Volume 16 — Texas Court of Appeals Reports

Tried below before the Hon. G. N. Aldredge. The offense attempted to be charged against the appellant was the fraudulent disposition of mortgaged property, the count against him in the indictment being in substance that, having on the third day of June, 1882, executed to one J. E. Wilson a valid mortgage lien in writing “upon eighteen acres of cotton, then and there being movable property,” he subsequently, on the first day of October, 1882, sold the said cotton to divers…

Tried below before the Hon. S. D. Steedman, County Judge. The appellant was convicted in the county court of Grayson county, Texas, under an indictment charging in substance in the first count that defendant committed an aggravated assault and battery upon the person of Jennie Hall, a female, the de- ■ fendant then and there being an adult male person; the second count charging in substance that the defendant was a person of robust health and strength, and the said Jennie…

Tried below before the Hon. E. Maltbie. The indictment charged the appellant with the theft of a mare, the property of Allen Kelly, in Collin county, on the twelfth day of November, 1883. His trial resulted in a verdict of guilty, and his punishment was assessed at confinement in the penitentiary for the term of five years. Sam Eeynolds was the first witness for the State.

Tried below before the Hon. Everett Lewis. The conviction in this case was for the theft, in Gonzales county, Texas, on the fifteenth day of January, 1883, of one head of neat cattle, the property of A. S. Billings. A term of three years in the penitentiary was the penalty assessed by the jury. A. S. Billings was the first witness for the State. He testified that he recovered his yearling in June, 1883. Witness had last seen the animal in January previous.

Tried below before. the Hon. G. U, Aldredge. The conviction was for the theft of a horse, the property of Clark Kendall, in Dallas county, on the third day of May, 1881. The penalty imposed by a verdict of guilty was a term of five years in the penitentiary. Clark Kendall was the first witness for the State. He testified that in April and May, 1881, he was the owner of a certain bay mare, branded 12 on the left shoulder, which was his brand.

Tried below before the Hon, T. C. Goodner, County Judge, The appeal in this case was from the final .judgment upon the forfeiture of the appearance bond of Joseph Short, bailed in the sum of seven hundred and fifty dollars upon the,charge of wilfully and maliciously burning a public bridge over East Fork creek, in said Collin county. The opinions disclose the questions which arose upon the trial in the trial court and this court. -

.. Appeal from the.County Court of Ellis,-. Tried below before the Hon, Q, B. Dunlap,. County Judge» The-conviction-was for an aggravated assault upon one Payette Miller, with. a. gun,, The offense was-.alleged to have been committed in Ellis county on- the fifteenth day of January, 1883. A finé-of fiftydollars was the penalty imposed. ■•- - .

Tried below before the Hon. T. C. Goodner, County Judge. The conviction was for the violation of the “Local Option” law. A fine of twenty-five dollars was assessed as punishment.

Tried below before the Hon. H. C. Pleasants. The indictment charged that the appellant, in the county of Karnes, on the third day of January, 1882, purchased three head of cattle from Emil Zuehl, without taking a bill of sale for the same. The trial resulted in the appellant’s conviction, and his punishment was assessed at a fine of twenty dollars per head for three head of cattle so purchased.

Tried below before the Hon. E. Maltbie. The conviction was for the theft of three horses, the property of one Fred Brown. They were taken, according to the indictment, in the Creek Nation, in the Indian Territory, on the thirtieth day of July, 1883, and on the next day were brought into the county of Grayson, in the State of Texas. The indictment further alleged that, under the laws of the Creek Nation, then in force, the acts charged constituted the offense of horse theft.

Tried below before the Hon. R. R. Gaines. The conviction in this case, whereby the appellant was awarded the death penalty, was predicated upon an indictment which charged him with the rape of Lou Williams, an inmate of the Lamar county poor farm, in Lamar county, Texas, on or about the twenty-first day of October, 1883. Mary Curtis was the first witness introduced by the State. She testified that she knew the defendant, and pointed him out in court.

Tried below before the Hon. Gr. B. Pickett, County Judge. The opinion discloses the nature of the case. A fine of ten dollars was the penalty imposed.

Tried below before the Hon. W. P. H. Douglass, County Judge. The conviction in this case was for the obstruction of a public road known as the Prairie Lea and New Braunfels road. It was based upon the same information and upon the same evidence as those upon which a former conviction was had, which was reversed and remanded by this court at its last Austin term. (See 14 Texas Ct. App., 67.) The penalt3r imposed in this case was a fine of one dollar.

Tried below before the Hon. I. B. McFarland. The indictment charged, and the jury found the appellant guilty of the theft of two head of cattle, the property of Elisha Davis. A term of two years in the penitentiary was the punishment assessed.

Tried below before the Hon. D. P. Marr. The conviction in this case, under which a fine of ten dollars was levied as punishment, was predicated upon an indictment which charged the defendant with betting at a monte bank. The transcript brings up no statement of facts. The ground relied upon by the appellant in his motion for new trial was that the court erred in overruling his plea to the jurisdiction of the court.

Tried below before the Hon. G-. H. Noonan, This appeal was prosecuted from the forfeiture of the appearance bond of Rainey Fentress, bailed in the sum of five hundred dollars, upon an indictment charging him with the theft of a horse. The judgment was for the amount of the bond. The bond which was a subject matter of controversy reads as follows: “The State of Texas, ) “ County of Caldwell.

Tried below before the Hon. G. H. Noonan. The indictment charged the appellant with the murder of one Venturo del Toro, in Bexar county, on the sixteenth day of April, 1880. The trial of the appellant resulted in his conviction of murder in the first degree, and the penalty of death was awarded him. Ysidoro Rosas was the first witness for the State. He testified that he was present when the defendant killed Venturo del Toro in the spring of 1880.

Tried below before the Hon. G. H. Noonan. The indictment charged the appellant with the theft of twenty-four and a half dollars, the property of S. J. Harland, in Bexar county, Texas, on the twelfth day of August, 1883. Upon trial the appellant was convicted, and was awarded a term of two years in the penitentiary as punishment. S. J. Harland was the first witness for the State.

