant to claim any. They got a few lambs from the witness’s father in 1874, and traded a buck to George Johnson for five or six ewes.</p> <p>The motion for new trial, which included the questions involved in the opinion, was overruled.</p>

Tried below before the Hon. E. Lewis. The indictment, filed October 9, 1879, charged the appellant with the theft of an estray yearling, in Gonzales county, on the first day of May, 1879. A term of two years in the penitentiary was the penalty assessed by the verdict of guilty. The opinion summarizes the evidence which is the basis of the first ruling of the court.

Tried below before the Hon. T. L. ÍTugent. W. B. Mathis, an employe of the appellant’s father, disappeared from the residence of the latter, in Hood county, Texas, on the night of April 28, 1882, since which time he has never been seen alive by any of the parties who testified upon this trial.

Tried below before the Hon. D. P. Marr. The charging part of the indictment reads as follows: * * * “that William Donohoe, on the sixth day of March, A. D. 1882, in the county of San Patricio and State of Texas, did then and there commit deliberate and wilful perjury, in this, as follows, to wit: that while the grand jury of the county aforesaid were in session and were making inquiry of offenses against the penal laws, it became and was then and there a material question…

<p>Appeal from the District Court of Gonzales. Tried below before the Hon. E. Lewis.</p> <p>The indictment charged the appellant with the murder of Samuel McGlocklin, in Gonzales county, Texas, on the fourth day of March, 1883. The penalty imposed by a verdict of murder in the first degree was a life term in the penitentiary.</p> <p>James Coker was the first witness for the State. He testified that he knew the defendant, and knew the deceased in his life time. The deceased and the defendant were brothers-in-law. The deceased died on the fourth day of March, 1883, from the effects of a gunshot wound. The witness was at the funeral of the deceased, but at no time saw the corpse. The deceased, defendant and the witness all lived in Gonzales county, and their houses stood, with respect to each other, about like the three extremes of a triangle. The house of the defendant, or rather that of his father, with whom he lived, was situated about three miles south of where the deceased lived. The deceased lived about a quarter of a mile east of Leesville, and about thirty or forty yards from the Gonzales and Leesville road. It stood in a field and fronted east. It contained but one main room, and a rear shed room. The homicide was committed one Sunday night, at the house of the deceased. The witness was there on the next Tuesday, and found two or three pools of blood in the house; also the print of a ball in the chimney breast log. The witness found the forty-five calibre ball here exhibited, under the bed, near where the corpse was found, three or four days after the killing occurred. The wife of the deceased was in Leesville at the time of the homicide.</p> <p>Allen Tolley, J. J. Carpenter, Byrd Keith and W. H. Riley searched the neighborhood for evidences of the perpetrator of the crime, commencing on Monday morning, about twelve hours after the homicide was committed. The witness met the party named near the house of the deceased. They had struck and were following the trail of a horse which had traveled very rapidly. .The party did not leave this trail (except for Monday night, taking it up again on Tuesday morning) until they had tracked it, step by step, at eleven o’clock on Tuesday morning, to the defendant’s place of residence, and to within twenty steps, of the lot where the tracks were obliterated by the tramping of other stock. This track was very easy to follow. It was a running track in open ground, and a slow one in brush or other-obstruction. The right fore foot of the animal scooped in and cut the dirt bias at every jump. This track did not lead direct to the house of the defendant, but wound around in every direction and crossed itself before reaching home. A piece of saddle leather was found on the trail, but no leather was found to have been lost from the saddle ridden by the defendant on Sunday, Monday and Tuesday. The distance between the-houses of the deceased and the defendant was about three or three and a half miles, but this track, in going from the one house to the other, traversed in its meanderings fully ten miles, and went through a perfect wilderness in places. Wherever the country was open the track was running—wherever it was obstructed it was slow. It crossed several roads, and traveled in one or two for some distance before • leaving them again. About a half mile before reaching defendant’s house, the track struck the road, and was thenceforth a running track. The witness knew the defendant’s mare very well, and knew that she made just such a track as this one. That mare was ridden by the defendant at the funeral, and was badly jaded. The hair had been knocked or scraped off her right shoulder and breast. The trail led through a thickly settled neighborhood. It led from the deceased’s house to Dick Calloway’s, thence to Byrd Keith’s, thence to Copeland’s, thence up the lane between Henry Carraway’s and the Humble place, to Stringer’s. Thence to Brelsford’s, thence to Clark’s, thence to Riley’s and thence to Self’s; thence by several other places to the creek, and thence south of the Ivey place to old man Davis’s place. Except the Gonzales and Leesville roads, the roads traveled by the trail were well traveled neighborhood roads. The witness identified the plot exhibited indicating the route traveled.