Volume 15 — Texas Court of Appeals Reports

Tried below before the Hon. G. J. Clark. The conviction in this case was upon an indictment against the appellant for the murder of Sam. Boyd, the charging part of which reads as follows: “ That George Moore, late of the county of Hunt, and State of Texas, did, with force and arms, in the county of Hunt and State of Texas, on the third day of January, A. D. 1883, with his malice aforethought, make an assault in and upon the body of Sam.

Tried below before the Hon. E. C. Heath, County Judge. A fine of twenty-five dollars was assessed against the appellant for unlawfully carrying á pistol on his person. The opinion sufficiently discloses the case.

Tried below before the Hon. J. S. Sherrell, County Judge. The indictment against the appellant was for “pursuing the occupation of selling spirituous, vinous and intoxicating liquors, in quantities less than one quart, in the town of Commerce, Hunt county, Texas, without having obtained license therefor, and without having paid the State and county tax,” etc.- The punishment awarded by a verdict of guilty was a fine of five hundred dollars. ■ The sale of whisky by the…

Tried below before the Hon. W. E. Collard. The indictment charged the appellant and Early Evans, sr., with the theft of an ox, the property of Frank Wassaberger. Verdicts of guilty against both, with a term of two years in the penitentiary, was returned by the jury. Early Evans, sr., was awarded a new trial; which being refused the appellant, he brought this case to this court. Frank Wassaberger was the first witness for the State.

Tried below before the Hon. D. H. Lane, County Judge. The information in this case reads as follows: “In the name and by the authority of the State of Texas: And now comes J. A. Templeton, county attorney in and for the county of Delta, and State of Texas, duly elected and qualified, •now presents here in the County Court of said county, this information, and' files with it the affidavit of one W. T. McKinney, on which it is based, and shows to the c.ourt that heretofore, on…

Tried below before the Hon. J. IL Milam, County Judge. The information was filed September 29, 1882, and charged the appellant with the theft of a hog, of the value of five dollars, the property of Alf. Hall. The venue was laid in Hopkins county, and the offense was alleged to have been committed on the thirteenth day of September, 1882.

Error from the County Court of Rains. Tried below before the Hon. E. P. Kearby, County Judge. The opinion of this court sufficiently states the case.

Tried below before the Hon. G. J. Clark. On the third.of January, 1883, in the village-of Commerce, Hunt county, an, affray occurred in which one Sam. Boyd was fatally shot and instantly killed. Within a few days the grand jury of the county presented three separate indictments, respectively charging George Moore, John Bindley, and Phelps, the present appellant, with the murder of Boyd.

Tried below before the Hon. R. C. Beale, County Judge. The indictment, transferred from the District Court,, charged the appellant with an aggravated assault and battery upon the person of L. J. Trotman, a female, in Navarro county, Texas, •on the eleventh day of May, 1883. A fine of four hundred dollars was the penalty inflicted by a verdict of guilty.

Tried below before the Hon. T. M. Paschal. The indictment charged the theft of a horse, the property of R. C. McKinney, in -Uvalde county, Texas, on July 1, 1882.

Tried below before the Hon. D. P. Harr. One hundred and twenty-five dollars in money was the property charged to have been stolen. The indictment alleged the ownership in John Davis and D. C. Smith, and the possession in J. B. Portis. » The trial of the appellant resulted in his conviction, and he was awarded a term of two years in the penitentiary.

Tried below before the Hon. J. C. Robertson. The indictment in this case, filed on the twentt^-second day of May, 1883, charged the appellant with the murder of William Gilbraitb, in Wood county, Texas, on the twelfth day of May, 1883. The result of his trial was his conviction of murder in the first degree, with the death penalty attached. Polly Gilbraith. the widow of the deceased, was the first witness for the State.

. Tried below before the Hon. B. F. Williams. The opinion sets out the charging part of the indictment, which attempted to charge the appellant with an assault with intent to commit a rape upon Ellen Bauckmann. A term of three years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hon. M. H. Brooks, County Judge. The appeal in this case is from the judgment final on the forfeiture of the bond of W. G. Jones, bailed on a charge of slander. The amount of the bond and judgment was six hundred dollars.

Tried below before the Hon. H. C. Pleasants. The indictment charged the appellant with the murder of Henry Curry, in Refugio county, Texas, on the twentieth day of July, 1883. The conviction was for murder in the second degree, and the punishment was affixed at a term of five years in the penitentiary. The opinion embodies a very clear and full synopsis of the evidence.

Tried below bed-ore the Hon. J. K. Milam, County Judge. The nature of the prosecution, as well as the evidence, is disclosed in the opinion. The penalty imposed by a verdict of guilty was a fine of fifty dollars.

Tried below before the Hon. D. P. Marr. The indictment charged the embezzlement of a horse, the property of H. V. Murchison. The trial resulted in conviction, and the penalty awarded was a term of five years in the penitentiary. H. V. Murchison was the first witness for the State. He testified that he would not positively swear that the defendant was the man who got his horse, but he verily believed so.

Tried below before the Hon. C. G. White, County Judge. The opinion discloses the entire case. A fine of one hundred dollars was the penalty imposed by the verdict of conviction.

. Appeal from the District Court of Shelby. Tried below before the Hon. A. J. Booty. The first head-note refers to the indictment which explains the nature of this prosecution.

Tried below be • fore the Hon. L. D. Bradley. The offense charged against the appellant was the murder of Ada Sallard, in Navarro county, Texas, on Monday, June 25, 1883. The conviction was for murder in the first degree, and the death penalty was awarded.

Tried below before the Hon. E. Maltbie.- The indictment contained the two counts of forgery and an attempt to pass as true a forged instrument in writing knowing it to be forged, and in both counts declared upon the said instrument in hcec verba, as follows: “Blue Eidge, March 31st,'1883. “Messrs. Board & Markham: “ Sirs: Please let the bearer, William Jones, have the amount of ($15.00J fifteen dollars, and charge the same to me for a few days.

' Tried below before the Hon. I. B. McFarland. The conviction in, this case was for the theft of a horse, the property of D. W. Downing. The penalty awarded was a term of ten years in the penitentiary. The opinion discloses the evidence. The questions involved in the opinion are among those raised in the motion for new trial.

Tried below before the Hon. J. R. Eennard. The conviction in this case- was for the theft of a yearling, the property of J, R. B. Barbee. The penalty imposed was a term of two years in the penitentiary. The opinion states the facts.

Tried below before the Hon. L. W. Moore. The indictment in this case charged the appellant with the theft of two horses, the property of E. L. Norris, on the sixteenth day of May, 1883. The penalty imposed by a verdict of guilty was a term of eight years in the penitentiary. E. L. Norris testified, for the State, that he lived about twenty miles west of San Antonio, in Bexar county, Texas.

Tried below before the Hon. J. R. Kennard. The indictment charged the appellant with the murder of Robert Linson, in Leon county, Texas, on the twenty-fifth day of March, 1882. The conviction was for manslaughter, and the penalty imposed by the verdict was a term of two years in the penitentiary. H. F. Tetor was the first witness for the State.

Tried below before the Hon. J. C. Robertson. Held: as they wished to ascertain if any one, and whd, was suspicioned. Witness refused to go, pleading engagements, and they left, saying that they supposed the people would erect a monument over the nigger’s grave. They returned that evening by witness’s house, and asked witness what he was going to do—if he was going to tell.

Tried below before the Hon. C. G-. White, County Judge. The information charged the appellant with an aggravated assault and battery upon Zack Lincoln. A fine of twenty-five dollars was imposed by a verdict of guilty.

Tried below before the Hon. A. J. Hood. The indictment charged the appellant with the theft of a cow and calf, the property of Charley Shands, in Tarrant county, Texas, on the tenth day of January, 1883. Conviction was the result of the trial, and a term of three years in the penitentiary was the penalty awarded. Charley Shands, the first witness for the State, testified that both he and defendant lived in Fort Worth.

Tried below before the Hon. D. H. Lane, County Judge. The information charged appellant and Wallace Thompson jointly with an aggravated assault upon W. T. McKinney. The appellant, being alone upon trial, was convicted and fined in the sum of twenty-five dollars.

Tried below before the Hon. Joe Abbott. Appellant was indicted and convicted for the theft of two head of neat cattle, the property of J. L. Boynton, on August 3, 1883. A term of two years in the penitentiary was the punishment assessed against him.

Appeals from the District Court of Cooke. Tried below before the Hon. C. C. Potter. On August 24, 1883, the grand jury of Cooke county presented two indictments against 0. D. Sharp, the appellant.

<p>1. Jury Law.—In the selection of jurors the law of Texas ignores all considerations of race or color, but invests no court with supervisory power over the selections made by the jury commissioners. If any supervisory power inherently belongs to the courts, it would be exercised only in a clear case of fraud or corruption in the action of the jury commissioners, or to avert such wrong as would shock the sense of justice and frustrate the purposes of law.</p> <p>2. Same—Civil Rights oe Negroes.—A negro being charged with the murder of a white man, his counsel moved the trial court to quash the special venire, because: first, the jurors were selected solely from persons known to be not the equals but the superiors of the defendant; and, second, because the jury commissioners, by refusing to select negroes as jurors, unjustly discriminated against persons of the negro race. The facts were that the jurors who tried the case were white men who were legally drawn from the list of jurors legally selected at the preceding term of the court, and before the homicide was committed. The trial court entertained the motion to quash, heard evidence upon it, and, no fact being shown in its support, overruled it. Held, correct.</p> <p>3. Same—Constitutional Law.—The provision of the Code of Procedure (Article 625) which prohibits any challenge-to the array of jurors selected by jury commissioners does not contravene the Fourteenth Amendment to the Constitution of the United States. The criminal laws of this State make no distinction between colors, races, nationalities or conditions of individuals, but regard all as equals and as entitled to equal protection.</p> <p>4. Jury Law—Practice.—In testing the bias dr prejudice of a proffered juror, proper questions should be allowed; but, to be proper, a question should be relevant to the juror’s impartiality. Whether the juror had the “same neighborly regard” for a negro as for a white man was an irrelevant inquiry, and was properly disallowed. And if the disallowance of the question was not proper, it would not be revised on appeal, or held to be material error, unless it clearly appeared that the trial court, in disallowing it, abused its discretion to the prejudice of the appellant.</p> <p>5. Evidence—Practice.—Objections to the rulings of the trial court in the admission or rejection of evidence must be taken at the trial in that tribunal. If not made there, they are to be considered waived on appeal.</p> <p>6. Murder—Pact Case.—See evidence held sufficient to sustain a capital conviction for murder.</p>