Tried below before the Hon. L. W. Moore. The indictment charged that the appellant did, in the county of Blanco, State of Texas, on the eighth day of August, 1879, of his own express malice aforethought, kill and murder one Nathan Wurmser, by striking the said Nathan Wurmser certain mortal blows on the head, with a deadly weapon, the name or character of which was to the grand jurors unknown.

Tried below before the Hon. G. J. Clark, The offense attempted to be charged by the indictment in this case was the robbery, by the appellant, in Rains county, on the twenty-sixth day of October, 1883, of Henry Ivy, by assault and violence, and putting in fear of life and bodily injury. The conviction of the appellant was supplemented by a term of two years in the penitentiary, as punishment. Henry Ivy was the first witness for the State.

Tried below before the Hon. G. H. Eoonan. The indictment charged the appellant with theft of a saddle, bridle and saddle blanket, of the aggregate value of thirty dollars, the property of Juan Montez, in Bexar county, Texas, on the eighth day of December, 1883. A verdict of guilty was re turned against the appellant, and his punishment was assessed at a term of two years in the penitentiary. Juan Montez was the first witness introduced by the State.

Tried below before the Hon. Lee Rogan, County Judge. The information charged the appellant with an aggravated assault upon G. W. Loekard, in Caldwell county, Texas, on the eighteenth day of July, 1883. The ground of aggravation was alleged to be the use of a deadly weapon, to wit, an ax. The appellant’s trial resulted in his conviction, and his punishment was assessed at a fine of thirty-five dollars. The motion for new trial set up the ground considered in the opinion.

Trieu below before the Hon. A. S. Walker. The indictment charged the appellant with the robbery of the Reverend R. K. Smoot, in Travis county, Texas, on the twenty-fifth day of July, 1883. The means alleged was an assault with a pistol, whereby the said R. K. Smoot was put in fear of bodily harm. The appellant’s trial resulted in his conviction, and his punishment was assessed at a term of five years in the penitentiary.

Tried below before the Hon. G-. J. Clark. The appellant was charged by indictment with the theft of twenty-five dollars in money, and a pocket knife, the property of J. W. McKnight, in Rains county, Texas, on the seventeenth day of March, 1884. The trial resulted in a verdict of guilty, and a term of two years in the penitentiary was the punishment awarded. J. W. McKnight was the first witness introduced by the State. He testified that he lived in Quitman, Wood county, Texas.

Tried below before the Hon. B. K. Taylor, County Judge. The opinion states the case. A fine of fifty dollars and confinement in the county jail for a term of ten days constituted the punishment awarded by a verdict of guilty. The record brings up no statement of facts.

Tried below before the Hon. Joseph Spence, junior, County'Judge. A fine of twenty-five dollars was assessed against the’appel- • lant, upon his conviction for an assault and battery upon one Ollie Clayton. The information alleged that the offense was committed on the thirtieth day of June, 1883, in Tom Green county, Texas. Ollie Clayton was the first witness for the State.

Tried below before the Hon. L. H. Brewer, County Judge. The opinion sets out the charging part of the indictment. A fine of one hundred and twenty-five dollars was the penalty imposed by a verdict of guilty. The errors complained of in the motion for new trial, were that the court gave a verbal charge, and failed to give a written charge.

Tried below before the Hon. J. W. Pierson, County Judge. The opinion discloses the nature of the case. A fine of one hundred dollars was the penalty assessed against the appellant by a verdict of guilty. ......

W. H. Cliett, County Judge. The prosecution and conviction in this case were based .upon an information charging the appellants with the violation of Article 694 of the Penal Code, in that they permitted a certain herd of their sheep, affected with scab, to run at large, in charge of a herder, upon land not their own. The appellants were fined one cent and costs.

Tried below before ■ the Hon. T. M. Jones, County Judge. j The opinion discloses the substance of the indictment. A fine of twenty-five dollars was the punishment imposed by a verdict of guilty. The sufficiency of the indictment to charge the offense was 1 the question relied on at the trial.

Tried below before the Hon. W. A. Blackburn. The indictment in this case charged that the appellant illegally marked and branded a certain yearling of the neat cattle kind, the property of some person to the grand jury unknown, in the county of Comanche, State of Texas, on the fifteenth day of April, 1881, He was convicted, and his punishment affixed at a term of two years in the penitentiary. Thomas J. Hanson was the first witness introduced by the State.

Tried below before the Hon. J. C. Townes, The conviction of the appellant was for the wilful killing of a horse, the property of one J. A. Swanson. The first head note of this report relates to the sufficiency of the complaint.

<p>1. Evidence—Confessions.—It is provided by the statute, Article 749, of the Code of Criminal Procedure, that “the confession of a defendant may used in evidence against him if it appear that the same was freely made, without compulsion or persuasion, under the rules hereafter prescribed.” The defendant in this case being neither in confinement nor under arrest when he made the confession, none of the rules prescribed by the succeeding Article apply in this ease, and the admissibility of the confession depends on the common law.</p> <p>g. Same.—In the absence of statutory provisions regulating confessions, other than such as are made when the defendant is in confinement or custody, the common law rule on the subject controls. That rule is as follows: “ The confession (to be admissible in evidence) must be voluntary, not obtained by improper influence, nor drawn from the prisoner by means of threat or promise; for, however slight the threat or promise may have been, a confession so obtained cannot be received in evidence, on account of the uncertainty and doubt whether it was not made rather from a motive of fear, or of interest, than from a sense of guilt." The essence of the rule is that, to qualify the confession as evidence, it must have been voluntarily made, without the appliances of hope or fear by any other person.</p> <p>3. Same—Case Stated.—The prosecuting witness was permitted, over the defendant’s objections, to testify that he told the defendant that he had consulted with the prosecuting attorney, and was authorized to say to the defendant that if he would turn State’s evidence and testify against' his co-defendant he would not he prosecuted, and that he, the witness, in his own behalf, promised the defendant that he would make no complaint against him if he would turn State’s evidence and testify. Under these circumstances the purported confession was testified to have been made to the prosecuting witness by the defendant, and the prosecuting witness was permitted, over defendant’s objection; to repeat the confession to the jury. The trial judge explained that his reason for admitting the confession was that, after having made the agreement to turn State’s evidence and testify, the defendant not only repudiated the agreement and refused to testify, hut denied having told the prosecuting witness any thing. Held, that the court erred in admitting the confession; that the subsequent repudiation of the confession by defendant can in no way ' affect the circumstances under which it was made, and the true question was whether or not the defendant was improperly induced, by hope or fear, to make the confession to the prosecuting witness. If so, no subsequent act of bad faith on the part of the defendant could render valid that which per se was illegal as a voluntary confession. See the opinion on the subject.</p> <p>4. Theet—Evidence—Fact Case.—See statement of the ease for evidence, in a theft case, held insufficient to establish the complicity of the accused in the taking.</p>