</p> <p>The witness, proceeding with his testimony, stated that the defendant came to his house on Sunday evening, about an hour and a half before sunset, and inquired the way to James Smith’s place. At this time he was riding a gray mare, and his hands and face were not scratched. About dusk he came back by the witness’s house, in a lope, and, instead of taking the road leading to his home, which was the left hand, he took the right hand road, which forked about three or four hundred yards beyond the witness’s house. The witness did not see either the gray mare or the defendant again until the next Tuesday, when he noticed the hair knocked off the mare’s shoulder and breast, and the face and hands of the defendant scratched. The defendant also limped on his right leg at that time. In following the trail, it was found that the animal ridden had run over many saplings and bushes. On each of these bushes and saplings the pursuing party found gray hair which corresponded with the hair of the gray mare. In one place, where the animal passed between two saplings, gray hair was found on each, and one of them had been bruised, evidently with a horseman’s stirrup. At another place a patch of hair was found on a blackjack tree, at a height which corresponded with the bruised place on the defendant’s mare’s shoulder.</p> <p>The night of Sunday, March 4, 1883, was a dark, cloudy night, with rain threatening. Up to last Christmas, the defendant had been out of the country for four or five years, but was thoroughly well acquainted with the country. He was riding the same gray mare both times he passed the witness’s house on Sunday evening. When he passed at dusk, the witness was not nearer to him than twenty-five steps, but readily recognized him and the mare. On Tuesday the witness made an affidavit charging the defendant and George Ivey with the murder of the deceased, and on Friday made another charging the defendant, George Ivey and Mrs. McGlocklin. The defendant at the time of the murder was under indictment for cattle theft, but the witness did not know whether or not the deceased was a witness against him. The witness examined the gray mare on Tuesday, and found the wound in her breast such as could have been made by the snag on a tree on which gray hair was found, and over which the trail passed. The witness did not go into Davis’s house, nor examine for a pistol, a gun, boots or clothing.</p> <p>Allen TuIIey and W. H. Riley, testifying for the State, gave in detail the same evidence as to following the trail, finding gray hairs, etc., as that given by the witness Coker, with the addition that, when they started on the trail, at the house of the deceased, about ten o’clock on Monday morning, they found the track of a fine boot, about a’number five, leading to a crack in the northwest corner of the deceased’s house, from where a horse had been tied at the fence, one hundred yards south of the house. From this crack they followed the trail of the boot track back to where the horse had been tied. Following the circuitous track of the horse from the fence to the defendant’s house, they found where the rider had half dismounted, leaving the impression of one boot in the ground. This track corresponded with that found on the trail from the fence to the deceased’s house. This single track was where the horse struck against a tree.</p> <p>Each of these witnesses saw the defendant Monday morning —the morning following the killing. His face and hands were then scratched, the scratches being apparently six or eight hours old. The scratches were red and inflamed. When first seen after the murder, the defendant’s gray mare was very much jaded and run down. The witnesses did not go into old man Davis’s house, nor did they look there for pistol, gun, boots or clothing. Both the defendant and his father came to the house of the deceased on the Monday morning after the killing, and the defendant remained there on Tuesday until arrested. He knew that the party were hunting on the tra il, and kn ew it from the time they started on Monday morning. He assisted in looking about the trail around the house, but did not go with the party from the house, nor was he asked to go. The witness Tolley was the deputy sheriff in charge. Ho one went on the trail with him but those he summoned. This witness also testified that he heard the shot, between half past seven and eight o’clock, on Sunday night, and heard screaming at the deceased’s house. He went over next morning about an hour by sun. He saw the mare on the Tuesday following, but noticed nothing particular about her. Hothing about the tracks were peculiar, except they were running tracks.