<p>Appeal from the District Court of Hunt. Tried below before the Hon. G. J. Clark.</p> <p>• On Saturday, the ninth day of December, 1882, Doctor W. R. Skinner, a practicing physician and a resident of Hunt county, was called from his .home to attend a patient who lived a few miles distant. Late the same evening he returned to his home, bearing on his person several gun shot wounds, which he said he had received while crossing a bridge on his homeward way. These wounds were not immediately fatal, but, according to the medical testimony, they caused pysemia or blood poisoning, and thereby, on the eleventh day after they were inflicted, resulted in the death of the wounded man. After they were inflicted, and before their fatal result, the appellant (wTho is styled M. D. Hart in the indictment, but usually called “Mart. Hart” in the testimony) was arrested on the charge of an assault with intent to murder Doctor Skinner, and an examining trial upon that charge was held by a justice of the peace whose precinct adjoined that in which the shooting was done. On that trial the testimony of Doctor Skinner was taken and reduced to writing. Its admission on the appellant’s trial for the murder of Skinner raised some of the questions raised on this appeal.</p> <p>On January 5, 1883, the grand jury of Hunt county presented an indictment charging the appellant with the murder of Skinner, on the ninth of the preceding December, by shooting him with a gun. On the fourteenth of the same month a trial was had, and appellant was convicted of murder in the first degree. The jury fixed a life term in the penitentiary as his punishment. Being refused a new trial, he appealed.</p> <p>Wiley Murphy was the first witness for the State. He testifled that he lived eight or nine miles southwest from Greenville, in Hunt county, on Caddo creek, and about one and a half or two miles southwest from a bridge on the Greenville and Terrell road. The witness’s mother was taken sick on the evening of Saturday, December 9, 1882, and at about one o’clock he went for Doctor W. R. Skinner, the deceased. He reached Doctor Skinner’s between two and half-past two o’clock, the distance being about four miles, and the road from one house to the other leading over the bridge. Doctor Skinner did not return along with the witness; the witness traveling on horseback, and he in a buggy. The witness met no one going to or returning from Doctor Skinner’s, but at the Van Sickle’s postoffice he saw Sam. Van Sickle, who had charge of the office, and told him who he had been for. and for what purpose. Doctor Skinner left the witness’s house, on his return to his home, that evening about five o’clock—perhaps five or ten minutes later. He was then well, except that he was complaining of a slight pain in his back. He was not shot when he left the witness’s house, but was shot during that evening. The bridge, the houses of the witness and Doctor Skinner, and all of the intermediate road, are in Hunt county, Texas. One traveling the road between these two houses would have to let down one pair of bars consisting of two poles.</p> <p>James Husbands testified, for the State, that he lived about ten miles southwest from Greenville, and from two to two and a half miles from the bridge over Caddo creek, and about three-quarters of a mile a little east of south from'Wiley Murphy’s. He remembered the shooting of Doctor Skinner, but not the day on which it occurred. The defendant came to witness’s house on that day about eleven o’clock, ate dinner with the witness, and later, with the witness, rode around a tract of land he owned, which the witness was talking of buying. Returning from this trip around the land, they came to a point about a quarter of a mile from the witness’s house, stopped, talked a while, and there parted, the defendant going toward his house, and the witness toward home. The sun was then about an hour or an hour and a half high. Defendant rode a dark pony horse, and wore a yellow oil ‘ ‘slicker” coat. Dave Pitts, Ward, Tredway, Miles Van Sickle, Mrs. Mitchell and Durham lived between where witness and defendant parted and the bridge.</p> <p>Cross-examined, the witness stated that the bridge was on the Greenville and Terrell road. The Van Sickle postoffice is the first house south of the bridge. Mrs. Mitchell lived a quarter of a mile west of the Greenville road. Ben. A. Van Sickle lived three quarters of a mile or more southeast from Miles Van Sickle’s place, which is the postoifice, and one mile and three-quarters a little east' of south from the bridge. The land which the witness and defendant had looked at lay in the fork of Elm and Big Caddo creeks, and a little west of south of the witness’s house. Witness, Ben. A. and Miles Van Sickle lived between Big and Little Caddo. Witness and defendant parted west of the Terrell road, and over two miles distant from Ben. A. Van Sickle’s. To run a line from the bridge to this point, it would be a half mile east to B. A. Van Sickle’s. Rube Smith lived on a neighborhood road that led into the main Terrell road opposite B. A. Van Sickle’s. Traveling that road, defendant would have had to pass Rube Smith’s and Dave Pitts’s, who lived on John Pierce’s place, a little south of Lee Pierce. His route to B. A. Van Sickle’s would have been to the Terrell road by Rube Smith’s and Dave Pitts’s. From the point where the neighborhood road entered the Terrell road it is one and a half miles to the bridge, the road passing near the Van Sickle post-office, within a half mile. It was two miles to the bridge from where witness and defendant parted. The defendant had no arms about him that the witness saw. He certainly had no gun while with witness. When the witness and the defendant parted, another party was coming toward the defendant in a gallop. Witness and defendant had just inquired for Turner Ussery at Ussery’s house, and found he was not at home, and when witness saw the man coming he said to defendant: “Yonder is Ussery, now,” and defendant went off in a trot and met the man about one hundred and forty yards distant. Witness did not know the man.</p> <p>John Williams testified, for the State, that he saw the defendant two or three minutes after he and Jim Husbands (the last witness) separated on the evening that Doctor Skinner was shot. They had some talk about some logs the witness had bought from Jim Hale, some of which, the defendant claimed, grew on his land. The witness did not remember how it came up, but in the subsequent conversation he remarked that Mrs. Murphy was very sick, and the defendant asked if any one had gone for the doctor. Witness replied that Wiley Murphy had gone, and the defendant asked what doctor he had gone for. The witness replied that he had gone for Doctor Skinner, and defendant asked witness if he knew what time the doctor would get to Murphy’s. Witness replied that he might be there then, or on the way, whereupon the defendant left in a gallop toward Van Sickle’s. The sun was then near or quite two hours high. The defendant then lived somewhere near Van Sickle’s, the witness did not know exactly where. From the place of this conversation to the bridge, the "distance was two miles, thence a mile and a half or two miles to Van Sickle’s. From where the witness and defendant met to Van Sickle’s the distance was one mile. Van Sickle lived between there and the bridge. Defendant Avore a yellow oil slicker, and rode a black pony. He talked but a very short time after Avitness told him Doctor Skinner had been sent for.</p> <p>The cross-examination Of this witness was close and searching, but developed little of interest beyond the fact that the witness, according to his statement, met Wiley Murphy at the Van Sickle’s postoffice, and from him learned that he was going after Doctor Skinner. When he met the defendant, at the time of the conversation deposed to, defendant had no gun. One purpose of the cross-examination appeared to be to show feeling on part of the witness against the defendant. The witness denied that he told Levi Warren to go before the grand jury and swear all he could against the defendant. He saw no one but defendant at the place of the meeting. Witness did not pass Jim Husband’s house. He saw York Hunnicutt leaning against the fence at the house of a negress named Harriet, who lived where R. Smith lived. Hunnicutt had no jug.</p> <p>York Hunnicutt testified, for the State, that he lived on the old Darling place, about a mile and a half from Wiley Murphy’s, and about a half or three-quarters of a mile from the bridge. Witness saw the defendant about an hour and a half by sun on the day of the shooting, below the Pierce field, near Jim Husband’s, and west of the Terrell road. He Avas riding a black pony in a gallop, and wore a slicker overcoat. He passed the witness in the road, both going the same way, and said “howdy” to the witness as he passed. Witness had previously seen him on that day at Jim Husband’s. Witness got home that evening a little after sundown, and Remained all night. He heard the report of a gun about a quarter or half hour after he got home, between his house and the bridge, or at the ford or bridge. It was a very loud report. It was not then to say dark; one could see tolerably well. Witness heard two shots that" night, but only one at that time. Between that Saturday evening and the death of Doctor Skinner, the witness saw the defendant at Harriet Ward’s, where the witness and Bill Ward were picking cotton Defendant did not enter the field, but witness and Bill were near the ends of the row. He asked Bill Ward if he heard the report of a gun on that Saturday evening (December 9), and Bill said that he did. He then asked Bill if it was dark at the time, and Bill replied that he did not think it was quite dark. Witness did not remember that Bill did or did hot tell defendant where he was at the time. According to the recollection of the witness, the defendant asked him what time he (witness) thought it was when the gun fired.</p> <p>The defense subjected this witness to a very rigid cross-examination. He stated that when he was at Husband’s house, at twelve o’clock on that Saturday, Mr. Husband, his family, the defendant, and a girl from Mitchell’s, were there. Witness got a half gallon of molasses at Husband’s and took it home, going by Harriet Ward’s, where he got his dinner, with Harriet, ft. Smith and the children. He left Harriet’s about one hour and a half by sun. While at Harriet’s he saw John Williams pass, and he was two or three hundred yards from Harriet’s, on foot, when the defendant passed him on the road. He was then on the Terrell road near the Pierce place. Before he got to the Terrell road he stopped at Dave Pitts’s, on the John Pierce place. Aunt Harriet, her daughter, Mrs. Pitts, and the children were there. After sitting there awhile he started on and met Dave Pitts, and talked with him. He then went on toward the post-office, and saw Levi Warren on the prairie, about a half mile from Van Sickle’s house. Levi was then a considerable distance off, had a rifle, and seemed to be in the act of shooting a rabbit, c but witness did not hear him shoot. He saw Levi again, near Van Sickle’s house, but did not speak, though he was close to him. Witness went on home and got there before good dark, and heard the shot down about the bridge, a half or three-quarters of a mile off, within a quarter or half an hour. The bridge could not be seen from where witness lived. The bridge was near a hundred feet long, and is level only at the top; is a little higher on one side, and slopes on the south. The centre is two or three feet higher than the south bank. On the south side of the bridge there is a kind of second bank, as large as a couple of chairs or larger. Just above and on the south side there is small brush which reaches within a few feet of the bridge. Beyond the brush, on the south bank of the creek, is a glade; about a hundred yards beyond is a drain, and there the roads fork, the left hand, going by the postoffice, is the Terrell road; the right hand goes by witness’s house, and Wiley Murphy’s. Before the defendant had the conversation with witness and Bill Ward, testified to, the witness had heard that the defendant had been arrested and was on bond. Jeff. Mason came to the cotton patch at that time, and went off with defendant. Witness did not see Mason when defendant commenced talking with him.</p> <p>Mrs. W. R. Skinner, the surviving widow of the deceased, testified, for the State, that between three and four o’clock p. m., on Saturday, December 9, 1882, Doctor Skinner was called to see Mrs. Murphy, who was reported very sick. He left, traveling, as was his custom, in a two horse buggy, and in as good health as was usual to him. He had never been in robust health. He returned about twilight. Witness was then at supper, and one of her little daughters went to open the gate for him; and then he told her to call Medes Griffin, as he had been shot. He was assisted out of his buggy by Medes Griffin, his son Bob, and others of the family. Medes and Bob assisted him into his room, when he sat down, and witness took off his clothes. He wore his ordinary or usual suit and an overcoat, and was bleeding profusely from wounds above the knee and in the wrist a.nd arm. Mack Hale and Bob, the witness’s son, went to Green-ville for Doctors Garrett and Milner, and returned with them in about an hour and a half. Doctor Skinner was shot on December 9, 1882, and died on the Thursday before Christmas. He was attended during that time by no physicians except Doctors Garrett and Milner. Doctor Goodloe called one day, and went into Doctor Skinner’s room to see him. The witness identified the clothing worn by deceased on the evening that he was shot, and the rug which he then used in his buggy.</p> <p>Doctor J. W. Garrett testified that, together with Doctor Milner, he was called to see Doctor Skinner on December 9, 1882, and reached his house about 9:30 o’clock p. m., and found him suffering from gun shot wounds. He was in pain and somewhat shocked, ■but was recovering from the shock. One shot went through the wrist joint of the left arm; one struck about three inches above the first on the same arm, and the third was a flesh wound, an inch or so above the left knee. Witness again visited him, with Doctor Milner, on Monday, and found him in much pain. In all, witness paid him four visits. He found Doctor Skinner, on the day before he died, in a very critical condition. His temperature was below normal; his mind was clear, but almost prostrated. His death was caused by secondary effects of the wounds—blood poisoning. Pyaemia might set.up in forty-eight hours, when suppuration sets in. Doctor Skinner died on the eleventh day after he was shot, his death being indirectly caused by the wounds. The clothes of the deceased being exhibited, the witness testified that the balls entered them from the left of the deceased.</p> <p>On cross-examination, the witness said that, from the range of the balls, he could not tell the position of the party inflicting the wounds relative to the-deceased, unless he knew the attitude or position of the deceased when shot. The party firing in this instance might have been a little lower than the deceased, or they might have been on level. The upper shot in the left arm broke the larger bone. The shot in the leg amounted to but little. The witness regarded the wounds as serious and painful, but not as mortal. Ho pyaemia had set in on Monday. On the day before he died, Doctor Skinner complained of pain in his stomach and bowels. At the time of the examining trial of the defendant, the condition of deceased was as favorable as at any time during his illness. Up to and at the time of the examining trial, it was the opinion of the witness that the wounds would not prove fatal. Profuse perspiration is one of the marked indications of blood poisoning. Gun shot wounds and supervening blood poisoning caused the death of Doctor Skinner, in the opinion of the witness.</p> <p>The testimony of Doctor Milner, for the State, was substantially the same as that of Doctor Garnett.</p> <p>The State next introduced the testimony of Doctor W. R. Skinner, which had"been reduced to writing at the examining trial of the appellant upon a charge of assault to murder the deceased. It reads as follows:</p> <p>“ My name is W. R. Skinner. I am acquainted with M. D. Hart, the defendant in this case. (Witness points defendant out in court.) I have known the defendant for about seven years. I saw the defendant on or about the ninth of this month—on Saturday evening last, which was the ninth day of this month. I had been called to see Mrs. Murphy, who was sick. She lived across Caddo, about four miles south of west from my house. I left home about three o’clock to go there. I left Mrs. Murphy’s about sundown—it might have been a little after sundown. I was in a buggy. I drove very fast, as I knew the roads were very bad in the bottoms of Farber and Caddo creeks. I met a man in the road directly after I left Mrs. Murphy’s. He asked me about Mrs. Murphy’s condition, and I talked with him a moment or two, and then drove on very fast. I don’t think I was more than ten or fifteen minutes going from Mrs. Murphy’s to Caddo bridge, north of Van Sickle’s, on the Greenville and Terrell road. My horses are always free to cross the bridge, but as I drove upon the bridge they began to shy and grow restless as if they saw something or were scared. I looked and saw Mart. Hart, the defendant, on the second bank of the creek, in a stooped position with a gun in his hands, and about the time I saw him, he, defendant, shot me. I did not have time to arrange the lines in my hands from the time I saw him until he shot. When he fired at me, he shot me in the thigh, above the knee in the leg, and in the arm. Several bullets lodged in my clothes. Defendant was on the left of me when he shot, and was also on the left of the bridge. The defendant was not more than ten or twelve feet from me when he shot. I had no trouble to see the party who did the shooting, and I know the defendant is the man. All this occurred in Hunt county, Texas.”</p> <p>(Crossed by the defendant): “ The defendant was on the other side of the creek from here. Defendant was not down in the bed of the creek, nor on the main bank, but was on what I call a second bank of the creek, or on the side of the bank. This bridge is near two miles from Mrs. Murphy’s. Mrs. Murphy lives about a mile and a half or two miles from Shamberger’s gin, and south of it, or a little west of south of it. I never saw any one but defendant at the bridge. I heard some parties talking before I got to the creek. I think a man can stand on the bank I have mentioned. I don’t think it would be too steep for him to do so. I don’t think defendant was more than ten or twelve' feet from me. 1" did not have to look back to see defendant when I drove on the bridge. He was to my left. The man I met was about a half mile from Mrs. Murphy’s. I came by Hunnicutt’s. I could have seen people distinctly when I passed Hunnicutt’s. Defendant was dressed in the garb he generally goes in, I think, but I did not notice and cannot say just what kind of clothes he had on.”</p> <p>(Ee-examined): “It was sufficiently light for me to see and make out who the defendant was, and my especial attention was directed to see who the party was, and I did not notice his clothing. My buggy did not hp,ye gun shots in it before I passed the bridge. The defendant shot me with a double barreled shot gun —or at least it looked like a double barreled shot gun to me.</p> <p>“W. R Skinner.”</p> <p>County Attorney Stinson, who represented the State on the examining trial, testified, for the State, that the above evidence related to the same transaction as that for which the defendant stands indicted. The proceedings against the defendant in that examining trial were for the wounds inflicted on Doctor Skinner on December 9, 1882, and the same for which the defendant was now on trial.</p> <p>Perry Houk testified, for the State, that in July, 1882, he had a conversation with the defendant in which Doctor Skinner’s name was mentioned. The defendant and witness were going home from Greenville at the time. Both he and defendant had been indicted by Doctor Skinner. Defendant said to witness: “ We must get Skinner out of the way before the January term of the court.” Witness asked “ Why,” and the defendant replied: “To beat our cases.” Defendant then said to witness: “John Houk’s wife is confined across the creek; there is brush across the creek, and that will be a good place to shoot him from. I don’t reckon two hundred and fifty dollars would get you to do it?”. Witness replied: “ No, nor a thousand.” Defendant then said that he had a good shot gun. Witness was with the defendant when, upon his examining trial, the latter was released on bond, and the defendant told the witness to keep his mouth shut—nothing more.</p> <p>On cross-examination the witness stated that he lived nine miles south of Greenville, where he had lived the greater part of his life. Witness left the county of Hunt in July, and was gone until March two years ago, when he was brought back from Falls county by the deputy sheriff, charged with theft of prop ■ erty belonging to Doctor Skinner. His only trial upon this charge of theft resulted in a mistrial. There were- other witnesses in the case besides Doctor Skinner, but witness could not say what their testimony would amount to on a trial. Since that mistrial, and during the present term of the court, the case against the defendant had been dismissed. Witness had told various parties what he would testify. He had told different tales about it, but could not say how many. Witness denied that he had told Mrs. Goodloe that he had been telling that defendant had offered him two hundred and fifty dollars to kill.the deceased, and that it was not true, and that he would not so swear. He did not tell Schrympsher that he had been before the grand jury but was not asked about the two hundred and fifty dollar matter, which was not true, and to which he, witness, would not swear in open court. Witness did not tell him that he was glad that Skinner was dead, and that Skinner ought to have died when a boy. He did not tell Schrympsher that he had heard that the defendant’s friends were trying to fasten the killing on him, and that if it came to swearing lies, he, witness, could swear lies too. Referring to the matter in a conversation with Schrympsher, witness told him that he would swear nothing but the truth. Witness denied that he told Lawson that he, witness, had been telling the two hundred and fifty dollar story in order to get his own case off the docket, and because defendant’s friends were trying to fasten the killing on him. Witness told Mrs. Goodloe that he had understood she had told what Doctor Goodloe had reported him, witness, to have said, and that, in fact, he had told Doctor Goodloe nothing about it. Schrympsher told witness that he had understood witness had been before the grand jury. Witness told him that he had not been before the grand jury. The opinion discloses the remaining progress of the cross-examination.</p> <p>J. W. Dagget testified, for the State, that seven months before the killing, in the course of a conversation with the defendant regarding his difficulty with Doctor Skinner, witness said to him: “ You ought to setCo this thing.” Defendant replied: “D—n him, if I can get him in the right place I will settle with him.” Witness did not tell of this conversation until after the killing. This conversation occurred in defendant’s sewing machine wagon. He was then in the machine business.</p> <p>The State next introduced in evidence an indictment filed on the twentieth day of January, 1881, charging the defendant with an assault with intent to murder Dr. Skinner, on the sixth day of December, 1880.</p> <p>The substance of the testimony of Mrs. Mitchell, for the State, was that she lived about a half mile from the bridge. Between sundown and dark, on the Saturday in question, she heard the report of a gun down about the bridge. She saw neither the defendant nor the deceased that day. Warren had got home before she heard the shooting, and Husbands left her house just before sundown. She saw no one else that she remembered, though she took no notice of the road, and others might have passed.</p> <p>Bill Ward testified, for the State, that he was near the bridge (about a hundred yards west), and heard th ;■ shooting, and then heard a buggy or wagon run across the bridge. M. Clayton was with witness. The report of the gun was very loud. Witness knew nothing of his own knowledge about a gun being found. Witness then corroborated the witness Hunnicutt in regard to the subsequent conversation with defendant at the cotton patch fence of Harriet Ward, adding that defendant asked him if he saw any one at the bridge, and that he answered in the negative. It was not good dark when the shot was fired, and the witness thought he could have recognized a person at a distance of twenty-five or thirty steps.</p> <p>The cross-examination of this witness, which was close and incisive, disclosed that he and Clayton, who were traveling in an ox wagon, had crossed the bridge without incident of any kind, and without seeing any one, or noticing anything unusual about it, about three minutes before the witness heard the -report of the gun, and in that time they had gone about one hundred yards, where they had stopped for#Clayton to get a drink. The State closed.</p> <p>Mrs. H. G-oodloe testified, for the defense, that a short time before this trial, Perry Houk was at her house, and that she had a conversation with him. Perry Houk said,_in that conversation, that it was not true that the defendant had ever offered to hire him to kill Doctor Skinner. He said that he had never made such a statement to any one, and that the statement was not true. Witness was not related to the defendant.</p> <p>Dave Schrympsher testified, for the defense, that on the first Saturday in January, 1883, he went to Perry Houk’s house to see him and collect some money due him by Houk. From there he went with Houk to Simmon’s mill, and en route Houk told him that it was not true that the defendant had tried to hire him to kill Doctor Skinner. He also told the witness in the same' conversation that he had been before the grand jury, but was not asked about the reported attempt of the defendant to hire him to kill Skinner.</p> <p>On his cross-examination, the witness stated that he and defendant had been good friends for ten or fifteen years, but were not related. The witness’s brother had married the defendant’s sister. Witness did not go to Houk’s to “ pump ” him about this case, but, as stated, to collect money due him. He found Houk about ready to go to mill, and accepted his invitation to accompany him. He had known Houk for ten or fifteen years, and they were good friends.</p> <p>Abi Lawson, for the defense, testified that in a conversation with Perry Houk about this case, Houk told him that he, Houk, had been telling around that defendant had tried to hire him to kill the deceased, but that it was not true; that defendant never did offer to hire him to shoot deceased. He also told the witness that he had understood that the defendant’s friends were trying to involve him in the murder of Skinner.</p> <p>On cross-examination, the witness denied that he had ever advised Perry .Houk to leave the country, or offered him money wherewith to procure a horse for that purpose.</p> <p>Mack Hale testified, for the defense, that he was in Green-ville on Saturday, December 9, 1882, and from there went to Doctor Skinner’s that night, with the doctor’s son Bob, arriving at the house about dusk, when they washed and went in to supper. While at supper witness heard that the doctor had come, and got up and went out. Medes Griffin assisted the doctor out of his buggy, the latter saying that he had been shot. Witness remained at the house two or three minutes, and then returned to town for the doctors.</p> <p>When witness and Bob Skinner reached Doctor Skinner’s hoyise the lamps were burning. Doctor Skinner got to the house about a half hour after witness did. Ho one else was there except the witness, the doctor’s family, Medes Griffin and a boy named Peteets. The doctor’s two grown daughters went out on the gallery. Medes Griffin’s wife was in the hall. In answer to questions asked him, the doctor said that he did not know “who did it, but that he was shot on Caddo bridge. Witness did not return to Skinner’s from town that night, but went next morning, and, meeting the sheriff, went with him to the bridge.</p> <p>Cross-examined, the witness said that, two or three minutes after Doctor Skinner had been taken into his room, he asked the doctor who shot him, and the doctor replied that he did not know. When the witness went to town, he was not authorized to get the sheriff. He met the sheriff next day, but did not know whether or not Doctor Skinner had sent for him. Witness did not know when the defendant was arrested. He, witness, left the sheriff and others at the bridge. That officer said nothing about arresting any one. At that time an indictment was pending against the defendant for an assault with intent-to kill the deceased. Witness had known defendant since boyhood, and they were special friends, but the witness could not say that Doctor Skinner knew that fact. Witness could not be mistaken about Doctor Skinner’s answer to the question: 11 Who shot you?” propounded by witness. This question was asked two or three minutes after the doctor was taken into the house. His answer was not a refusal to tell, but was that he did not know. Mrs. Skinner, Griffin and others were present, and the witness presumed they heard what was said. Deceased was a physician, and forty-five or fifty years old. Witness had known him five or six years, and was on good terms with him and his family. The way witness came to be at Skinner’s house that night was this: He was with Bob Skinner in town during the day, and 'remarked that he was going out to Condon’s. Thereupon Bob proposed that if witness would go by home with him he would accompany witness to Condon’s.</p> <p>Levi Warren testified, for the defense, that he lived a half mile southwest of the bridge. He did not see either the defendant or the deceased on the day that the latter was shot. Dave Pitts and witness were hunting that day. He saw York Hunnicutt and Mrs. Mitchell about night. He saw Mart. Short at the Van Sickle’s school house, going toward Van Sickle’s. Short’s wife was with him. Witness went on home, hunting birds, and tried to shoot a rabbit on the way. He got home after sundown. He heard a gun fire that night, and it was then as dark as it was at any time that night. It made a loud report, and the witness thought it was fired east of him, toward the bridge. Witness had oaten his supper and was then skinning a rabbit.</p> <p>Cross-examined,.the witness stated that he recollected the day of his summons before the inquest, and that he then had a conversation with Colonel Jones, counsel for the State, in the presence'of Mr. Collier and York Hunnicutt. He did not think that in that conversation he told Colonel Jones that it was not dark, and that he did not know in which direction the shot was fired. The wind was so high it was difficult to tell which direction the report came from. Witness could not say positively from which direction he heard the report, but his impression was that it was from the east.</p> <p>Defendant here introduced an indictment against W. R. Skinner for an assault with intent to murder defendant, indorsed with the names of the witnesses and the verdict “not guilty.”</p> <p>W. W. Collier testified, for the defense, that he represented W. R Skinner in the prosecution on the indictment just read. That indictment and the one against defendant for assault to murder the deceased grew out of the same transaction. Mack Hale was a material witness in the prosecution against the deceased. Jeff. Hamilton was the principal witness for the defense in Skinner’s case, and defendant, John and Mack Hale were the principal witnesses for the State.</p> <p>The material part of the testimony of the defendant’s father-in-law, E. J. Head, was that he lived within a half mile of the bridge, and heard the discharge of a gun in the direction of the bridge on the evening of Saturday, December 9, 1882. He had sat down to eat his supper. He had lights, and outside it was thicic dusk.</p> <p>Cross-examined, the witness stated that an hour was the period of time elapsing between sundown and the close of daylight. It was not totally dark when he heard the shot, but was dusk. Defendant lived a mile and a half or more from witness. From the bridge to Van Sickle’s the nearest possible route is a mile, and to accomplish the journey in that distance a man would have to be familiar with the woods and go through them. A man on horseback would have to go around a wire fence, and to go around it on the east he would have to travel a mile and a half in going from the bridge to Van Sickle’s. Defendant had been married about eighteen months, and had not been engaged in the sewing machine business since his marriage.</p> <p>Dave Pitts next testified for the defense. The substance of his testimony was that he met York Hunnicutt, about sunset, some two hundred yards from his, witness’s, house. Hunnicutt was then a good half mile from his house, and had about ten pounds of flour oil his shoulder. Hunnicut was on foot, on the Terrell road.</p> <p>Parilee Head, the defendant’s sister-in-law, who lived with her father a half mile from the bridge, testified that she heard a shot in the direction of the bridge that night. It was after dark.</p> <p>Stephen Parker testified, for the defense, that he lived within a quarter of a mile of Doctor Skinner, and was sick in bed on the day and night that the latter was shot. Witness heard no hallooing at Skinner’s house until seven' o’clock that night. His attention was directed to the time by Bud Mobley, who came into the house at that time and called witness’s attention to the hallooing. It is two miles from Skinner’s to the bridge, over very good roads.</p> <p>B. A. Van Sickle testified, for the defense, that defendant passed his house on Saturday, December 9, 2 882, between nine and eleven o’clock, saying that he was going to see Jim Hale. He returned to witness’s house before sundown, stayed there until bed time, playing cards, when the witness left him and went to bed, and found him at his house next morning. Defendant, Sam. Van Sickle, Mart. Short, and others perhaps, were playing cards when the witness went to bed. Short and his wife passed that night at witness’s house, having come there about twilight. The defendant had then been at the witness’s house at least a half hour. His horse had been taken to the lot some fifteen or twenty minutes.</p> <p>Cross-examined, the witness stated that it was two miles from his house to defendant’s. Defendant’s wife was not with him that night. Short and wife, Sam. and Henry Van Sickle, and witness’s wife and daughter were at witness’s house that night. Henry Van Sickle lived at Baton Rouge, but had been at witness’s house for two nights before that Saturday night. He was to return on Thursday. Witness did not know whether or not he went. ■ Henry was witness’s nephew. It was a mile and a half from witness’s house to the bridge. Going around the pasture, east, to the bridge made but little difference. Witness was in the house and yard all evening. The defendant had his horse put up about dusk. He was not in the house all' of the time after he came, but part of the time was in the front and back yards. Witness did not think that Sam. Van Sickle was with defendant all the time. Short was with him part of the time. Defendant did not sleep in the same room witness did. Defendant came to witness’s house that evening when the sun was a half hour high or higher. Defendant took supper at witness’s house about dusk—the usual supper hour. Witness could state on his oath that defendant did not leave his house that night after he got there. Nothing but the fact that witness was sitting outside reading, at the time that defendant reached his house, enabled the witness to locate the hour of the defendant’s arrival as he did. No other particular occurrence enabled him to locate the time, but he knew that the sun was a half or three-quarters of an hour high. The after occurrence did not enable the witness to fix the time. Defendant came from the west on the pasture road, and not on the Terrell road. He rode a black pony. Witness heard no remark about defendant’s pony being placed in the lot that night, for witness had no lot. Witness had expressed his opinion about this case just as any citizen would do. Witness did not think he had ever said, in the presence of Stewart and Dawson, in Greenville, that defendant had a right to kill Skinner, and that he did kill him. He may and perhaps did say, in speaking of the first shooting affray, that defendant then had a right to kill Skinner, and, if he had, would not have been hurt for it.</p> <p>■ Mrs. B. A. Van Sickle testified, for the defense, that the defendant came to her house about a half an hour by sun, and remained there, without leaving the premises, until nine or ten o’clock next morning. Of this fact she was positive. This was Saturday, December 9, 1882, the day Skinner was shot. The cross-examination of this witness failed to shake her testimony in the least, and the witness declared that she and her husband had not talked these circumstances over. Defendant left witness’s house about eight o’clock next morning, and went toward his home.</p> <p>Sam. Van Sickle testified, for the defense, that the last two witnesses, his father and mother, lived with him. He gave an account of his own whereabouts on the fatal Saturday, locating himself in his cotton patch. The defendant came to his house about a half an hour by sun, and remained there continuously until next morning. Witness was at the postoffice that day and saw John Williams and Wiley Murphy there.</p> <p>Cross-examined, the witness stated that he was not at the bridge on Sunday morning. He slept with defendant and Henry Van Sickle that Saturday night. The mail reached the postoffice that evening between two and three o’clock. It was two o’clock when witness started from home to the postoffice. Witness remained at the postoffice until the mail came, and returned home some fifteen or twenty minutes before defendant arrived. Witness denied that, in the office of Judge Sherrell, in the presence of Sam. Stinson and John Martin, he stated that defendant arrived at his house about three o’clock p. m. Witness was mistaken in stating that he, defendant and Mart. Short slept together, if he made such statement at any time. They played cards together. Defendant reached witness’s house before Short and his wife did on that evening. Witness and defendant were feeding their horses when Short arrived. Witness denied that, at the depot in Greenville, he was asked by old man Hinson: “Sam, why did you shoot Doctor Skinner?” and that he replied: “I didn’t do it—Mart. Hart did it.” He did not hear the defendant exclaim during the night: “Sam, let’s run; yonder comes Ross.” Defendant had no gun at witness’s house that night; and got none at witness’s. There was no gun at the witness’s house.</p> <p>Mart. Short was the next witness for the defense. His testimony was in substance that he and his wife reached Captain B. A. Van Sickle’s a little before dark, on the evening of the shooting, and remained there all night. He did not see Sam. Van Sickle immediately on reaching the house, but saw him first in about a quarter of an hour, which was just before dark. Supper was not yet on the table. After supper the witness, the defendant, Sam. and Henry Van Sickle engaged in a game of euchre at cards. Witness and wife slept in the south room; defendant, Sam. and Henry Van Sickle in another room, and in the same bed. Witness repeated that it was not dark when he reached B. A. Van Sickle’s, and that he did not see the defendant and Sam. when he first got there; and stated that they came into the house about an hour later, and it was not then dark. Farther on in his testimony he said: “I cannot say positively how long it was after I got there before Sam. Van Sickle and the defendant came into the house, but think it was about fifteen or twenty minutes; and Sam. and the defendant came in before the lamps were lit. We all, Sam., Henry, Hart, I, my wife and Doches Van Sickle (B. A. Van Sickle’s daughter) slept in the same room that night.” Here the defense closed.</p> <p>Jim Higdon testified, for the State, that defendant was his step-uncle. Witness knew the double barreled shot gun owned by his, witness’s, father. It was a tolerably good gun, and made a loud report. Defendant had borrowed it about a month before the tragedy, and had it borrowed at the time Skinner was killed.</p> <p>Cross-examined, the witness stated his father was a gunsmith. When the defendant borrowed the gun he brought his own to be repaired. When he borrowed it he said he wanted it to hunt hogs with. Witness had seen that gun shoot short distances. At a distance of twenty feet it would not scatter shot over a space of six inches.</p> <p>John D. Martin testified that he had been to Little Caddo bridge since the beginning of this trial. Ross, Perkins, Jones, Terhune, Stinson and Cushman were there. Witness assisted to measure some distances, but not all of them. A plot being shown the witness, he stated that from the point indicating the pile of wood where the wagon stopped, it was three hundred and twenty-five feet to the bridge. From the road where the wood pile was to the road leading to York’s, the distance was one hundred and seventy-five feet. Witness was present in Judge Sherrell’s office and heard a conversation between Sam. Van Sickle and Stinson.</p> <p>Cross-examined, witness said that he could not tell position of the bridge, as the creek makes a curve at that point. The bridge has no railing, and is ten or twelve feet wide, and is considerably higher in the middle than at either end. It is twenty feet from the top of the bridge to the bed of the creek. The point where the negro Bill Ward said he was standing when the shot was fired was in sight of the 'bridge.</p> <p>Y. J. Boss testified, for the State, that it was from thirteen to fifteen feet from the second bank of the creek to the opposite end of the bridge.</p> <p>Jeff. Mason testified, for the State, that he had a conversation with defendant at old man Head’s, about twelve o’clock on Sunday, the day after the shooting. He told defendant that Colonel Boss (who Was the sheriff) wanted to see him at Burnett’s. This was as near an arrest as witness had made, though he would have taken him, as Boss had sent him to get and bring the defendant. Witness, however, had not arrested him. Objection that the defendant was in arrest was overruled. Witness told defendant that Boss wanted to see him, and he went without trouble. On the road to Burnett’s the defendant asked witness what Boss wanted. Witness replied that Skinner had been shot, and defendant asked if he was dead. His voice trembled at the first word or two, and then he remarked to witness that he did not know hut that Arnold would surrender him on his bond.</p> <p>Cross-examined, the witness stated that he did not tell defendant where Skinner was shot. Defendant told witness that he was at Van Sickle’s on the night of the shooting. About a week before the shooting Arnold told witness that he wanted to get off of defendant’s bond.</p> <p>Medes Griffin testified, for the State, that he was present when Mack Hale asked Skinner who shot him. Skinner replied: “ Ask me no questions.” If, in answer to Hale’s question, Doctor Skinner used the words: “I don’t know,” witness did not hear them. On cross-examination, the witness said that there was a great deal of noise about the house from the time Doctor Skinner came home until about eleven o’clock.</p> <p>Mrs. Skinner testified, for the State, that, in answer to Mack Hale’s question as to who shot him, deceased did not use the words “ I don’t know.”</p> <p>The motion for new trial presented the questions involved in the opinion of the court.</p>