<p>1. Libel—Pleading—Indictment.—It is permissible in some eases, where the offense charged is predicated apon an instrument in writing, to set forth the substance and effect, or purpose of the instrument, without declaring upon it by its tenor or in hmc verba, as, for instance, in perjury. But, as a general rule, whenever an instrument in writing enters into an offense as a part or basis thereof, or where its proper construction is material, the instrument itself,' Timo verba,.should' he set out in the indictment. The offense of libel is included in the latter class of'cases, and an’ indictment for that’offense, to be sufficient, must profess;-upon its face, to set forth an accurate-copy of the alleged libel in words - and figures;, otherwise, it is bad on-motion to quash, or. in-arrest of judgment. See the opinion in extenso on.the subject.</p> <p>2. Same—Case Stated.—After alleging the writing and circulation of the instrument; the indictment avers that the said statement so made was then and there a-Iibel; etc., and,- “in substance,- words and-figures as’-follows, to wit,” etc: Then follows the. instrument in.quotation marks,■ and.the indictment concludes as follows: “ The grand j.urors, upon their oath, do say that the foregoing is the language and substance and meaning of said false and malicious statement, as near as they can give,” etc. Held, that notwithstanding the writing appears to be set out in hcec verba, the rcuacluding-part of the indictment, i. e., “ the foregoing is the ■ language and substance and meaning of said false and malicious-statement asnearas they can give,” etc., manifests-the.faet that the grand • jury oply attempted the substance and meaning as near as they could, and not the literal language of - the alléged libel,' which alone was sufficient.</p> <p>3. Same.—The laws of this- State - do not recognize; as an exception' to the general rule that' the libelous matter must' be set-forth hceo verba, the - omission of the literal language of the libel when it is indecently, obscene. If it be such as to invite the jurisdiction of the courts of this State, however obscene, it must be properly pleaded.</p> <p>4. Same.—The writing of a letter and the deposit of it in the post office for transmission'to the party addressed constitute the publication of a libel1 within the meaning of the law, provided such letter-be of such character that, if made public, it would affect the reputation of the party about' whom it was written.</p> <p>5. Same.—The distinction between libel at. common law and libel as defined by our statute is, that libel at common law is punishable because of its tendency to provoke a breach of the peace, while under our statute it is punishable as well because of its tendency to injure the reputation of a person. Such being the case, if this intent is averred, the indictment is sufficient, without the additional averment of the tendency and intent to provoke a breach of the peace.</p>

<p>Appeal from the District Court of Young. Tried below before the Hon. B. F. Williams.</p> <p>The indictment charged the appellant with an assault with intent to murder one S. B. Allison, in Young county, Texas, on the thirteenth day of February, 1883. The trial resulted in the-conviction, of the appellant, and his punishment was affixed at-a fine of five hundred dollars and three months’ imprisonment, in the county jail.</p> <p>The difficulty in which this prosecution had its origin is the same in which John Rogers was killed, far which S. B. Allison was prosecuted to conviction of murder in the second degree. Allison’s case will be found reported in full on page 403 of volume 14 of these Reports. A purported statement of facts, covering ninety pages of foolscap, is brought up with the transcript m . this case, but is not recognized by this court, for the reason assigned in the first head note. It is, however, a substantial repetition of the narrative of the occurrences at the time of the difficulty, as condensed in the report of Allison’s case.</p>