</p> <p>Johnny Coker testified, for the State, that he was at his father’s house on Sunday evening, when the defendant passed the house before sundown, inquiring the way to James Smith’s. He talked with the defendant, and knew that his face and hands were not scratched then. He was then riding a gray mare. He repassed the house on his return, about dark, and took the road leading to the deceased’s, passing the road leading to his own hofise. He was then riding in a gallop. The witness saw the defendant next morning and his face was then scratched; one scratch over his forehead, one on his nose, and one on his ear. Witness saw the scratches on the mare on Wednesday; one was •on her shoulder and one on her breast.</p> <p>Alfred Smith, who lived about midway between the houses of the deceased and the defendant, testified that on Sunday evening, about three o’clock, he saw a man and woman, whom he took to be the defendant and his sister, Mrs. McG-locklin. They passed the house of the witness horseback, one of them riding a gray animal.</p> <p>Frank Smith testified, for the State, that on Sunday evening the defendant, riding a gray mare, came to his house about an hour and a half by sun and remained until after supper. He left in a great hurry, saying that he must get home before it rained. This was about candle lighting timó. The witness lived within a half mile of the witness Coker. The defendant then had no scratches on his hands or face. Witness saw him next morning, and noticed fresh red scratches on his face and ear.</p> <p>J. C. Nalte and James Webb testified, for the State, that they saw the defendant on Sunday, the day of the killing. He was riding a gray mare, and wore a number five or six fine Sunday boots. Neither his face nor hands were then scratched. There were scratches on both when the witnesses saw him on Tuesday, and the mare he rode on Sunday had marks or scratches on her fore parts.</p> <p>Louis Teter and Jack Roland testified, for the State, that they saw the defendant on Sunday evening.' He was then riding a gray mare, wore a fine pair of number five or six boots, and had no scratches on his face or hands. They saw him again on Monday morning. He then wore a different pair of boots, and his face and ear were scratched.</p> <p>Robert Harold testified, for the State, that he lived within three quarters of a mile from where the deceased was killed, and got to the house about eleven o’clock that night. The body was lying on a quilt, near the door between the main room and the shed room. Most of the blood visible was on the floor near the chimney and rather behind the body. Witness remained at the house all night. Next morning he found where a horse had been tied to the fence, about one hundred and fifty yards south from the house. The fence appeared to have been pulled down, and the witness found the track of a small boot going from this part of the fence to the house. The horse’s tracks, from where they led off from the fence, were large and easily followed, and showed plainly that the animal went off in a run. The ball that killed the deceased entered the rear of the head and nearly in the center, and came out near the roots of the hair in front. The deceased was dead when the witness reached the house.</p> <p>The testimony of Thomas Harold, who, it is to be inferred, went with the last witness to the deceased’s house, on the night of the killing, was essentially the same. The boot tracks were apparently made by a fine number six small heeled boot. The witness saw the defendant next day. His face and hands were then scratched, and he was wearing a coarse, heavy boot, about a number six in size.</p> <p>J. W. Guthrie testified, for the State, that he lived about eight hundred yards from the place of the killing. Between seven and eight o’clock on Sunday night he heard a woman scream at the house of the deceased, and repaired thither immediately, and found the deceased lying dead on a quilt, near the middle door. There was no blood of consequence on the quilt, but some two or three pools were about on the floor, some distance from the body. Mrs. McGlocklin and the two small children were the only parties at the house. The feet of deceased were lying towards and near the table, on which sat a small tubular lantern. One of the tubes of this lantern showed where it had been cut more than half in two by a ball from a gun or pistol. The deceased had been shot entirely through the head from behind. This witness described the tracks of both man and horse about the premises exactly as they were described by the other witnesses. Through the cracks in the house already mentioned one could see through the middle door to where the deceased was sitting when he was shot. The witness had a man to take a seat by the table, and sighted through