<p>Appeal from the Criminal District Court of Harris. Tried below before the Hon. Gustave Cook.</p> <p>The grand jury of Harris county, on October 9, 1883, presented an indictment in which it is charged that the appellant, with implied malice aforethought, did, on the fifth day of August, 1883, kill and murder one John Williams, alias John Wilson, by striking him on the neck with a club, which was a deadly weapon. Appellant was found guilty of murder in the second degree, the offense charged by the indictment, and a term of five years in the penitentiary was assessed as his punishment.</p> <p>Smith Wort. the first witness for the State, testified that he knew John Williams, deceased, who was sometimes called John Wilson. Deceased was killed by a blow dealt him by Gus. Rutherford, the defendant, in a barroom on Milam street, in the city of Houston, Harris county, Texas, about six weeks prior to this trial. Witness was present when the difficulty occurred. The deceased was standing behind a table in the barroom, when the defendant came in, and, in passing by the deceased, turned or stumbled over the latter’s feet. The deceased told defendant there was plenty of room to walk without walking on his feet. Words not remembered by witness passed between the deceased and the defendant, when the deceased turned his back on the defendant, and made one or two steps from him, and then the defendant picked up a door bar and struck the deceased with it. The deceased fell, and the defendant walked out of the barroom into the street. The door bar was two by four inches, and about four and a half or five feet long. It was standing against the wall, three or four steps from defendant, when he took it and struck the deceased.</p> <p>On cross-examination, the witness stated that the deceased cursed the defendant when the latter stumbled over his feet. There was but a narrow space between the wall and the table behind which the deceased was standing. Witness saw an unopened knife in the hands of the deceased when he fell. Witness did not see deceased try to open the knife, and would have seen such an attempt if deceased had made it.</p> <p>Jim May, for the State, testified that he was present when the defendant struck and killed the deceased. Defendant stumbled over deceased’s feet, and the deceased cursed him, and then handed a bottle of whisky to Smith Wort, and walked close up to defendant and cursed him again. Deceased then turned his back on defendant and walked two or three steps, when the defendant picked up a door bar that was against the wall and struck the deceased with it. Deceased died in a very short time. After he fell, however, he got up and walked into another room. Defendant, after striking the deceased once with the wooden door bar, walked out of the barroom. As he was going-out, some one said, “Gus., you should not have struck him;” and the defendant replied: “What business of yours is it?”</p> <p>On cross-examination, the witness said he did not see the deceased try to open the knife which was found in his hands after he fell.</p> <p>Dr. Rutherford, for the State, testified that he examined the deceased soon after his death. It was caused by an occipital blow from some blunt instrument, which had the effect to dislocate the cervical joint of. deceased; “that is, he was struck on the back of the head, and the blow dislocated the neck.” The blow was received full on the back of deceased’s head. The State rested on the foregoing evidence, and—</p> <p>John Ransom was the first witness examined by the defense. He testified that he knew both the defendant and the deceased, and was present when the latter was killed. Deceased was behind a table, which was close to the wall and in a corner of the barroom. Defendant came in, and, in passing the deceased, stumbled over the latter’s feet. Deceased cursed the defendant for a G—d d—n son of a bitch, and asked him what in the h—11 he meant by stumbling over his feet. Defendant asked the deceased to excuse him. Deceased kept on cursing the defendant, and the latter said to him: “If you don’t let me alone, I’ll put you out of here.” Witness told the deceased to let the man alone; that Gus. had asked his pardon, and what more did he want the man to do; and if he wanted Gus. to get down on his knees and beg his pardon. Deceased then handed a bottle of whisky to Smith Wort, and walked over to where Gus. was, and cursed him again. Then he turned his back to Gus., made one step from him, and ran his hand in his pocket. Gus., the defendant, seemed to be watching the deceased. Deceased then made another step in the same direction, and pulled a knife. It was all done quickly. Deceased put his hands on the knife, and seemed to be trying to open it. After the second step, he turned half way around, with his hand on the knife, and, as he got half way around, the defendant pulled up the piece of wood, which was standing right near him, against the wall, and struck the deceased a lick on the back of the head. He struck the deceased but one lick, and then laid the piece of wood down, and walked out of the house. Deceased did not die immediately. He fell when he was struck, but afterwards got up and staggered into the next room. Just before he died, the witness went to him and asked him if he could do anything for him, and he replied: “Go away, you d—d son of a bitch.”</p> <p>„ On his cross-examination, this witness said that the deceased was trying to open his knife when the defendant struck him, and was turning on the defendant. Defendant did not come from' behind the table and follow up the deceased, and did not have to go anywhere to get the stick. It was close to him, and he just reached out his arm to get it.</p> <p>Fred. King, for the defense, testified that he saw the difficulty which resulted in the death of the deceased. Defendant stumbled over deceased’s feet, and asked deceased to excuse him. Deceased kept on cursing the defendant. John Ransom told the deceased to go away and let the defendant alone, or he would put him out of there, that he was tired of being cursed. Deceased then walked across the room to where Smith Wort was and gave him a bottle of whisky, and then returned to where the defendant was standing by the table, turned his back on defendant, made a step or two away from him, and drew a knife. Deceased was turning on the defendant, when the latter picked up a door bar and struck him. Deceased, as he was turning, had both hands on the knife, and, as it seemed to the witness, had turned about half around when the defendant struck him.</p> <p>On cross-examination, the witness stated that the deceased did not open the knife. He did not have time to open it, but had both .hands on it, and was trying to open it when the defendant struck. When deceased turned his back on defendant, just before he drew his knife, he was close to the defendant. The latter was behind the table, but came around from behind it when he struck the deceased. 0</p> <p>Re-examined by the defense, the witness stated that the table was about six feet long and two feet wide. Defendant and deceased were about the width of the table apart when deceased turned away from defendant, just before drawing his knife; deceased was at one corner of the table and defendant at the opposite corner, about two feet distant. Defendant made about one step behind the table to get the door bar, and then stepped back to his previous position. This brought him a little around the table, and is what witness meant by his statement that the defendant came from around the table.</p> <p>Two witnesses for the defense testified that the deceased bore the character of a desperate man, and one of them stated that the defendant, whom he had known for two years, was a quiet and peaceable citizen.</p> <p>One witness for the State testified that he knew the reputation of John Ransom, one of defendant’s witnesses, for veracity in the neighborhood where he lives; that he is quite a story-teller, and his reputation for truth-telling bad.</p> <p>On the right of self-defense, the charge of the court instructed the jury to acquit the defendant if they believed “from the evidence that, at the time, the deceased was making such hostile demonstration as to raise, reasonably, in the mind of the defendant the apprehension of immediate danger of his life or serious bodily harm, and that he acted under that apprehension, and killed John Williams.”</p> <p>A new trial being refused by the trial court, the defendant appealed.</p>