<p>Appeal from the District Court of Kinney. Tried below before the Hon. T. M. Paschal.</p> <p>i</p> <p>The indictment in this case, presented in the district court of | j Kinney county, Texas, on the nineteenth day of September, \ 1882, charged the appellant with the murder of one Alexander Backus, in Crockett county, an unorganized county attached to said Kinney county for judicial purposes, on the thirtieth day of March, 1882, by shooting him with a pistol. The trial of the appellant resulted in his conviction of murder in the first degree, and his punishment was fixed at a life term in the penitentiary.</p> <p>C. Soap was the first witness sworn for the State. He testified that he knew Alexander Backus in his lifetime. On or about the last day of March, 1882, the witness saw the dead body of the said Backus, in Crockett county, Texas. On the morning of that day the witness was working on the Mexican side of the-Rio Grande. About nine or ten o’clock on that morning he noticed what he took to be the body of a man hanging over the bluff of the river on the Texas side. Witness observed this object hanging over the bluff pretty much the entire day, and in the evening he saw a number of persons, who had congregated on the bank, draw it up. At that time the witness did not know whose body it was. Shortly after this the witness crossed to the-Texas side and saw the body of Alexander Backus lying on the bluff over which witness had that day seen the object described hanging. Witness did not touch the body, but walked around it and saw that two pistol shots had been fired into the head, one entering at the back and one at the side.</p> <p>The witness identified the defendant on the trial as Herman. Weller. The witness saw the defendant on the day preceding the day he saw the body suspended ¿ver the bluff. The defendant was then walking around under and over the bluffs, and evidently examining them. Witness, who at that time was on the Texas side of the river, asked him what he was doing. He replied that he was just looking around. The witness again saw the defendant walking arotind under the bluff on the day after the deceased was killed. The body of Backus, after it was raised from the bluff, was taken on some boards and stretched on two beer barrels at a neighboring saloon. The defendant, who was then present, walked up near to the body, examined it, and said: “I don’t know who it is.” Some one of the campers present identified the body as that of Alexander Backus, and1 defendant, walking to the outside crowd, remarked: “Yes, that is Alex. What will be done about it?”</p> <p>Cross-examined, the witness stated that the place where the-body was found was near the camp of a party of railroad mem engaged in the construction of the Sunset railroad. The camp* was composed of a large number of men. Wagons and teams were constantly passing over the wagon roads between the camp and the works. Other men were under the bluffs when the witness saw the defendant there, including witness and two or three others, who were fishing. The defendant had as much right at that place at that time as any of the party. The Rio Grande, at the bluff where the body was found hanging, was about three hundred feet wide. When he discovered the body, the witness was at work, chopping wood, on the Mexican side, about one hundred yards from the river. Witness took the object hanging over the bluff to be the body of a man when he first discovered it, and when he crossed back to the Texas side that evening, he found it to be the dead body of Alexander Backus.</p> <p>M. C. Slater was the next witness sworn for the State. He testified that he knew Alexander Backus in his life time. Backus was killed in Crockett county, Texas, on the thirtieth day of March, 1882. About dark, on the night of that day, the defendant and the deceased entered the saloon kept by the witness at the railroad camp. The defendant invited Backus to-take a drink. Backus refused, with the remark: “You know that I never drink, and what is the use of your asking me?’’ The defendant then took a drink of whisky alone, and he and the deceased left the saloon together. Within the next half hour the witness heard two reports of a pistol from the direction in which defendant and deceased had gone. The reports sounded like the shots were fired from a small pistol, and, as near as the witness could locate them by sound, they proceeded from a point near where the witness, on the next day, found the dead body of the deceased. About two hours later, the defendant returned to the witness’s saloon, alone, pretending to be very drunk. Witness did not know whether or not he was actually drunk, but he did not appear so to witness. He had only taken one drink at witness’s saloon. The witness knew that the defendant had a small pistol, of about thirty-six or thirty-eight calibre. The defendant had that pistol out on witness’s counter that day, trying to fit cartridges to it. It then contained but three loads.</p> <p>On the evening of March 31, the evening succeeding the events narrated, the witness and Charles McDonald went to the bluff, within less than a half a mile of the witness’s saloon, and found the body of a man hanging over it. McDonald and others held "the witness while he reached down, caught the body and hauled' it up on the bluff. Examination disclosed that the body was that of Alexander Backus, and that two shots from a small pistol of about thirty-eight calibre had penetrated the head. One ball entered the back of the head, powder burning it. The other 1 -entered at the side of the head. The face was much disfigured, and so covered with blood that the body was not at first recognized by any of the party present. The body was then taken to the witness’s saloon on the lid of a coffin prepared to receive it, and was stretched on two beer barrels. The defendant came -up to the body, and was asked, either by witness or McDonald, i if he knew whose body it was. He replied that he did not. -Shortly afterward, a young man came up from Mahoney’s camp and said; “I know the body. It is that of Alexander Backus,” .and, pointing to the defendant, “there is a man who ought to . know him, for he has been bunking with him for six months.” The defendant’s face turned instantly deathly pale, and he trembled to such an extent that he could not speak for a minute or I two. When he recovered sufficiently, he said, with much agitation, that the face was so bloody he could not recognize the ■body. The body was buried that evening, and the witness saw ,no more of the defendant until next morning, when he came to witness’s saloon with a bundle in his hand, and said that he was going away. He hung around witness’s saloon for a short time, left his bundle there, and went over to another saloon near by. !</p> <p>On this last visit of the defendant to the witness’s saloon, the i witness noticed that one of his fingers, at its intersection with ¡ ■the nail, had been bitten nearly through. The print of two teeth ■ .-on both sides were plainly discernable. The defendant first told : the witness that, while at work drilling, he placed his finger on :top of the drill and another man- struck and mashed it with a hammer. Thirty minutes later, he told witness that a rock fell on his finger and mashed it while he was climbing a bluff. Later in the evening, he told the witness his finger was hurt by a scraper turning over and mashing it against a chain. On the .next day, he told the witness that, on the night he was so drunk .at witness’s saloon, he fell down a bluff and mashed his finger -on some rocks. When the defendant came to witness’s saloon with the bundle, witness noticed that his, defendant’s, pants and ■' .his clothing on one side were very bloody. The defendant was > .-arrested by Mr. A. M. Grildea, deputy sheriff of Tom Green ¿county. I</p> <p>The witness assisted Mr. Gildea as a guard after the arrest of defendant, and during the time that he had the defendant in custody he had a conversation with him, defendant. Gildea was present during a part of this conversation. The defendant, after his arrest, was held in the witness’s saloon. Part of the time Gildea and witness were both with the defendant, and at other times only one or the other. A number of armed men congregated around the saloon after dark. Gildea and witness promised the defendant that they would protect him from mob violence if it should be attempted. Gildea and witness took the defendant off into the brush and prickly pear as soon as they could, and had a conversation with him. They told him that they knew that he killed Backus, and that the best thing he could do was to confess the whole thing to them, and tell them what he had done with the money, and promising, if he did so, to furnish him a horse and show him a crossing over the RioGrande. At first, the defendant denied that he had any knowledge of the killing, but presently asked: “How much do you fellows want, anyhow?” Witness replied: “You ought to .have got at least two hundred and fifty or three hundred dollars.” Gildea said: “We want all you have got.” Defendant said: “If you will do that (get him a horse and show him a crossing) it will be about one hundred and fifty dollars apiece in your pockets.” Gildea said that he would go off and see about a saddle. Witness then asked defendant why he had killed Backus, and he replied: “I killed him for his money.”</p> <p>When Gildea came back, he took the defendant and went down toward the river, telling witness to get the horse and bring him on, and whistle when a certain point was reached. Witness did not get a horse, but waited a while, and then went to the place indicated and whistled. Gildea and defendant joined the witness, and defendant said: “Come on; I will show you where the money is hid.” He then led witness and Gildea to a place where a water road had been blasted out of the rock, and, pointing up the bluff, said: “It is there.” Defendant, witness and Gildea climbed up, and Gildea told defendant to point out where the money was hidden. The defendant, pointing, said: “There between those two rocks.” Witness inserted his-hand into a crevice made by a blast, over which a rock had been placed, and found the money. Gildea and witness took the money and placed the shackles back on the defendant's hands. The money found amounted to two hundred and eighty dollars,. ten of which the defendant said belonged to him, and the balance to Backus.</p> <p>The defendant told the witness that he shot and killed Backus; that Backus fell at the first shot, and that he then shot him again; that he then struck him with two rocks, once in the mouth and once on the side of the head; that he then dragged the body to the bluff, rifled the pockets of the money, and threw the body over the bluff. After witness and Gildea had secured the money and reshackled the defendant, he said that he would not go back, and told witness and Gildea to shoot him, closing with the remark: “You fellows think you have played a d—d smart trick.” Next day the witness went to the point where the defendant said he killed the deceased, and there found a plain trail, showing where some heavy body had been dragged along. There was blood on the stones and grass, and two rocks, one of them bloody. Everything was found just as described by the defendant.</p> <p>Cross-examined, the witness stated that, in the conversation with witness and Gildea, the defendant said that he and Backus went to Gulet’s camp to buy a pair of shoes; that, on their return, he told Backus that he, Backus, owed him fifty cents; that Backus told him that he was a d—d liar; that he then struck the deceased, and the deceased threw a rock at him; that they then clinched, and in the struggle he shot the deceased, and the deceased fell, when he shot him again; that, finding he had killed the deceased, and wanting no one to know it, he dragged the body to the bluff and threw it over; that he knew the deceased had money, and, thinking he might as well have it, he took it before throwing the body over. He did not tell the witness that he lost his pistol in the struggle, and, in looking for it, found the money on the ground over which he had dragged the body. The defendant was under arrest when he made the statements detailed, and had been promised protection from the mob, a horse, and information as to a crossing over the river.</p> <p>On re-direct examination, the witness stated that it was about one o’clock at night when the defendant disclosed the place where the money was hidden. Gildea had, professedly, gone to see about getting a saddle when defendant told witness that he killed deceased for his money. Defendant and deceased were young men of about the same age.</p> <p>A. M. Gildea was the next witness sworn for the State. He "testified that he arrested the defendant in Crockett county, Texas, on the first day of April, 1882. When witness told the defendant he was a prisoner, the defendant asked why he was arrested. Witness told him on suspicion of having murdered Backus, The defendant, at that time, had one of his fingers wrapped in rags. Witness made him unwrap it, and saw that it had been badly bitten. Witness then took him over to Slater’s saloon, and witness and Slater concocted a scheme to extort a confession. They told the defendant that if he would tell about it, and show where he had secreted the money he took from the deceased, they would protect him from mob violence. The defendant at first refused the proposition, but, later, said that he would do so if witness and Slater would provide him with a horse, saddle and bridle, and show him a crossing over the Bio Grande. To this proposition witness and Slater agreed. Defendant then asked how much of the money witness and "Slater wanted. Witness told him that they must have it all. Thereupon defendant refused to treat. About this time, a crowd of armed men began to collect around the saloon, and witness and Slater took the defendant to a brushy hollow near the saloon, and repeated their proposition. The defendant again asked how much of the money must be forthcoming, and witness told him again that all must be turned over. Defendant then said that he would not show where the money was hidden until he saw the horse, saddle and bridle, and had been shown the crossing. The witness then left him in charge of Slater, on the pretense of seeing about the saddle.</p> <p>After a time, the witness returned and told defendant and Slater that he would take defendant to the river, while Slater would take a certain horse to that point. Slater left, as if to go for the horse. On their way to the river, the defendant stopped and said: “Let me get a heavy shirt I have here.” He then stepped aside, to a small clump of bushes, stooped down and took up a shirt, which he threw over his arm. Witness and defendant went on tó the “bottom.” While waiting for Slater, witness struck a match, to light a cigarette, and, from the light of the match, noticed that the shirt had blood on it. Witness asked him where the blood came from. He said that some of it came from Backus’s body, and some from his finger, which bled freely. When Slater whistled, witness and defendant went io where he was, and from there, under the guidance of the defendant, went to where the money was hidden. Defendant pointed to a crevice in the rock, and said: “There is the place.” Witness told him to point it out. He pointed down to the crevice, and said: “There; right there.” Slater displaced a rock and found the money. Witness put the money in his handkerchief, and then in his pocket. The witness then turned to put the shackles on defendant. Defendant made a spring toward the bluff, but witness caught him. Defendant then began to cry; said that he would not go back to the saloon, and told witness to kill him. Witness replied that he was an officer,, performing his duty, and could not kill him. Defendant then said: “You fellows think you have played a h—II of a smart-trick,” and returned with the witness. During the conversation with witness and Slater, the defendant said that he killed Alexander Backus, dragged his body to the bluff, took the money out of Backus’s pocket, and threw the body over the bluff. When this arrest was made, the witness was deputy sheriff of Tom Green county. He removed the defendant from Slater’s saloon because he thought that a body of armed men were gathering to hang him.</p> <p>Cross-examined, the witness stated that the murder was committed on Thursday evening, and that the defendant had ample time to make good his escape before his arrest on Saturday evening. The confession of the defendant as detailed was the result of an inducement held out to him by the witness—the same as stated on the examination in chief. Defendant made the statement concerning the killing, detailed by the witness-Slater on cross-examination, in the hearing of the witness. The money described was recovered by means of the information furnished by the defendant.</p> <p>The motion for new trial presented the questions discussed in the opinion.</p>