the crack from where the number six boot track showed the assassin to have stood, and saw that the man shooting had a “dead rest,” covering the deceased at not more than twelve or fourteen feet. Witness saw the defendant next morning. He rode a gray mare up to the house of the deceased. The animal was badly fagged, and showed that she had very recently had a terrible heat. A mark on the shoulder indicated that she had run against an obstruction—such as a limb. Some one remarked that they pulled a snag out of the wound. The face of the defendant showed scratches eight or ten hours old. The right hind foot of the gray, mare turned out a little. The tracks from the fence, which were followed some distance by the witness early on Monday morning, were made by the gray mare.</p> <p>George Ivey testified, for the State, that he lived with Henry Carraway, three miles from the deceased’s house. Both the defendant and the deceased were brothers-in-law to the witness. Defendant and deceased appeared friendly when the witness last saw them together. Some ten days prior to the killing the witness heard the defendant say that his sister’s way of living would have to change. He spoke of Mrs. McGlocklin, who was his sister. He did not say by whom or how the change would be wrought; nor did he say anything about how the deceased and his wife got along together. Mr. and Mrs. McGlocklin did not get along well together, but the witness knew nothing of any unfriendly feeling between the defendant and the deceased. The witness had frequently heard Mrs. McGlocklin say that the deceased would some time urinate in the wrong man’s pocket. The defendant told the witness that he had two pairs of boots, and the witness knew that the defendant owtied a forty-five calibre white handled six shooter. The deceased and the witness were always friendly, and had never had a harsh word. Witness wore usually a number six shoe, but on the Sunday of the killing had on a pair of number five boots. He went to Frank Morey’s early on that day, and did not get back until near night.</p> <p>On cross-examination, the witness admitted that in the fall of 1882 he had a conversation with Bob. Harold, in which he said to Bob. Harold that he could get ahead of the deceased. He denied, however, that he said to Bob. Harold that he did get ahead of the deceased,, and that Harold refused, without proof, to believe it, and asked how the witness had got ahead of deceased, and that witness replied that he would suffer his throat cut before he would tell how. He denied that at Phil. Bush’s, on Christmas, 1882, he had hard words with the deeased. Upon these denials the witness was contradicted by Bob. Harold, when examined by the defendant.</p> <p>This witness was asked if he did not, about three weeks before the killing, tell Jacob Brewer, at Brewer’s house, that the deceased intended to stick a knife into him, the witness; that he, witness, had eavesdropped the deceased’s house while the deceased was talking to his wife, and heard the deceased tell his wife that he intended to be friendly with the witness, and stick a knife in him. The witness denied that he confessed to eavesdropping, but admitted that he said to Brewer that he was riding by the deceased’s house one night, and stopped to hear the conversation of the deceased and his wife, and heard the deceased make the statement referred to. He admitted that about three weeks before the killing he told Phil. Bush that the deceased had threatened his, witness’s, life.</p> <p>John and Mrs. John Phipps testified, for the - State, that Mr. and Mrs. McGlocklin did not live happily together. They lived at the house of the witnesses a short time, about eighteen months before this trial. They had often heard Mrs. McGlocklin make threats against the life of the deceased. She said that she had often slept with a knife under her pillow, intending to kill the deceased. The witnesses had never heard the defendant threaten the deceased.</p> <p>James Li ng and Sam Tolley testified, for the State, that they were at c rch in Leesville at the time of the killing, and reached the deceased’s house about ten o’clock, going thence, at the request of Mrs. McGlocklin, to the house of old man Davis, to take the news of the murder and ask the immediate presence of Mr. Davis and the defendant. They reached Davis’s house about midnight, called, and were responded to by Mr. Davis, told the news, and asked for the defendant. Mr. Davis said that he did not know whether or not Phil., the defendant, was at home. Some one, Mrs. Davis, the witness thought, called outr “Yes, Phil, is here.” Mr. Davis said that the horses had all been .turned out, and could not be got up until morning. The witnesses returned to the deceased’s house without any one from Davis’s.</p> <p>Mrs. S. J. Aldridge testified, for the State, that shortly before the killing she heard Mrs. McGlocklin say that she would have her husband put out of the way, or would put him out of the way, as soon as she got out of bed. The defendant was not then present, nor did the witness ever hear him threaten the deceased.