<p>Appeal from the District Court of Fort Bend. Tried below before the Hon. W. H. Burkhart.</p> <p>The indictment was presented on April 25, 1883, and charged that George Sterling, the appellant, did, on the fourth of March, 1883, with express malice aforethought, kill one Shed Oliver by shooting him with a pistol. At the autumn term of the court the cause was tried, and the appellant was- found guilty of murder in the second degree, with a term of five years in the penitentiary assessed as his punishment.</p> <p>• Deceased and defendant, and all the witnesses to the homicide were negroes. The encounter which resulted in Oliver’s death occurred suddenly about the middle of the night of March 4, 1883, in the county of Fort Bend.</p> <p>Melinda Johnson was the first and principal witness introduced by the State. She testified that on the night of the homicide she went to a party at Jeff. Curry’s, on the Lamar plantation. George Sterling, the defendant, and Shed Oliver, the deceased, were both at the party. About the time the party broke up, at twelve or one o’clock, the witness requested the defendant to accompany her to her home, which was on his route to his own. He consented to do so, and they left the house together. They had progressed but a short distance on the road when Shed Oliver, the deceased, walked-out in front of them and cut a stick. He then came back and walked up in front of the witness, stopping her and the defendant, and asked witness, “ What sort of a d—n lie was that you told me?” and then he struck witness across the face with the stick he had cut. Defendant spoke up and said: “You don’t have to hit my company,” or “the company 1 am walking with.” Then the deceased said to the defendant: “If you don’t like it, help yourself.” Defendant replied: “I can help myself,” and drew his pistol and fired it in the air, over the head’of the deceased. Then the deceased said: “You d—n coward, you are afraid to shoot me; you have not got the nerve, you son of a bitch; you only shoot to scare.” The defendant replied: “I ain’t, haven’t I? I’ll show you if I haven’t got the nerve,” and he then shot the second time, striking the deceased in the face, and the deceased fell to the ground. After the .deceased struck witness with the stick, he stood with his knife half open in his hand, and in the other he held the stick, drawn back and about to strike her again; and then it was that the defendant spoke to him as already stated. Witness, when struck by the deceased, had her arm in the defendant’s. The two shots followed each other in quick succession. There were but two shots. It all occurred in the night, but the defendant had a lantern, and it enabled witness to see the deceased and everything that occurred. Defendant, after he shot the deceased, gave the lantern to George Martin, and went off in another direction, and witness went bn home by herself. The day before the party the deceased asked witness if she was going to it, and she told him she did not think she would go. He wanted her to go, and not to go with anybody but him, and she told him that if she went she would go with whoever she pleased; that she did not have to ask him who she should go with to a party. Deceased replied to witness with an oath. This was what he alluded to when he asked what sort of a d—n lie was that she had told him. During the dance at Jeff. Curry’s the deceased danced up to witness a dance called.the “Indian Mollie” dance, which is a whore’s dance; and she became offended at him for dancing it up to her. She felt insulted, and told him so. This was the reason she wished to leave the party. The “ Indian Mollie ” dance is a vulgar dance. Deceased was a large man—a much larger man than the defendant, who was not his equal physically. The stick with which the deceased struck witness was as large as a good sized walking stick, and was green. The blow she received was a severe one, and pained her considerably. It was a hard lick. Both the deceased and the defendant were married men, but the defendant claimed to be separated from hiS wife. Witness also had been married, but she was separated from her husband when Oliver was killed. She did not go the party at Jeff. Curry’s with either the deceased or the defendant, but in company with another man and his wife. The night of the homicide was a dark and drizzly night, but witness knew that the defendant had a lantern, and, as they lived near each other in the town of Richmond, she requested his protection to her home. From the time the deceased struck the witness until he was shot and fell, everything happened very quickly, and in less time than she could relate it. The deceased and the defendant were from three to five feet apart.</p> <p>Wash. Hays, for the State, testified that he was at Jeff. Curry’s the night Shed Oliver was- killed. As witness was leaving the house, he heard a lick; and then he heard Shed Oliver say: “What did you tell me that lie for?” and then he heard defendant say: “ You don’t have to hit my company.” Then the deceased said: “If you don’t like it, help yourself, you d—n son of a bitch.” The defendant replied: “You hit my company, and if you hit her again I will kill you, you G-—d d—n son of a bitch.” Then the deceased said: “You have the advantage of me. I will see you another time.” Defendant replied: “Yes, I have the advantage of you; and if you hit my company again, I’ll blow your lights out.” Witness then heard a shot; and then the deceased said: “You shot, but you didn’t try to hit anything.” Defendant replied: “ I didn’t,' hey? ” and then there was another shot, and the deceased stumbled and fell backwards. Defendant then walked around the deceased, fired twice more, blew out the lantern, and walked off. Defendant’s first shot was fired in the air, over deceased’s head.</p> <p>Two other witnesses testified for the State. With slight variations, their testimony concurred substantially with that already related. One of them went up to the deceased immediately after the latter fell, and found him lying on his back. He had been shot in the corner of his eye, and died in about two hours. When this witness got to the deceased, there was a pocket knife, half open, lying by his left side. Witness also saw the stick. It was a green China stick, about two feet long, and about as thick as the finger of the witness, who was a large and athletic freedman. Deceased was a large and muscular man, and greatly superior to the defendant in size and strength.</p> <p>The defense proved an excellent character for ■ the appellant as a peaceable and well disposed man: He had been for years a house servant of one of the witnesses.</p>