Tried below before the Hon. B. W. Rimes. The appellant in this case was convicted of the offense of perjury, and was awarded a term of five years in the penitentiary as punishment. The State introduced R. H. Turner as its first witness.

<p>Murder—Evidence—Case Stated.—A witness for the State, in a trial of a murder case, was permitted, over objection, to testify that on the morning of the day on Avhich the deceased was killed, he rode up to where the deceased was at work; that the deceased seemed agitated and excited and told him that he, deceased, Avas afraid of that Mexican, meaning the defendant; that this conversation occurred about two hours before the killing occurred, and that the defendant was in sight at the time, but not near enough to hear the said conversation between the witness and the deceased. Held, that in the admission of such evidence the trial court erred, inasmuch as it was clearly hearsay, and did not come within any of the exceptions to the general rule which rejects hearsay evidence.</p>

Tried below before the Hon. C, C. Potter. The conviction was for tb,e theft of a watch and chain from the person of L. Torply. The punishment awarded was a term of three years in the penitentiary. The matters embraced in the second and third head notes of this report were, with others, assigned as grounds for new trial,

Tried below before the Hon. T. B. Wheeler. The indictment in this case charged the appellant with the theft of one head of cattle, the property of one C. C. Slaughter. His trial resulted in conviction, and he was awarded a term of two years in the penitentiary. The State first introduced an affidavit sworn to and subscribed by C. C. Slaughter, to the effect that he had never given the defendant his consent to the taking of the animal.