</p> <p>John Davis, the father of the defendant, testified in his behalf that he, the witness, went to bed about dark the night of the killing, as was his usual custom. lie did not know at what hour the defendant retired. The defendant had a white handled pistol—the same seen by Bob Tolley on Tuesday—but it was not in a shooting condition. It hung on the head of the bed in the defendant’s room, and was the only firearm on the place. It was so rusty it would not revolve. The witness had got up and was sitting smoking when the State’s witnesses Long and Tolley reached the house. This was about twelve o’clock, and the witness had been up since about ten. The witness and the defendant did not go back with them on being told of the murder of the deceased, because the horses belonging to the place had been turned out.</p> <p>Mrs. McGlocklin, the daughter of the witness and wife of the deceased, came to the witness’s house on Saturday, the day before the murder, and stayed over night. On Sunday, after dinner, she started home, the defendant going with her, riding a gray horse. Witness did not see the defendant again until next morning. The defendant got the horses up at daylight on Monday, and he and the witness went to McGlocklin’s house immediately after breakfast. There was then nothing unusual or unnatural about the gray mare. There were no hurts about her except sores made by the harness. The witness hauled cotton all of the summer to Gonzales with this mare, and her shoulders were hurt by the rubbing of the collar. If there was any hard feeling between the defendant and the deceased at the time of the death of thé latter, the witness did not know it. The defendant was at the house of the deceased on Monday, and knew of the trailing party—knew their movements until his arrest, and nothing occurred to prevent his escaping if he had so desired.</p> <p>Mrs. John Davis, the mother of the defendant, testified that the defendant and Mrs. McGlocklin left her house about three o’clock on the Sunday of the killing, to go to McGlocklin’s house. John Davis, the witness’s husband, lay dc<fen about an hour after dark on that Sunday night, and had been in bed about an hour and a half when the witness heard the defendant come in and go to bed in the shed room. Pie was at home when Long and Tolley reached the house that night. He was told what they wanted, and said that his horse was out, and he could not get it. He did not get up or go out while Long and Tolley were at the house. John Davis got up that night and smoked his pipe. He said that the clock struck ten while he was up. The defendant had been at home in bed some time when John Davis got up. The witness did not know that the defendant had or did not have his pistol on Sunday, but on Monday morning the pistol was hanging on his bed, where the witness hung it three nr four days before. It was the same seen by Tolley, and was the only weapon on the place.</p> <p>Two witnesses testified that the witness Ivey arrived at Carraway’s, where he lived, between sunset and dark on the fatal Sunday evening, and retired about nine or ten o’clock. One of these witnesses, who slept in the same room with Ivey, testified that the witness Ivey did not leave that room during the night after he went to bed.</p> <p>The motion for new trial presented the questions involved in the rulings of this court.</p>

Tried below before the Hon. D. P. Marr. The indictment in this case, filed September 8, 1881, charged the appellant with the theft of an estray mare, the property of some person to the grand jury unknown, in San Patricio county, on the tenth day of May, 1881. The trial resulted in conviction, and the verdict awarded a penalty of five years in the penitentiary. Robert Weir testified, for the State, that he was the inspector of hides and animals of San Patricio county, in 1881.

Tried below before the Hon. A. S. Walker. The indictment charged the burglary of the business house of S. Simon, in the city of Austin, Texas, on the second day of February, 1883. The verdict of guilty assessed the punishment at confinement in the penitentiary for the term of five years. The record brings up no statement of facts. The motion for new trial assailed the charge of the court, and denounced the verdict as unsupported by the evidence.

Tried below before the Hon. L. D. Bradley. The indictment charged the appellant and John Bassett with the theft of a cow, the property of H. Hailey, in Navarro county, on the twenty-fifth day of October, 1882. Upon his separate-trial the appellant was convicted, and was awarded a term of two years in the penitentiary.

Tried below before C. H. Jenkins, Esq., Special Judge. The indictment charged the appellant and James Hill with the theft of one head of cattle, the property of A. Crumb, of Brown county, Texas, on the first day of March, 1878. The appellant, who was alone upon trial, was convicted, and his punishment affixed at confinement in the penitentiary for a term of two years.