<p>Appeal from the District Court of Waller. Tried below before the Hon. W. H. Burkhart.</p> <p>Appellant was tried for theft of a calf alleged to be the property of D. A. McAlpine and B. J. Stubbs. Being found guilty, his punishment was assessed at confinement in the penitentiary for the term of two years. He moved for a new trial, and also in arrest of judgment. Both motions were overruled, and he appealed.</p> <p>D. A. McAlpine, for the State, testified that on July 14, 1883, he and B. J. Stubbs owned a brindle cow and her calf, running on the range in Waller county. Witness had never given permission to the defendant to take either the cow or the calf, or to appropriate the same. On the day named the witness found the cow about three-quarters of a mile from the defendant’s house. She was lowing, and seemed to have lost her calf. To make her go to her calf the witness and his companions hallooed as if they were setting dogs on something. She went toward the defendant’s house and lowed at his gate, and- then went around the fence to a bunch of bushes, and there the witness and his companions found the head of a calf. By the flesh marks of the head the witness recognized it as the head of the calf of the cow already spoken of, belonging to witness and B. J. Stubbs. Witness then went to the justice of the peace and obtained a search warrant for the examination of the defendant's premises, and, with the warrant in the hands of E. Lacy, they returned to the defendant's, and there found on the fence the fresh clean hide of a calf. The hair on the hide was of the same color as the missing calf, and witness recognized the hide as that of the missing calf, which, like its mother, was of a brindle color. In the defendant’s smoke house they found some nice fresh meat, which looked like the flesh of a calf.</p> <p>On his cross-examination, the witness stated that the calf was ten or eleven months old when lost. Witness had not seen it for three or four weeks prior to the discovery of its head and hide, and did not know whether or not it was branded. The right side of the hide was gone, and there was no brand on the portion found. Witness recognized the hide by the color, and the head by peculiarities in the forehead and horns. Witness refused to accept the defendant’s offer to pay him fifteen dollars for the calf.</p> <p>B. J. Stubbs, for the State,' testified that he had not given his consent for the defendant to take the calf in question, which was the property of witness and D. A. McAlpine. The calf was branded with their brand on the right side, and was marked in both ears with their mark.</p> <p>E. Lacy, for the State, testified to his accompanying D. A. McAlpine to the defendant’s house, with the search warrant. Witness informed defendant that their business was to sea tii his premises for stolen meat, and for the hide alleged to be that of the calf of McAlpine and Stubbs. Defendant replieu that he did not know whether they would or not. Witness read the warrant to the defendant, and when he reached the part which placed the value of the calf at fifteen dollars the defendant stopped witness and told McAlpine that if he, McAlpine, claimed the calf, he, defendant, would pay him the fifteen dollars anfi say no more about it. The defense objected to this proof on the ground' that it was in the nature of a confession made under arrest and uncautioned; but the court overruled the objection, and the defense reserved exceptions. McAlpine refused the fifteen dollars, and the search proceeded. Fresh beef was found in the defendant’s smoke house, and the left half of the hide of a calf or yearling was found on his fence. The right side of the hide had been cut off, and there was no brand on the portion found. The hide was the same color as the missing calf. Witness knew the calf well, and had seen it the evening preceding the s.earch, when it and its mother were along with the defendant’s cattle, on the range about half a mile from defendant’s house. The ears had been cut off of the calf’s head which was found, but the head was exactly like that of the missing calf. The piece of hide found on the fence was fresh and clean, and did not appear to have been pulled about by hogs. Witness had not arrested the defendant when the latter offered to pay McAlpine fifteen dollars for the calf.</p> <p>W. K. McAlpine, a witness for the State, testified to the same material facts stated by Lacy and D. A. McAlpine. He and other witnesses were positive in their identification of the head and half hide as those of the missing calf.</p> <p>The defense introduced and examined a daughter of the defendant. She testified that the defendant, on July 14, 1883, killed a little beef about a year old. Witness attended to the cattle and knew all about them; her father knew but little about them. She penned the cattle the evening previous to the day on which the defendant killed the little beef. It was along with the other cattle, and belonged to the defendant. Witness knew it well, and Jniew it was the defendant’s property.</p> <p>On cross-examination, the witness stated that she was milking in the cowpen when the little beef was killed. Her mother was getting breakfast, and came out for beef for breakfast. The calf was gentle, and after it was roped and tied to the fence her father knocked it in the head with an axe. The head was thrown over the fence, and the hide was left in the pen where the calf was killed. The hogs and dogs got hpid of the hide and tore it, and about noon the defendant, after cutting off the part torn by the hogs and dogs, hung the remaining portion on the fence. The calf was in tolerable good order, and was marked and branded in the mark and brand of her father, the defendant.</p> <p>In rebuttal, the State re-introduced D. A. McAlpine, who stated that he was well acquainted with the live stock of the defendant, and was not aware that the defendant owned any such an animal as that spoken of by the defendant’s daughter. Witness had never seen one of that kind or description with defendant’s brand on it. The piece of hide found on defendant’s fence was fresh and clean, and bore no signs of having been pulled about in the dirt.</p> <p>H. J. Shown, for the State, testified to the same effect.</p> <p>The motion for new trial raised the question discussed in the opinion, and others not specially noticed.</p>

<p>Appeal from the District Court of Fayette. Tried below before the Hon. L. W. Moore.</p> <p>This appeal is from a conviction for an assault with intent to murder. The penalty assessed against the appellant was a term of two years in the penitentiary.</p> <p>The facts germane to the rulings are succinctly but clearly stated in the opinion.</p>

<p>Appeal from the District Court of Grimes. Tried below before the Hon. J. R. Kennard.</p> <p>At the spring term, 1883, of the District Court of Grimes county, the grand jury presented an indictment whereby it was charged that Granville Baldwin, the present appellant, did, on February 1, 1883, “with unlawful force an assault make in and upon the person of Elizabeth Turner, and the said Granville Baldwin did then and there, by force and fraud, and without the consent of said Elizabeth Turner, rape, ravish, and have carnal knowledge of the said Elizabeth Turner, the said Gran-ville Baldwin being a malo, and the said Elizabeth Turner being a’female; contrary,” etc.</p> <p>The cause was tried at a subsequent day of the same term, and the appellanc was found guilty, and his punishment assessed at death. His motion for a new trial was overruled, and he appealed.</p> <p>The opinion of this court sets forth the substance of the evidence adduced in behalf of the State to prove the corpus delicti at the trial of this instructive and important cause. Such other testimony as was introduced by the prosecution tended only to the proof of collateral circumstances not material to the questions discussed in the opinion. The appellant, it appears, left the neighborhood before he could be arrested, and was subsequently apprehended in the county of Harris.</p> <p>The first witness for the defense was Henry Rogers. He testified that at the time of the alleged rape he was at the house of W. T. Turner, the father of Elizabeth Turner. The witness, W. T. Turner and Zack Turner were sitting on the front gallery of the house, when Zack walked out into the yard, came back and touched W. I. Turner, and the two latter went out of the front gate and talked a while. Witness did not hear what they said. When they came back they and the witness went around into the back yard. About opposite the chimney they passed the defendant, but neither of them spoke to him. W. T. Turner repeatedly asked “Where is big Sis.?” (by which name Elizabeth appears to have been called in the family), and then went into the house and got a light, and came out and found her standing between the smoke house and yard. He asked her what she had been doing, and she said she had been attending to her own business. He asked her where she had been, and she told him she had been in the yard. Witness asked W. T. Turner what was the matter, and the latter replied that there was a d—d sight the matter, but never did tell witness what it was. Mrs. Turner told witness that Zack Turner said that Granville Baldwin had had Sis. down and done what he pleased to her. Witness, after washing up the dishes, started home, and on his way met the defendant, who was then going toward W. T. Turner’s, and was aljout a hundred and fifty or two hundred yards from Turner’s. Witness told defendant not to go to the house; that Mr. Turner was mad about something that had happened. Witness heard no cry of distress abono the house at any time.</p> <p>Ellen Baldwin, the appellant’s wife, was the only other witness introduced by the defense. She testified that she accompanied her husband to W. T. Turner’s on the day of the alleged rape. Mrs. Turner arranged the supper table and asked the defendant to come to supper. He replied that he did not want any, but informed her that Henry Rogers was there, and she told him to go and tell Henry to come to supper. Henry did not want any. About the time Mrs. Turner got done waiting on the table she missed her daughter (Elizabeth), and sent her other daughter to look for her. About that time the witness heard Mr. Turner call out to Elizabeth, apparently between the kitchen and the smoke house. He cursed, and asked her where she had been. She told him she had .been in the yard. He then asked her “ What?” and she told him she had been attending to her own business. W. T. Turner then went into the house to get his gun and pistol, and witness went in and asked him what was the matter. He took witness into the kitchen and told her that Granville,-the defendant, had had big Sis. down, and that Zack Turner saw him. Witness stayed in the kitchen a while and then went into Mrs. Turner’s room, where all the children were. Elizabeth came out of her room and played with the other children at a game called the “fist game.” She was as lively as any of the children.' About ten o'clock the girls went to bed. Elizabeth never complained of being hurt, and made no outcry.</p> <p>With the testimony of this witness the evidence was concluded.</p>