Tried below before the Hon. B. F. Williams. The opinion discloses the case. A fine of thirty dollars was assessed against each of the appellants as punishment.

Tried below before the Hon. T. M. Paschal, The indictment charged the appellant with the theft of a horse, the property of W. M. Reynolds, in Uvalde county, Texas, on.the fourteenth day of December, 1883. The conviction was for-driving the animal from its accustomed range, with intent to defraud the owner. The punishment awarded by the jury was a term of two years in the penitentiary. W. M. Reynolds was the first witness for the State.

Tried below be'fore the Hon. R. E. Beckham, County Judge. i The conviction was for the malicious circulation of a libel, land the penalty imposed was a fine of two hundr.ed and fifty ■dollars.

Tried below before the Hon. T. B. Wheeler. The indictment charged the appellant with the theft of a coat of the value of twenty dollars, the property of W. H. Snyder, in Mitchell county, on the seventh day of December, 1883. The trial resulted in the conviction of the defendant, and the jury assessed his punishment at confinement in the penitentiary for the term of two years. G. H. Colvin was the first witness for the State.

Error from the District Court of Dimmit. Tried below before the Hon. D. P. Marr. The writ of error m this case was prosecuted from judgment final on the forfeiture of the bail bond of J. B. Hopper, bailed under a warrant charging him with the offense of theft of ani' mals. One thousand dollars was the amount of the bond and' the judgment.

Tried below before the Hon. T. L. Nugent. This was an appeal from a judgment final upon the appeal bond of 0. M. Davison, who, having been convicted of swindling under an indictment charging him with theft, and awarded punishment by fine of one hundred dollars and confinement for three months in the county jail, appealed to the Court of Appeals, where the judgment was affirmed. The amount of the bond and the judgment against appellants as ¡sureties was two hundred dollars

Tried below before the Hon. A. J. Hood. The appeal in this case is from the forfeiture of the appearance bond of one John Campbell, bailed under a charge of cattle theft. The amount of the bond was five hundred dollars.

Tried below before the Hon. T. L. Hugent. The appeal in this case’was from judgment final on the forfeiture oí the recognizance of one Wick Casey, bailed under an indictment for the theft of property over the value of twenty •dollars. Five hundred dollars was the amount of the recognisance and judgment. The sufficiency of the scire facias is the subject matter of the last headnote of this report. It reads as follows: “ The State of Texas ■“Ho. 46. vs. | Sci.

Tried below before the Hon. T. B. Wheeler. The opinion states the case. The amount of the bond adjudged was five hundred dollars.

Tried below before the Hon. R. E. Burke, County Judge. The information in this case charged that the appellant kept and exhibited, and was interested in keeping and exhibiting, a keno table, in the city of Dallas, Texas, on the fourth day of September, 1883. The trial of the appellant resulted in his conviction, and his punishment was affixed at a fine of twenty-five dollars.

Tried below before the Hon. Jo. Abbott. The appellant was indicted April 4, 1884, by the grand jury of Hill county for the crime of burglary, charged to have been committed on the night of November 30, 1883, by forcibly entering the store house of C, A. J. Warren, otherwise called Charley Warren, without his consent and with intent to commit theft.

Tried below before the Hon. A. J. Hunter, County Judge. From the judgment of conviction and such parts of the transcript as were not attempted to be substituted, it is ascertained that the defendant was convicted of keeping a disorderly house, and fined three hundred dollars. The opinion otherwise discloses the case.

<p>1. Habeas Corpus—Case Stated.—The applicant was committed in default of bail by a justice of the peace to await the action of the grand jury on a charge against him of theft of a horse. The grand jury, by mistake, returned an indictment against him for the theft of a saddle, which mistake was not discovered until after the discharge of the grand jury. The district attorney moved the court to hold the applicant over until the next meeting of the grand jury, which motion the court refused. Thereupon a second prosecution for the theft of a horse was instituted before a justice of the peace, who, sitting as an examining court, again committed the applicant, in default of bail, to await the action of the next grand jury. Applicant then applied to the district judge for a writ of habeas corpus, which was awarded, but, upon the hearing, the applicant was remanded to custody in default of bail. No trial upon the merits was had upon the habeas corpus, the applicant admitting the existence of probable cause for believing that he was guilty; but he demanded his discharge upon the ground that the second prosecution before the justice was barred by the previous one, and that the subject matter was res adjudícala as to any examining court, and he could no longer be detained to answer said charge except under an indictment by the grand jury. ■ Held, 1. That, upon the failure of the grand jury to present an indictment against him for horse theft, at the term succeeding his commitment, the applicant was entitled to his discharge, and a dismissal of that prosecution, no good cause to the contrary, supported by affidavit, being shown to the court. 2. The doctrines of res adjudícala and jeopardy do not apply to proceedings before examining courts; and the second prosecution and proceedings in the examining courts were warranted by law.</p> <p>2. Same—Jeopardy.—A person is in legal jeopardy only when he has been placed upon trial before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and when a jury has been charged with his deliverance.</p> <p>3. Same.—A dismissal of a prosecution before jeopardy has attached, without a trial upon the merits and a judgment of acquittal or conviction, is not a bar to another prosecution for the same offense.</p> <p>4. Same.—It is expressly provided by statute (Code Crim. Proc., Art. 381) that a discharge by a magistrate upon an examination of any person accused of an offense shall not prevent a second arrest of the same person for the same offense. The same rule applies in case of a commitment.</p> <p>5. Special Pleas of Former Acquittal ard Conviction are provided for by statute (Code Crim. Proc., Arts., 633 and 634), and are the only pleas of res adjudicata recognized in criminal proceedings, except in the ease of judgment upon habeas corpus.</p> <p>6. Habeas Corpus.—When a person accused of an offense has been discharged under habeas corpus proceedings, he cannot be detained in custody upon the same charge until after he shall have been indicted therefor.</p>

W. E. Coliard. The conviction in this case was for the theft of seventy dollars in money, the property of J. W. Tabor, in Brazos county, Texas, on the tenth day of August, 1881. A term of three years in the penitentiary was the punishment imposed. The first witness for the State was J. W. Tabor.

Tried below before the Hon. R. G. Childress, County Judge. The information charged the unlicensed sale of intoxicating liquors in quantities of one quart.

Tried below before the Hon. D. P. Harr. The indictment in this case was joint against the appellant and Albert Perkins, and charged them with the theft of two horses, the property of N. A. Brice, in Zavalla county, Texas, on the second day of September, 1880. The appellant being alone upon his trial, was convicted, and his punishment was assessed at five years in the penitentiary.

Tried below before the Hon. É. C. Stuart, County Judge. The information charged the appellant with the offense of wilfully obstructing a public road in Falls county. A fine of fifty dollars was imposed by a verdict of guilty. W. H. C. Lee was the first witness introduced by the State. He testified that he was the overseer of the road leading from White Rock crossing to the Bell county line, in Falls county, Texas.

Tried below before the Hon. B. W. Rimes. The indictment charged the appellant with the theft of a horse, the property of Harry Stuart, in Falls county, Texas, on the twenty-third day of December, 1883. His trial resulted in his conviction, and his punishment was assessed at a term of fifteen years in the penitentiary. Harry Stuart was the first witness for the State.

Tried below before the Hon. E. C. Stuart, County Judge. The indictment in this case was transferred from the district to the county court. It charged the appellant with giving away intoxicating liquors in precinct number seven, of Falls county. A verdict of guilty was returned against the appellant, assessing his punishment at a fine of twenty-five dollars. The que stions involved in the rulings of this court were presented below in the motion for new trial.

Tried below before the Hon. B. W. Rimes. The conviction in this case was for murder in the first degree, perpetrated upon one Jane Washington, in Falls county, Texas, on the second day of November, 1883. A life term in the penitentiary was the punishment awarded. The defendant and the deceased were both negro women.

Tried below before the Hon, B. W„ Rimes. The indictment charged the appellant with an assault with intent to murder one William Wright, in McLennan county, Texas, on the eighteenth day of January, 1883. She was convicted of aggravated assault, and her punishment was affixed at a fine of two hundred and fifty dollars. Garland DeGrafenried was the first witness for the State.

Tried below before the Hon. Jo. Abbott. The indictment in this case was joint against the appellant, Joe Brown and John Kennedy, and charged them with the murder of Allen and William Sams, in Hill County, Texas, on the fourth day of March, 1881. The appellant being alone upon trial was found guilty of murder in the first degree, and his punishment was assessed at confinement in the penitentiary for the term of ninety-nine years.

Tried below before the Hon. L. D. Bradley. The appellant in this case was refused bail and remanded to custody under an indictment charging him with the murder of Joe Lee Wood, in Limestone county, on the eighteenth day of September, 1853. The statement of facts brought up with the record is rejected because approved by the trial judge after his authority over the same had terminated.

Tried below before the Hon. Gf. J. Clark. The indictment against the appellant was for arson, and charged him with the burning of J. A. Weaver’s gin house, in Hopkins county, Texas, on the twenty-fourth day of December, 1883. Trial resulted in conviction, and the punishment was affixed at a term of five years in the penitentiary.

Tried below before the Hon. W. 0. Read, County Judge; The opinion discloses the nature of the case. The penalty imposed by the verdict was a fine of ten dollars.

Tried below before the Hon. E. G-. Childress, County Judge. The conviction was for playing cards in a public place. A fine of ten dollars was the punishment imposed.

<p>Appeal from the District Court of Falls. Tried below before the Hon. B. W. Rimes.</p> <p>The case will found clearly stated in the opinion of the court. In the report of the case of Hobtnson v. The State, ante, page 347, will be found the evidence upon which the convictions were had in the court below in both cases. A life term in the penitentiary was the punishment awarded against the appellant, being the same penalty as that assessed against Robinson,</p>