<p>Appeal from the District @curt of Wood. Tried below before the Hon. Felix J. McCord.</p> <p>In December, 1881, the grand' jury of Wood county presented an indictment against the appellant for the murder of Hugh Moore, on the first of August, 1881, by shooting him with a shot gun. At the autumn term, 1883, a trial was had, which resulted in the conviction of appellant for murder in the first degree, and the assessment of his punishment at a life term in the penitentiary.</p> <p>Mrs. A. Moore, the widow of the deceased, was the first, witness introduced by the State. She testified that her husband, Hugh Moore, was killed on August 6, 1881. She had known the defendant for several years. In the afternoon of Friday, August 5, 1881, Hugh Moore left his home to take to Mineóla, which was his market town, about eleven miles distant, four bales of cotton, which he had left at the gin. He took with him two wagons and teams, and was accompanied by Sam. McGehee and Ambrose George, two men who were living with him. The next day, late in the afternoon and nearly night, the witness, having been notified of the difficulty, went and met her husband, Hugh Moore, who was being hauled home in his wagon by Sam McGehee. He died in a few minutes after she reached him, and without being able to speak to her. The wound was in his right side, and was a very large one. Mr. Moore was about thirty-five years old at the time of his death.</p> <p>D. T. Heath, for the State, testified that in the spring of 1881 he ran a tie camp within two miles of the camp of Gilly, the defendant, who was also in the tie business. In April, 1881, witness and Pat. Lyson went by the defendant’s camp, and stopped there about an hour. Defendant was drinking, and he offered liquor to witness and Lyson, who drank with him. Then the defendant, addressing himself to the witness, said: “I suppose you are living on Hugh Moore’s place;” to which the witness replied that he was not, but was living at his tie camp, near Hugh Moore’s place. The defendant then remarked: “He’s a d—d rascal, and I intend to kill him if I ever get a good chance. He’s got a yearling running at my house, and I’ll give you ten dollars to get him to come after it.” (The defendant’s house was a mile or two from his tie camp.) Witness replied that he would not do it. Defendant then went into his tent, and soon returned with a shot gun and a pistol, and said he had them to use on Hugh Moore. As defendant st-art-qd out of the tent, the witness heard a woman inside say: “Oh, Mr. Gilly, don’t do that.” Witness could not say who the woman was, as he did not see her.</p> <p>On his cross-examination, the witness stated that John Jones, of Mineóla, was the first person who informed him of the killing of Hugh Moore by the defendant, and the first person whom witness told about the threats he had heard the defendant make against the deceased. Witness had since told several other persons about them. He did not want to hear the threats, and was sorry he ever heard them. When they were made, the defendant’s son Tom, Jim Jones and others were close by, but witness did not know whether they heard the threats or not. Witness remembered talking with H. W. Mohuran about the threats, but denied telling him that it was the defendant’s wife who spoke to defendant in the tent, and told him “ Don’t do that.” Witness repeated that he did not see the lady, and did not know who she was.</p> <p>Ambrose George, for the State, testified that he was twenty-two years old, and lived with Hugh Moore at the time he was killed by the defendant. Witness saw the killing. On Friday, August 5, ISM, Hugh Moore. Sam. McGehee and witness went to Mineóla with two loads of Moore's cotton. They went the main and only road from Moore’s to Mineóla, and camped that night about a mile from town. The next morning they went into town, and some time after reaching there the witness saw the defendant there, who had also come in a wagon. During the day witness saw the deceased and the defendant several times, but did not see them meet each other. Early in the afternoon witness noticed the defendant leave town. Where the deceased then was, the witness could not say. About two or three hours before sundown, the deceased, Sam. McGehee and witness started homeward by the same road they had come. Deceased and McGehee rode in the foremost wagon, and witness drove the other one in rear of them. About nine miles from Mineóla, when deceased and McGehee were driving along just in front of the witness, the defendant, on horseback, emerged from the woods on the right, and crossed the road in front of the wagon driven by deceased and McGehee. As he got by the side of their team he raised his gun into a shooting position and shot Hugh Moore, the deceased. As the defendant fired, McGehee grabbed his coat, which was lying in the wagon, and jumped out of the wagon, and as he did so the deceased returned the fire almost simultaneously. McGehee, on getting out of the wagon, fired four or five shots at the defendant as the latter rode off into the woods. The defendant fired at Mc-Gehee as the latter jumped from the wagon. Between the defendant’s second shot- and McGehee’s shots the deceased fired at the defendant twice, and then fell over in the wagon and never spoke afterward. Just as the defendant raised his gun in a shooting attitude either the deceased or McGehee exclaimed “Don’t shoot.” McGehee received a wound in his left hand, his hat was struck, and a shot passed through his hair on the side of his head.' When the defendant shot Moore, the latter reached forward and got his pistol from his saddle bags. Defendant’s horse, when he shot Moore, was close, by the side of Moore’s mules. The shot made a big hole on the right side of Moore, near the waistband of his pants. Defendant’s horse began to prance around when the.first shot was fired. When McGehee was firing at defendant, the latter was trotting off at a quick gait through the woods. Defendant circled around to the road leading back toward Mineóla, and witness saw no more of him. The shooting occurred at the top of a small hill leading from a ravine. .</p> <p>On his cross-examination the witness stated that he had lived with the deceased for five years before the latter’s death. He had previously lived about eight years with Mrs. H. Adams, who principally raised him, and with whom he went to live when he was an orphan about seven years of age. McGehee’s pistol was a small five shooter; the deceased’s was a large forty-four calibre six shooter. Defendant used a double barreled shot gun. Witness thought it was McGehee who said “ Don’t shoot,” but could not be positive whether it was the deceased or Mc-Gehee. Witness denied that he had ever told Sam. Sharp that the first shot was fired by deceased at defendant, and denied that he had ever so told Peter Whiteass or any one else.</p> <p>Sam. McGehee, for the State, testified substantially to the same material facts as Ambrose George, the preceding witness. When witness and deceased got to the top of a small hill, witness saw the defendant close to the side of their team, with his gun presented; and the deceased said, “Don’t shoot.” The gun was fired toward them,'and the witness jumped from the wagon, with' his coat in his hand, and as he did so, the defendant fired at him. One of the shot struck witness’s hand, across his thumb; another glanced his head, and a third went through his hat. When the defendant first made his appearauce, the deceased was driving, and he and the witness were talking. As the defendant fired, the deceased grabbed for his saddlebags, in which was his pistol. The firing all occurred in rapid succession. Witness did not see the deceased’s first shot. Deceased’s second shot was fired about the time the witness turned to shoot, after he got on the ground.</p> <p>Cross-examined, the witness stated that he and the deceased, when they started to Mineóla the day before the killing, took their pistols with them, as was their usual habit when they went to that place. If Ambrose George took along a pistol, the witness did not know it, and had not heard of it. Witness did not hear the deceased say anything about the defendant on the day of the killing or the preceding day, and never heard the deceased threaten the defendant at all. Witness had learned that the deceased and the defendant were enemies, and had been enemies for several years; but he had never heard the deceased threaten to hurt the defendant in any way, nor try to hire any one else to shoot or hurt the defendant. When witness discovered the defendant, as the latter raised his gun, witness and deceased were sitting on the end of the mattress they had taken along to sleep on, and witness was leaning on his elbows, with his head somewhat behind the deceased, who was talking to witness, with his head turned toward him. The bed of the wagon came nearly to their shoulders. Witness was positive that the deceased said nothing and did nothing until the defendant raised his gun to shoot. The deceased did not shoot first, nor try to shoot first. Defendant presented his gun and fired very quick, and the shooting which ensued was very rapid. The deceased lived for perhaps half an hour after he was shot, but never spoke. Witness drove immediately home with him. The whole load of buck shot seemed to have entered the deceased in a wad, just about or above the waistband of his pants, on the right. Witness had seen John Preston, but denied that he had ever told John Preston or any one else that he, witness, and the deceased had shot at the defendant first. Witness knows William Green, who had worked at deceased’s the spring before the killing, but did not remember hearing Green and the deceased talking at the house of the deceased when the latter was abusing the defendant; and witness positively denied that any conversation ever occurred between him and the deceased in which the latter proposed to give him five hundred dollars to kill the defendant, and to which the witness replied: “I’ll do it;' hand me your money.” Witness stated that no such talk ever passed between him and the deceased, nor was anything of' the kind ever mentioned by the deceased to him, the witness. The witness also denied that he ever told D. ISTewsom, Doctor McCord, or any one else, that the deceased fired the first shot, and never did anything after the defendant fired. Witness was not drinking the day of the killing, and the deceased was perfectly sober. Witness never drank himself, and never saw the deceased take a drink.</p> <p>T. P. Dowell, for the State, testified that he was sheriff of Wood county at the time George Moore was killed, and, the next day after the killing, he went to arrest the defendant. The defendant was gone from his home. Witness and his deputies searched the neighborhood for him, but failed to find him, though they looked for him several days and nights. Witness sent writs for the defendant in every adjacent county. About a year afterwards the defendant was arrested, and was delivered to witness at Quitman,- .the county seat of Wood county. With this testimony, and having proved the venue of the offense by the witnesses to the killing, the State rested.</p> <p>John Chaney was the first witness for the defense. He testified that, about a year before George Moore was killed, he, Moore, in the presence of the witness, let out to cursing the defendant. Witness told him not to abuse the defendant, but he said: “G—d d—n him, I intend to kill him.” He specified no time. He was so angry that witness said but little to him. Witness, the next day, mentioned this to the defendant, at the latter’s house. Defendant remarked: “I’ve got a big family, and am in a bad fix to be left,” and then went back in his house.</p> <p>On cross-examination, the witness stated that the defendant was the only person to whom he had ever told the threat of the deceased. Witness was on good terms with both the defendant and the deceased, but knew they were enemies to each other, and had been for a long time. Deceased said that the defendant had annoyed him so much about a yearling which ran at defendant’s place, that he, deceased, would put a stop to it. In reply to a direct question respecting his feelings toward the deceased, the witness said he “had nothing particular against him. He (the deceased) was mad at me. He had not spoken to me since that time up to his death. When I met him that time, I expected him to rail out at me.” Witness lived in about a mile and three-quarters of Moore, the deceased, when the latter was shot, but did not go to see him, nor attend his funeral.</p> <p>W. H. Adrain, for the defense, testified that, about six or seven months before the killing, he saw the deceased and the defendant meet in Mineóla, and heard the deceased abuse the defendant. Deceased cursed defendant for the lowest scrapings of the earth, and said, “ G—d d—n you, you are a d—n convict.” Defendant replied, “ I am not all to blame; why do you want to take it all out of me ?” Deceased replied, “ D—n you, shut your mouth.”</p> <p>R. M. Chaney, for the derfense, testified that he lived about a hundred and fifty yards from the road on which the deceased was killed, and by a diagram made by this witness it appears that it could have been but a few yards farther to the spot at which the killing occurred. When the homicide was done the witness was sitting on his door-step. He heard the wagons as they came up the road, and saw the deceased and Sam. McGehee in the foremost wagon. As they passed on a few steps the witness saw both of them shooting. He could not at that time see the defendant on account of the intervening undergrowth, but, just before he saw the wagons, he observed the defendant riding down a path toward the road. Witness did not see the defendant while the shooting was going onj nor after it ceased. He saw both the deceased and McGehee shoot, but neither saw nor heard the defendant shoot. He thought he saw some one fall, and he remarked to his wife that he believed they had killed Gilly. Witness was a good friend to both Gilly and the deceased, and thought as much of one as the other. The witness explained the diagram he had made, and stated th.e. distances between different localities spoken of in the testimony. About half an hour before the killing, the witness, while on his way home from a neighbor’s, met the defendant, who was coming along the main road from the direction of Mineóla. Defendant gave witness a drink of whisky out of a quart flask. Defendant was somewhat under the influence of whisky, but was not drunk. He and witness had some talk, in the course of which the defendant said that he left Moore, the deceased, in Mineóla. Defendant further said that he had heard that Moore had been threatening him, and that he had á lovely family which he hated to leave. He made no threats remembered by the witness. The only shots seen or heard by the witness were fired by the deceased and McGehee. Witness did not then go to where the shooting occurred, but got on his horse and went over to Ezell’s, who lived about two hundred yards distant, and close to the road. In a minute or so after the witness reached Ezell’s, McGehee came driving along the road within a few steps of him, and he saw Hugh Moore lying in the wagon. Moore was very bloody, but seemed to be still alive. Witness said nothing to McGehee or Moore, nor they to him. Ambrose George was about twenty-five yards behind them, and as he passed by the witness the latter asked him where Gilly was, and George replied that Gilly had gone on down the road. Nothing more passed between witness and George. Witness did not go to see Moore, nór did he attend the funeral. Witness worked under Gilly, making' ties. He saw no more of Gilly until the latter was arrested and brought back, in 1883.</p> <p>' W. H. Wilson, an employee of the defendant, testified that he heard the shooting when the deceased was killed. The first two reports were those of a large pistol; next came two reports of a shot gun; and the last four shots were those of a small pistol. On his cross-examination, this witness stated that he was expecting the shooting at the time it occurred, because the defendant had just passed up the road along which the deceased and his wngons were returning from Mineóla. The witness said he was as cf] ivudly to the deceased as to the defendant, but did not go to see the deceased nor attend his burial.</p> <p>D. A. Sutton, for the defense, testified that in the fall of 1880 hé heard the deceased curse and threaten the defendant in Henry’s store,- at Mineóla. Deceased called the defendant a G—d d—n son of a bitch, and the latter asked the deceased who else said so; to which the deceased replied, “Shut your G—d d—n mouth, or I will cut your guts out.”</p> <p>W. T.- Burleson, an employee of the defendant, testified that he heard the shooting when the deceased was killed. He was twenty-one years old, and was experienced in the reports of fire arms. The first two were the reports of large pistols. W. H. Wilson (a preceding witness) had just told the witness and the defendant’s son Tom that he was expecting a fuss between the defendant and the deceased, because the defendant hád gone toward Ezell's with his shot gun, and the deceased had passed along that way. The shooting commenced about the tim’e Wilson told this, and he exclaimed: “There now; I told you so.” Witness was a son of Mrs. Tuell, and lived at her house. Being asked if the defendant, after the shooting, got a horse, a gun, a pistol, or any money at Mrs. Tuell’s, the witness replied that he did not; but, being then asked if his mother, in his presence, did not give the defendant five dollars to leave on, he answered: “Oh yes! I forgot that; she did let him have some money.” Being asked which way the defendant went off, the witness said he went out the back way, in the direction of the Sa bine river bottom, toward which there was woods all the way, and no road. Witness was as good a friend to deceased as to defendant, but did not go to the farmer’s burial, nor did he inform the officers which way defendant had gone, when they were hunting him. Witness considered it none of his business.</p> <p>W. L. Brown, for the defense, testified that he was between a quarter and a half mile distant when the shooting occurred. The first and second reports were small guns; then came two large ones, and these were followed by some small ones.</p> <p>John Preston, for the defense, testified that in 1881, after Hugh Moore was killed, he met the State’s witness Sam. McGehee, and asked him to state the facts about the killing. McGehee said that he and Moore were going home from Mineóla in a wagon, and met the defendant in the road. That defendant had a shot gun, and the deceased ’ drew his pistol, and the first two shots were fired by deceased and him, McGehee. That defendant shot the deceased, and fired at him, McGehee, and he emptied his pistol at defendant as the latter rode off. . On cross-examination the witness stated that he informed defendant of this conversation with McGehee, and that he had stayed at defendant’s tie camp during this and two previous terms of court.</p> <p>W. D. Newsom, for the defense, testified that he was at deceased's house the night after the latter was killed, and helped to dress him. After the deceased was dressed, Doctor McCord, George Powers, witness, and the State’s witness McGehee went out to the well, and Doctor McCord asked McGehee to tell how the killing occurred. The latter stated that as he and the deceased were coming along the road in a wagon, the defendant rode ouc from behind, opposite their horses’ heads, with a double barreled shot gun presented and both barrels cocked. That the deceased hallooed at defendant not to shoot in the wagon, and jumped to get his pistol, which was buckled up in his saddle bags which were hanging on the front gate of the wagon; but that before deceased got his pistol the defendant shot him, and then fired the other barrel at him, McGehee, striking one of his fingers and perforating his hat. That deceased then succeeded in getting his pistol and fired two shots at the defendant, and, as the latter rode off, lie, McGehee, fired four or five shots at him. That, as deceased fired his second shot, his pistol dropped and he fell back on the bed in the wagon, and did nothing more .until he died. Witness then remarked to McGehee that the deceased was the worst shot man he ever saw, to do anything after he was shot; to which remark McGehee replied, “Why, man, he did not do anything.”</p> <p>Jeff.' Davis, for the defense, testified that the deceased, about six weeks before he was killed, asked him if he knew Mr. Gilly, and witness told him he did not. Then the deceased asked him if he wanted to go to Mineóla that day. Witness replied that he did, and the deceased said that he could go if he had the grit to shoot and would carry a pistol. Witness replied that he did not have the grit, and then the deceased said that as witness did not have the grit and did not know Mr. Gilly, he would have to get some of the other boys to go with him. Several days before this conversation the deceased told witness that there was a man in Wood county he intended to kill with his big ivory handled pistol, adding that he had lots of old rusty dollars to get him out of it, and that a man who had plenty of money was hard to beat at law: Witness thought he had not told the defendant about this prior to the killing.</p> <p>The cross-examination disclosed that the witness, at the time he referred to, was a county convict who had b’een hired to the deceased to work out a fine for stealing. Witness had often seen defendant before the conversation, and had seen him twice since his arrest. Witness did not tell defendant what he would swear, nor did defendant tell witness he wanted him for a witness. Witness had worked out his fine before the deceased was killed, and had been staying at the defendant’s camp during the pending term of the court.</p> <p>J. T. Davis, for the defense, testified that, when the deceased was killed, he. the witness, was hunting at a distance of about a hundred yards, and not only heard the shooting, but counted the reports. There were nine of them. The first two were big, loud reports, and were the reports of a large pistol; then there was a small pistol report, which was followed by the report of a shot gun. The rest were the reports of a small pistol. Witness was so experienced that he could distinguish between the report of a gun and that of a pistol, every time.</p> <p>On his cross-examination the witness stated that he had found and was watching an old fox squirrel when the shooting began, and he was not expecting the shooting. Nevertheless, he counted the shots, though they were fired pretty fast. He knew a pistol report from that of a gun, being very used to them. However, he could not tell the difference between the report of a Winchester rifle and that of a pistol; nor between the reports of thirty-two, thirty-eight, forty-two, forty-four and forty-eight calibre pistols. He never owned but one pistol, and that was a forty-one calibre, and of a make seldom seen in this country. That was the only pistol he was ever used to. 'Witness had been getting out ties on Mr. Gibson’s land. Being asked if he did not tell Mrs. Moore, the deceased’s widow, that Gibson had offered him a wagon and team to kill her husband, the witness replied' that he ha.d not, but had told her that he could swear that. Being asked if he had not told the same thing to Mrs. Moore’s brothers, the Ballard boys, he replied that he had told them that he could swear that Gibson had offered him a wagon and team to kill Moore. All he meant, however, was that any"body could swear a lie if he wanted to.</p> <p>R. M. Sharp, for the defense, testified that in the fall before Hugh Moore was killed he, the witness, saw Moore coming, in advance of defendant, toward Henry’s store, in Mineóla. As they came up near where witness was, the defendant said to Moore: “ Let us be friends.” Moore replied: “D—d your friendship; I don’t Want it,” and walked into Henry’s store. Defendant walked into the store at a different door. After a while they came out and met on the sidewalk, and Moore said, “G—d d—n you, I want you to let me alone.” and ran his hand in his pocket; and the defendant shrugged his shoulders and said, “ Sold again.” as though he thought Moore had the advantage of him. Since Moore’s death, the witness had had two conversations with the State's witness Ambrose George. In one of them George said that as Moore and Sam. McGehee were driving home from Mineóla in front of a wagon he was in, he saw the defendant ride into the road from behind a tree to the head of Moore's horse, with his gun cocked and presented, when Moore said, “Don’t shoot into the wagon;” and that the defendant immediately shot Moore, and then fired the otfier barrel of his gun at Sam. McGehee; that Moore then fired two shots out of his pistol at the defendant, and McGehee also fired several shots at defendant as the latter rode off. In the other conversation, George said he first saw the defendant riding down the road toward and in front of Moore’s wagon, with his gun cocked and ’presented, and that Moore did not say anything, but that the defendant immediately shot Moore and fired the other barrel at Sam. McGehee; that Moore then got his pistol and fired two shots at defendant, and Sam. McGehee fired several shots at defendant as the latter rode off.</p> <p>Tom Gilly, the defendant’s son, testified for the defense, that he heard the shooting when the killing occurred, and that he was experienced in the reports of fire arms, and could distinguish between them. The first two were the reports of large pistols; then there were two shots, one of which was a large and the other a small one; and then there were three small ones. The deceased, two days before he was killed, came to where witness was working in the woods, and asked him where the defendant was. Deceased was armed with a large six shooter. Witness replied that the defendant was at work some distance beyond his tie camp. Deceased said he wanted to settle with defendant. Witness told him that if he would go to defendant’s camp and wait, he, the witness, would go and bring the defendant ther,e.' Deceased replied, “ No, I’ll settle with him the next time I see him,” and then rode off. At noon of the same day witness told this to the defendant.</p> <p>On his cross-examination, this witness stated that he and W. T. Burleson,' a previous witness for the defense, were together when they heard the shooting, but denied that' W. H. Wilson was then with them or said anything to them, as testified by Burleson.</p> <p>William Green, for the defense, testified that in the spring before the deceased was killed, the latter and the witness had a conversation in the presence of Sam. and Bully McGehee. Witness told deceased that the defendant had requested him, the witness, to say to him that he. the defendant, wanted to be friendly with him, and wanted to stop their troubles and fusses. Deceased said: “Tell me no more; I don’t want his friendship; I had as soon kill him as a hog.” Witness then went down into the plum orchard, and was eating plums when the deceased and Sam. McGehee came as close to him as the width of the court room. They were talking about the defendant, and witness heard the deceased say he would never rest until he had got his revenge and killed the defendant. Sam. McGehee, laughingly, and deviling the deceased, said he had better let the defendant alone or the latter would kill him. Deceased replied that the defendant was not born to kill him, and that he, deceased, would give five hundred dollars to have the defendant killed. Sam., still laughing at and deviling the deceased, said, “You had better give me your five hundred dollars,” and the deceased remarked that anybody could get it who would kill the defendant. About this time Sam.’s brother Bully came up and told Sam. to hush up.</p> <p>On cross-examination, the witness stated that he left the deceased’s soon after the occurrences he had related, and was not living with deceased when he was killed; but that he, the witness, never had any special falling out with the deceased. Witness was staying at defendant’s camp during the pending term of the court. He did not remember who was the first person he informed of this talk of the deceased, nor when he first told defendant about it. He had known the defendant a long time, and had always been friendly with him.</p> <p>Ben. Gilly, thirteen years old, and a son of the defendant, testified that he and his little brother went with their father to Mineóla the day Hugh Moore was killed. In Mineóla the witness was left to watch the wagon, as the team consisted of two young mules. The wagon was stopped close to a blackjack, near Zuckerman’s store. While witness was there watching the wagon, the deceased, whom he knew well, came to the wagon, took the defendant’s gun, removed the caps, spit in the tubes, and said, “ There, G—d d—n him, we have got him now.” and then went off. Soon afterwards the defendant came to the wagon and started home. When they got about a mile from Mineóla witness told his father what the deceased had done. Defendant said nothing, but took his gun, picked powder into the tubes, and put fresh caps on them. When they got to Mrs. Tuell’s, where the road turns out toward defendant’s camp, Mr. W. H. Wilson took the wagon on to the camp, and the defendant got on the horse Wilson was riding, and took it to water either at Ezell’s or Tuell’s.</p> <p>G. E. Brown, for the defense, testified that about noon on the day of the killing he met the deceased at Zuckerman’s store in Mineóla. Deceased invited witness to go and take a drink, and they went to the saloon of witness’s brother, where witness took a drink of whisky and the deceased a drink of soda water. After they had taken their drinks the deceased told witness that the defendant had stolen a molasses or salt kettle from him, and he intended to kill defendant for it before night; and, showing-two boxes of cartridges to the witness, the deceased further said, 11 That is what I am going to fix him with.” Witness told deceased he ought not to tell him that; to which the deceased replied: “I know you; you won’t squeal.” Then they went back to Zuckerman’s store together, and witness went in to get some tobacco, and as he came out he saw deceased go to a wagon standing by a blackjack tree, some thirty or forty steps from the store, and there the deceased unrolled a quilt from around a shot gun, and took the caps off the gun, and said, “Now we have got him.” Witness did not know whose wagon it was. Witness was standing in front of Zuckerman’s store when he saw and heard what he had just related.</p> <p>On his cross-examination the witness was asked to repeat «the testimony he had just given in chief. In doing so the witness stated that it was while he and deceased were going to the saloon, and before they reached there, that the deceased said the defendant had stolen from him a molasses or salt kettle, and he intended to kill him before night; and, showing two boxes of cartridges, further said that was what he intended to do it with. After that they went in and got their drinks, and then the deceased went out "of the saloon. In a few minutes the witness started back to Zuckerman’s store to get some tobacco he had forgotten there, and as he got in front of the store he saw the deceased go to a wagon which was standing thirty or forty steps distant, near a blackjack tree, and take out a gun which was rolled up in a quilt. Witness then walked up near the deceased, and saw him take the caps off the gun, and heard him say, “ Now I have got him.” There was a little boy either in or near the wagon. The deceased, when he sa\v the witness, told him that was Gilly’s wagon and gun. Then the witness said to tile deceased, “You ought not to do and say in my presence what you have said and done,” and he replied: “ I know you will not squeal.” Witness saw everything done by the deceased at the wagon, and was positive that he did nothing to the gun exccqjt to take off the caps. Witness told nobody what the deceased had said and done on the occasion he spoke of until, after the arrest of the defendant, he went to the latter’s attorney and told him. He was the friend of both the deceased and the defendant. Being asked to make a diagram of the wagon, the tree, Zuckerman’s store, etc., he declined to do so, and was unable to place them when asked to do so. Witness was not following anything to make a living.</p> <p>Several witnesses for the defense testified that the general reputation of deceased was that of a quarrelsome and violent man. Some of them thought he was a dangerous man; the others thought he was not.</p> <p>In rebuttal of the testimony of B. M. Chaney, one of the defendant’s witnesses, the State introduced A..B. Grant, who testified that he was familiar with the locality spoken of by Chaney. At the time of the killing, Chaney’s home was a hundred and seventy-five yards from the road, from which a winding footpath led to the house through thick undergrowth. There was but one place in the road from which any part of Chaney’s house could be seen, and from that place only the top of the house was visible, bic one sitting in Chaney’s door could, have seen down to the road, by reason of the thick undergrowth. Since the killing the witness had ridden along there and tried to see the house, and it could not be done.</p> <p>Witness, on cross-examination, stated that he had never placed a man in the road where the killing was done, and looked from Chaney’s door to ascertain if the man could be seen from there; but witness was certain the door of the house could not be seen from the road.</p> <p>A new trial being refused, the defendant appealed.</p>

<p>1. Proof of Venue.—When no proof of the venue of the offense appears in the record, the judgment of conviction must be set aside.</p> <p>2. Dying Declarations are received in evidence from the necessity of the the case, for the purpose of identifying the prisoner and the deceased, establishing the circumstances of the res gestee, and proving the transactions which resulted in the homicide; but declarations relating to former and distinct transactions are not admissible.</p> <p>3. Same—Practice.—In a trial for murder, the dying declaration of the deceased, which had been reduced to writing, was objected to by the defense, because part of it related to matters which transpired before the difficulty between the deceased and the defendant began. The trial court excluded from the jury so much of the declaration as related to such antecedent matters, and admitted the remainder. Held, correct. Note the predicate held sufficient to warrant the action of the trial court.</p> <p>4. Judicial Knowledge of Municipal Corporations is not legally chargeable to the courts of this State, inasmuch as the general laws enable every city and any town of two hundred inhabitants to incorporate itself by complying with prescribed conditions, of which it would be unreasonable to charge the courts with judicial notice. See the opinion in extenso for elucidation of this ruling.</p> <p>5. Proof of Corporate Existence.—If a locality has been incorporated by legislative enactment, the primary evidence thereof is the original charter or ineorporative act, or an authenticated copy thereof. But when it is shown that such primary evidence is lost or cannot be had, secondary evidence is competent by proof of long continued user and reputation, or prescription. The sufficiency of such proof is ordinarily for the determination of the jury.</p> <p>G. Same.—If the corporation was created by virtue of the provisions of Chapter 11, Title 17 of the Revised Statutes of this State, a certified copy of the county judge’s entry on the record of the Commissioners’ Court would, it seems, be the primary evidence of the incorporation</p> <p>7. Proof of Official Character.—In a trial for murder, it was in proof that the deceased was killed by the defendant while the former was endeavoring to arrest the latter for unlawfully carrying a pistol, and the State proposed to prove that the deceased, when killed, was the marshal of the incorporated town in which the homicide occurred. Held, that, without showing the appointment and qualification of the deceased as the town marshal, his official character could be shown by proof that he was marshal de facto, and was recognized as such by the municipal authorities.</p> <p>‘8. Proof of the time of the Commission of the Offense.—Neither the State nor the defense is bound by the allegation in the indictment of the date of the offense; and, to warrant a conviction for an offense liable to be barred by limitation, the proof must show that the offense was committed at a rime which precludes the bar.</p> <p>9. Same—Statement op Facts—Practice.—Appellant was convicted of manslaughter, under an indictment for murder. The statement of facts discloses no proof either of the venue or the time of the offense. Note the animadversions of this court upon this condition of the record, and especially its suggestion that, in authenticating a statement of facts, the trial judge, when the evidence warrants it, shall certify that the time of the commission of the offense, the venue of the offense, and the identity of the prisoner were fully proved.</p>

<p>1. Assault—Pleading—Information.—Notwithstanding the general rule that an indictment or information, to be sufficient, must allege the acts ’ or omissions which constitute the offence, it is not necessary in charging an assault that the pleader should allege the particular acts of violence which constituted the assault. See the opinion for an information held sufficient to charge a simple assault.</p> <p>2. Same—Variance.—That the affidavit upon which the information was based was signed “William Hunt,” and charged that the defendant committed an assault upon “Wm. Hunt,” and that the information charged the assault to have been committed upon “Wm." instead of “William ” Hunt, was not a variance fatal to the prosecution.</p> <p>3. Practice—Pleading—Limitation.—In the absence of any law prescribing the time within which an information may be filed after complaint made, it is held that the information may be tiled at any time before the offense is barred by limitation, although the complaint may have been tiled long before the time of presenting the information.</p>

<p>Appeal from the District Court of Webb. Tried below before the Hon. J. C. Russell.</p> <p>This appeal is prosecuted by Justo Guerro and Florencio Guerro from a final judgment entered against them as the sureties of Jesus Galindo, bailed upon an indictment charging him, the said Galindo, with the theft of amare. The amount of the bond and judgment was five hundred dollars. The opinion otherwise discloses the case.</p>

<p>Appeal from the County Court of Washington. Tried below before Hon. C. R. Breedlove, County Judge.</p> <p>The conviction in this case was for tlie keeping of a disorderly house in the city of Brenham, the said house being kept fo .• the purpose of public prostitution. A fine of one hundred dollars was the penalty imposed.</p> <p>In substance the testimony of the witness for the prosecution was that the house occupied by Lottie Walton, and known as a house of prostitution, was generally reputed to be the property of the defendant. None of’ the witnesses knew of their own knowledge who kept the house. Several of the witnesses had frequently seen the defendant at the house, and one witness had understood that he had slept at the house.</p> <p>For the defense, Lottie Walton testified that she rented the house from the defendant, paid him the rent, and did not consider that he had anything whatever to do with its management.</p> <p>The motion for new trial raised the questions discussed in the opinion, and denounced the verdict as contrary to the law and the evidence.</p>

Tried below before the Hon. T. M. Paschal. The appeal in this case is prosecuted from an order in chambers issued by the Hon. T. M. Paschal, judge of the twenty-fourth judicial district, denying bail to the appellant, who was held in custody by the sheriff of Medina county upon a charge of rape. Bail was refused in this case upon the testimony of Sallie Bartlett, the step-daughter of the accused, and the alleged injured party.

Tried below before the Hon. J. C. Russell. The indictment in this case charged the murder of Estefano Dios, alias Estefano Demás, on the twenty-sixth day of May, 1883, in Duval county, Texas. The indictment was joint against this defendant and one Refugio -. The separate trial of the defendant resulted in his conviction of murder in the first degree, and his punishment was affixed at death. Pablo Longoria was the first witness for the State.

Tried below before the Hon. J. C. Russell. The indictment charged the appellant with the murder, in Webb county, Texas, on the third day of May, 1879, of Guadalupe Trevino and one Antonio. The conviction was for murder in the first degree, with the death penalty awarded. The transcript brings up no statement of facts.

Tried below before the Hon. J. D. Terry, County Judge. The information charged the appellant and George Ruston, jointly, with the theft of property under the value of twenty dollars. A severance being had, the appellant was alone placed' upon trial, convicted, and his punishment affixed at confinement in the county jail for thirty days and a fine of fifty dollars.

Tried below before the Hon. I. B. McFarland. For the killing of Robert F. Tamplin, in Washington county, on the eleventh day of May, 1883, the appellant was convicted of murder in the second degree, and was awarded a term of ten years in the penitentiary as punishment.

Tried below before the Hon. B. W. Rimes. The conviction in this case was had upon an indictment charging the appellant with the theft of a horse, the property of Mrs. Louisa Tumbo. The offense was alleged to have been committed on the fifth day of August, 1883, and the venue was laid in Bell county. The punishment awarded by the j ury was a term of five year's in the penitentiary. Isaac Williams was the first witness for the State.

Tried below before the Hon. Jo. Abbott, . The conviction in this case was for the theft of six head of cattle, the property of Forbis and Gambrell. The indictment charged the offense to have been committed on the twentieth day of August, 1883,. and laid the venue in Johnson county. . The preliminary statement of the facts in- the case, as it appears in the opinion, was taken from the testimony of L. B. Forbis, the first witness for the State.

<p>Carrying Pistol—Evidence.—See the opinion in extenso for facts held insufficient to establish the carrying of deadly weapons, as that offense is defined by statute.</p>

<p>1. Practice—Continuance—Bill op Exceptions—Unless excepted to below, and the matter is brought to this court by proper bill of exceptions, the action of the trial court in refusing an application for continuance will not be revised. A specific bill of exceptions is not supplied by a recital in the judgment that the application was refused and the defendant excepted.</p> <p>2. Same—Rule 55a for the District Courts provides that the rulings of the court upon applications for continuance, or for change of the venue, and other incidental motions, and upon admission and rejection of evidence, and upon other proceedings in the case not embraced in Rulés 53 and 55, when sought to be complained of as erroneous, must be presented in a bill of exceptions signed by the judge and filed by the clerk, or otherwise made according to statute, and they will thereby become a part of the record of. the cause, and not otherwise.</p> <p>3. Theft—Possession of Recently Stolen Property.—If the evidence in a trial for theft fails to connect the defendant with the taking of the stolen property otherwise than by recent possession,' this recent, possession may be accounted for by proof of purchase, whether in good or bad faith, and defendant may in law urge the purchase, notwithstanding he had full knowledge that the seller had stolen the property.</p> <p>4. Same—Charge of the Court.—Defense to a prosecution for theft was purchase, upon which phase of the ease the court charged, in substance, that the purchase would not entitle defendant to an acquittal, unless such purchase endowed him with an honest and bona fide claim to the property. Held, error, inasmuch as it authorizes a conviction for theft without a showing of defendant’s complicity in the fraudulent taking of the property.</p> <p>5. S one—Receiving Stolen Property.—That the defendant, subsequent to the theft of the property, and with knowledge that it was stolen, aided the taker to dispose of it or purchased it from the thief, are facts sufficient to support a conviction for receiving stolen property, knowing it to be stolen, but not to support a conviction for theft.</p> <p>6. Practice—Evidence—Bill of Sale.—Should the evidence, in such a ease as this, tend to show an acting together, conspiracy or complicity in the taking between a vendor in a bill of sale and the purchaser on trial for the theft, it would become the duty of the court to submit the bona fides of the bill of sale, that the jury might ascertain whether or not it was a sham or device to cover up and avoid the crime of theft.</p>

Tried below before the Hon. R. Maltbie. The indictment charged the appellant with the murder of Dick Watson,vby striking him with an ax, The offense was alleged to have been committed on the seventh day of November, 1875, and the venue was laid in Grayson county. The conviction vzas for murder in the second degree, and the punishment awarded was a term of twenty years in the penitentiary.

Tried below before the Hon. J. D. Terry, County Judge. The appellant was convicted of theft of property under the value of twenty dollars, and his punishment was affixed at confinement in the county jail for six months and a fine of twenty-five dollars. The opinion discloses the only question involved in the ruling.

■ Appeal from the County Court of Webb. Tried below before the Hon. J. M. Rodriguez, County Judge. The indictment in this case was joint against the appellant and Lydia Huberick, charging that the appellant, an unmarried male, and the said Lydia, a married female, committed the crime of adultery together, in the county of Webb. A severance was had, and the said Lydia was first placed upon trial.

Tried below before the Hon. G. M. Aldredge. The indictment charged the appellant with the theft of a heifer, the property of James Farrar, in Ellis county, Texas, on the first day of August, 1882. The punishment imposed by a verdict of guilty was a term of four years in the penitentiary. The opinion of the court sets up the evidence in sufficient detail.

Tried below before the Hon. L. W. Moore. This appeal is prosecuted from a conviction for the theft of two oxen, the property of D. L. Hateo, wherein the punishment awarded was a term of three years in the penitentiary. The opinion discloses the substance of the entire evidence. The motion for new trial presented the questions discussed in the opinion, and complained of the action of the court in refusing special charges asked.

Tried below before the Hon. I. B. McFarland. The indictment charged the appellant with the murder of Bob Williams, shown by the evidence to have been her husband, in Washington county, Texas, on January 18, 1883. The jury, upon her trial, found her guilty of murder in the first degree, and assessed her punishment at confinement in the penitentiary for che term of her natural life. The parties were-negroes.

Tried below before the Hon. W. A. Blackburn. The indictment in this case was joint against the appellant and one Hill, and charged the theft of one head of cattle, the property of A. Crumb. A severance being had, Hill was first tried and convicted.

<p>Appeals from the District Court of De Witt. Tried below before the Hon. H. C. Pleasants.'</p> <p>The appeals in these cases were prosecuted from the forfeiture of appearance bonds in two cases of John Hester and one case of Willis Arrington, each bailed upon the charge of the theft of cattle. The amount of the bond and judgment in each case was two hundred and fifty dollars.</p>

Tried below before the Hon. L. W. Moore. The indictment charged the robbery of Rudolph Schlosser of thirty-nine dollars and a half in money, two pistols and a dozen boxes of sardines. The venue was laid in Austin county, Texas, and the offense was alleged to have been committed on the eleventh day of August, 1881. Upon his conviction, the defendant was awarded a term of five years in the penitentiary.

■ Appeal from the District Court of McLennan. Tried below before the Hon. B. W. Rimes. This conviction was for swindling. The indictment alleged, in substance, that the defendant obtained from C. H. Jones, upon a draft drawn by himself against Steele & Price, Chicago, 111., the sum of fifty dollars, by means of false representations, to wit: that he, the defendant, was the authorized advertising agent of Steele & Price, and that Geo.

W. H. Burkhart., The indictment in this case charged the appellant with the theft of a cow, the property of one William LaBauve, in Jackson county, on the twelfth day of February, 1883. The penalty affixed, by a verdict of guilty, was a term of three years in the penitentiary. Henry Chinn, a colored man, was the first witness for the State.

Tried below before the Hon. L. D. Bradley. The indictment in this case charged the appellant with an assault with intent to murder one Ward Majors, on the fifteenth day of February, 1883. Two years in the penitentiary was the punishment awarded by a verdict of guilty. George Pruitt was the first witness who testified for the State. His narrative was to the effect that Henry Blandford, a negro man whom witness had employed to sow oats, employed the defendant to assist him.

Tried below before the Hon. W. E. Burkhart. The indictment in this case charged the murder of Henry Roberson, in Brazoria county, on the fifth day of September, 1883. The trial of appellant thereupon resulted in his conviction of murder in the first degree, with the death penalty assessed. John Barlow was the State’s first witness.

Tried below before the Hon. W. S. Stewart, County Judge. The case is sufficiently stated in the opinion. At a subsequent page will be found the report of this case on the hearing upon the merits.

Habeas Corpus on appeal from a judgment In chambers rendered by the Hon. T. L. Nugent, judge of the thirtieth judicial district, refusing the applicants bail. The relators were held under a mittimus issued by a justice of the peace of Erath county, presiding at their examining trial upon the charge of the murder of Frank Trout.

Tried below before the Hon. W. S. Stewart, County Judge. The information charged that by means of false pretenses the appellant obtained a pair of pantaloons and a shirt, of the aggregate value of five dollars and a quarter, and the property of George Burkhart. The result of the trial was the conviction of the appellant, whose punishment was assessed at a fine of five dollars, and confinement in the county jail for twenty-four hours.

Tried below before the Hon. E. Lewis. The indictment charged the appellant with an assault with intent to murder one. Albert Maulding, on the first day of May, 1883, in the county of Lavaca. A verdict of guilty assessed his punishment at a term of two years in the penitentiary. Albert Maulding was the first witness for the State.

. Appeal from the District Court of Dallas. Tried below before the Hon. G. N, Aldredge. This is an appeal from a conviction for the theft of two horses, the property of L. B. Miller, in Dallas county, Texas, on January 25, 1881. A term of eight “years in the penitentiary was the penalty imposed by the verdict of guilty. L. B. Miller was the first witness for the State.

Tried below before the Hon. A. J. Hood. The indictment was for the burglary of a caboose of the Texas and Pacific railroad, and the theft therefrom of a watch and chain, the property of Bunk Ramsay. The penalty imposed by a verdict of guilty was a term of two years in the penitentiary. Bunk Ramsay was the first witness for the State. He testified, in substance, that he was a conductor on a freight train of the Texas and Pacific railway in April, 1883.

Tried below before the Hon.' A. J. Hood. The appellant in this case was convicted of the theft of a watch chain of the value of seventy dollars, the property of one Ramsay. The punishment assessed against him was a term of three years in the penitentiary. The opinion recites the substance of the evidence. The same evidence is reported in detail .in the case of Buntain v. The State, ante, page 485, which involves, under another indictment, the same transaction.

Tried below before the Hon. J. it. Kennard. The indictment in this case charged the murder of John A. Christmas, in the county of Madison, on the eleventh day of December, 1880. The jury found appellant guilty of murder in the second degree, and assessed his punishment at a term of five years in the penitentiary. B, Mahorner was the first witness for the State.

Tried below before the Hon. H, C. Tompkins, County Judge. The information in this case charged the theft of personal property under the value of twenty dollars, the property of one J. H. Munn. The penalty imposed was one day in jail and a fine of one hundred dollars. The testimony for the prosecution was, in substance, that the prosecuting witness had two men breaking ground for him, using implements which he furnished.

Tried below before the Hon. Gustave Cook. The indictment in this case charged that Henry Campbell, the appellant, on March 17, 1883, in the county of Harris, did, of his express malice aforethought, kill and murder Richard Snow, by shooting him with a pistol. The jury found the appellant guilty of murder in the first degree, and assessed his punishment at death. Austin Johnson was the first witness for the State.

Tried below before the Hon. A. J. Hood. The conviction was for swindling, and the penalty imposed was a term of two years in the penitentiary. T. F. Hash was the first witness for the State. He testified, in substance, that in the year 1882 he became security on the bail bond of the defendant, who was then charged with an assault. Defendant subsequently forfeited his bond, and witness got Charley Scott to go after him.

Tried below before the Hon. H. C. Pleasants The conviction was for the alteration of brands on certain cattle, and the punishment assessed was a term of three years in the penitentiary. The opinion discloses every material feature of the evidence. The motion for new trial presented the questions involved in the opinion, and assailed the charge of the court.

Tried below before the Hon. W. H. Burkhart. The judgment appealed from was for the sum of three hundred dollars, which was the amount of bail required of the principal obligor, whose sureties were the appellants. The opinion states the case.

Tried below before the Hon. J. C. Townes. The conviction was for the murder of J. E. Edwards, in Llano-county, on July 14, 1882. A term of five years in the penitentiary was the punishment inflicted by the jury. Tom Williams, the first witness for the State, testified in substance that the deceased passed the night of July 13, 1882, with him, at his house, about three miles from the residence of H. J„ Reynolds, in Llano county.

Tried below before the Hon. Everett Lewis. The indictment charged that the appellant, on July 7, 1883, wilfully, unlawfully, fraudulently and feloniously, did take, steal and carry away from the possession of M. and M. Murphy a cow which was the property of said M. and M. Murphy. The-jury found him guilty, and assessed his punishment at a term of two years in the penitentiary. The material facts are stated in the opinion of this court.

Tried below before the Hon. J. S. Conway, County Judge. The conviction was on an indictment which charged the sale-of medicated bitters without license. The penalty imposed was. a fine of three hundred dollars. The testimony showed the sale of an article known as Carolina, Tulu Tonic, which, the purchaser testified, tasted like whisky* rock candy and cinnamon bark, and which had the effect of intoxicating him.

Tried below before the Hon. J. S. Conway, County Judge. The conviction was for playing cards in a public place, and the punishment imposed was a fine o£ ten dollars. The fact that the defendant played a game of cards in the up stair apartment of an unoccupied store house was in no wise disputed on the trial. There was, however, no proof of the public character of the house, and it was positively proved that no liquor had been sold in the building- for over two months.

Tried below before the Hon. A. J. Hood. The conviction was for swindling in the manner stated in the opinion, and the penalty imposed was a term of two years in thes penitentiary. The opinion also briefly but fully summarizes the evidence upon which the conviction was had. The motion for new trial raises the questions involved in the opinion.

Tried below before the Hon. E. Lewis. The indictment charged the theft of a yearling, the property of Richard Dismukes, in Gonzales county, on the first day of August, 1876. The trial resulted in conviction, and the punishment assessed was a term of two years in the penitentiary. hT. T. Davis was the first witness for the State. He testified that in 1876 the defendant lived with his step-father, near witness's place in Gonzales county.

Tried below before the Hon. Everett Lewis. The indictment charged that on the first day of March, 1882, the appellant fraudulently took, stole and carried away from the possession of J. C. Stewart twelve head of sheep, of the value of four dollars each, the property of said J. C. Stewart. The case was tried in January, 1884, and the jury found the defendant guilty as charged in the indictment, and assessed his punishment at a term of four years in the penitentiary.

Tried below before the Hon. W. E. Collard. The perjury assigned arose upon the testimony of the appellant as a witness before the grand jury of Robertson county, at the January term, 1884, of the district court; in which testimony he falsely stated that he had never been in the back room of a ■certain saloon and house for retailing spirituous liquors; that he never carried drinks into said back room from said saloon; and had never seen persons playing or exhibiting monte…

Tried below before the Hon, A. S. Walker. The indictment charged that the appellant, on April 21, 1882, in the county of Travis, did unlawfully and fraudulently take, steal and carry away from the possession of Stephen Harrison, two horses, worth forty dollars each, the property of said Harrison, etc. The case came to trial in November, 1883, and the jury returned a verdict finding the appellant guilty of receiving stolen property knowing it to have been stolen, and assessed…

Tried below before the Hon. L. W. Moore. Appellant was, on the nineteenth day of October, A. D. 1883, in the District Court of Bastrop county, indicted for the theft of a horse, alleged to have been taken from the possession of one William Pollard, in Williamson county, Texas, on the fifteenth day of September, 1883. The penalty assessed by the jury was a term of five years in the penitentiary. William Pollard was the first witness for the State.

Tried below-before the Hon. Everett Lewis. ■ ' The indictment charged that Philip Davis and A. J. Clark, on February 10,1883, willfully, unlawfully and feloniously did burn a certain house, the property of H. Smith, without the consent ■of said Smith. The appellant was tried at the January term, 1884, and, being found guilty, his punishment was assessed at •a term of twenty years in the penitentiary. The opinion of this court discloses all material facts.

Tried below before the Hon. F. J. McCord. The indictment in this case charged the appellant with the theft, in Smith county, Texas, on the sixteenth day of November, 1881, of two bales of.cotton, the property of C. M. Bachelor. A verdict of guilty assessed his punishment at confinement in the penitentiary for five years. Oscar Kennedy was the first witness for the state.

Tried below before-the Hon. F. J. McCord. This appeal is from a conviction of theft of a ten dollar bill,, the property of A. J. Florence, from the person of the owner, on October 17, 1883. A term of five years in the penitentiary was. the penalty assessed against the appellant. A. J. Florence, the owner of the stolen money, testifying for-the State, said that the first time he ever met defendant was on the morning of October 17, 1883.

Gustave Cook. A fine of twenty dollars was the penalty adjudged against appellant for selling liquor on Sunday, the third of February,. 1884. The opinion discloses all necessary facts.

Tried below before the Hon. Gustave Cook. The conviction was for an assault with intent to kill one Dennis J. May. The punishment imposed was a term of three years in the penitentiary. The opinion sets out the testimony of May and Kemp. Save that of the physician who testified as' to the nature of the wounds, the testimony of the witness Flynn was the only additional testimony adduced on the trial.

John Alexander, County Judge. The information charged the appellant with the theft of two hundred pounds of seed cotton, the property of Henry Hodges. The venue was laid in Burleson county, and the offense was alleged to have been committed on the seventeenth day of‘August, 1882. A verdict of guilty was returned against him, and. his punishment was assessed at a fine of ten dollars and confinement in the county jail for a period of twenty-four hours.

Tried below before the Hon. B. W. Rimes, County Judge. The indictment in this case was joint against this appellant, Henry Harris, Ike Austin and George Simons, and charged that they did, on the first of June, 1883, in the county of McLennan, murder one Gabe Austin, by tying a rope around the neck of him, the said Gabe Austin, and dragging him until, by dislocation of the neck, the said Gabe Austin did die.

Tried below before the Hon. R. E. Burke, County Judge. The appeal in this case was from a conviction for selling beer and whisky on Sunday, June 7, 1879. The punishment assessed was a fine of twenty dollars. The opinion of this court discloses all facts relevant to the rulings.

Tried below before the Hon. L. W. Aloorc. By indictment, filed in the District court of Fayette County, on November 17, 1879, the appellant was charged with the murder of William Finkelstien, on the twenty-first day of October, 1879, by striking him on the head with a shovel. The conviction was for murder in the first degree, and the punishment awarded by the jury was confinement in the penitentiary for the term of his natural life. The trial was had in November, 1882.