<p>Appeal from the District Court of Houston. Tried below before the Hon. J. B. Kennard.</p> <p>The indictment in this case charged the appellant with the murder of G. W. Montzingo, in Houston county, Texas, on the twenty-seventh day of October, 1883, by stabbing him with a knife. He was convicted of murder in the second degree, and his punishment was assessed at a term of fifteen years in the penitentiary.</p> <p>Metcher Thomas, the first witness introduced for the State, testified that he lived on Hevill’s prairie, in Houston county, Texas. He knew the defendant, and knew the deceased, G. W. Montzingo, at the time of his death. The witness saw the defendant in the town of Lovelady, in Houston county, on the evening before the killing. At the same time, and in the same town, he saw Tom Stanley and the deceased together. He remembered no other persons he saw at the time. He heard the defendant tell the deceased to take an ax handle and wear Tom Stanley out with it. Something was said about a saddle, which the witness did not understand.</p> <p>Bob Stevens was the next witness put on the stand by the State. He testified that, in the latter part of October, 1883, when the deceased was killed, he, witness, lived in Walker county near the line, and near Hevill’s prairie. His house was situated on the road between the houses of the defendant and the deceased, some three or four hundred yards distant from the former, and about three hundred and fifty yards distant from the latter. On the evening of the killing, which occurred in Houston county, late in October, 1883, the witness was in a ditch near the road and heard the defendant say: “ Let’s go down to the old son of a b—h’s house and see him.” The witness saw no one at this time, but distinctly heard this remark made by the defendant. Witness did not see the defendant, or Stanley' or Britton, before the killing. After the killing, the defendant came to the witness’s house and told him that he wanted him to go down to Whit’s house; that Tom Stanley had cut Montzingo, he expected fatally. The defendant said at that time that a difficulty had occurred. He had a gun with him. The witness went at once to Montzingo’s bouse, and found him lying on the gallery. His wife and children were in the house. Doctor Glover arrived at the house of the deceased soon after the witness did. The witness saw no blood at the house of the deceased except on the gate post on the outside of the paling, and in the walk leading from the gate to the house. The witness did not think that the feeling between the deceased and the defendant was good at the time of the homicide. A few days before the killing the defendant said that the deceased owed him a small sum an 1 would not pay it, and it was from this the witness inferred that the feeling between the defendant and deceased was not good. The defendant lived with his father, some seven or eight hundred yards distant from the deceased’s.</p> <p>Referring to the remark the witness overheard the defendant make just before the homicide, the witness said he was in a ditch at the time watering his oxen. At the house of the deceased, the witness asked Mrs. Montzingo for deceased’s gun. She looked for it but could not find it, and it was supposed that the gun had been taken off. Buck Shaw was there, but said nothing about the gun, nor where it was, before he went off. He came back after dark and said that he knew where the gun was; that it was out against the fence, where it was found. It had been previously looked for at that place. From the gate to the gallery the distance is about seven or eight steps. When the defendant came to the witness’s house and asked him to go and attend to Montzingo, he said: “We got into a difficulty, and Stanley cut Montzingo three times.” Tom Stanley, the defendant and Buck Shaw came by the witness’s house, Buck Shaw walking, Henry Montzingo and Britton Turner both told witness that the latter went after the doctor for the deceased. The witness did not know where the deceased lived during the year 1883, but had hear him say that he lived at the place of Turner’s father. Ho lawyers that the witness knew were present at the inquest over Montzingo’s body. After the witness heard the de« fendant say .“let’s go to the son of a b—h’s house,” he went to the well to get a bucket of water, and while there heard loud talking at Montzingo’s house. Tom Stanley and Buck Shaw came to witness’s house just after witness got back with the water.</p> <p>Doctor Glover testified, for the State, that he was called in to see the deceased in October, 1883, and found him suffering from two wounds. One wound was in the back just under the shoulder blade, and it looked like it had been inflicted with a knife or ax. It was three and a half or four inches long. The second wound was in the breast and was one inch and a half long, cutting the heart. Either of these wounds would have proved fatal. The deceased was dead when the witness reached him. A man cut in the region of the heart would bleed profusely. Witness saw no blood outside the gate. Mr. Stevens and the family of the deceased were at the house of the deceased when the witness arrived. Mrs. Montzingo, the wife of the deceased, was cut upon the arm and was otherwise bruised. The witness saw an ax lying on the ground, one or two feet inside the gate. The wound under the shoulder blade had the appearance of having been inflicted with an ax.</p> <p>The deceased went to the town of Lovelady with the witness, about twelve o’clock on the day that he was killed, and returned with McManners. Witness saw the defendant, Britton Turner and Tom Stanley in the town of Lovelady on that day. Witness saw Britton Turner after the killing. Britton called him to go and see deceased. The deceased was a man of feeble health, and would not have weighed above one hundred and thirty or one hundred and thirty-five pounds at the time of his death. The defendant, Britton Turner and Tom Stanley are all able bodied, stout men. The witness thought good feeling existed between the parties. Messrs. Wills, Worthington and Hooper assisted the witness in hunting for blood about the premises, but none was found outside the gate. Witness saw blood on the ax and on the handle of the ax, as it lay in the yard. Witness went to Lovelady after the officers. Mr. Moore made the arrest of the defendant, Britton Turner and Tom Stanley. They were arrested at Mr. Turner’s old place, where Mr. Williamson lives. The wound under the shoulder blade could have been made with an extraordinary knife.</p> <p>The witness testified that he had been practicing medicine for twenty-eight years. He was not, however, a regular graduate, and had no diploma, but was recognized and consulted by his medical brethren as a physician. He felt much interest in the present case, and was one of the private prosecutors. He assisted in forming the jury, and aided in raising money to employ special counsel for the prosecution. He was impelled to do this by the poverty of deceased, and the further fact that the deceased, when killed, was his tenant. If the heart of a man be pierced by a knife,, blood will instantly follow the withdrawal of the instrument. Montzingo’s shirt was so torn as to leave nothing to obstruct the flow of blood.</p> <p>Mrs. Montzingo was the next witness for the State. She testified that she was the widow of the deceased. Some time in the month of October, 1883, about sundown, the defendant, with Britton Turner and Tom Stanley, rode up to the house of the deceased and hailed the deceased at the gate. The parties named then got down from their horses and came into the yard. The defendant walked up to the step on the gallery, put his hand on deceased’s shoulder, and said: “Mr. Montzingo, I understand that you have been cursing and abusing my father.” Deceased denied that he had ever done so. At this point Britton Turner threw his hat on the gallery, and said that he could whip any man who talked about his father. Witness ordered the party out of the yard, because, as she told them, they had come to create a difficulty. Witness repeated the order three different times. They did not go. The deceased ordered them to leave the yard, and upon their failure to leave, the deceased caught up an ax handle and struck Tom Stanley. Thereupon the defendant, Britton Turner and Stanley backed toward the gate, facing the deceased. The deceased struck Stanley a second blow with the ax handle, while they were about half way between the gallery and the gate. The three parties then gathered around the deceased and killed him. The deceased did not strike Stanley on the head, but on the shoulder. Britton Turner went to the wood pile and stooped as though picking up something. After the difficulty the witness saw an ax lying in the yard, stained with blood from one end to the other. Witness left this ax at the wood pile, about ten feet outside the gate, that evening. Stanley cut the witness with a knife, and some one of the party, witness did not know who, struck her with an ax handle. The witness had two children. The difficulty, which terminated in this homicide, occurred in the yard of the deceased.</p> <p>The defendant, Britton Turner and Stanley left immediately after the difficulty, and the deceased died within five minutes. Witness did not see any one strike the deceased with the ax, but just after the difficulty she saw the ax lying, bloody, across the gate opening inside the yard. She did not see the ax used during the difficulty. She did not hear the defendant tell Stanley that they intended to have no difficulty at the house. She saw Buck Shaw on the place before the conclusion of the difficulty. He was there on horseback. After the cutting the witness’s step-son, Henry Montzingo, went into the house and got the gun, which the defendant took from him, and carried off. The gun was next found in the corner of the fence. The deceased stripped off his coat before he caught up the ax handle and struck Stanley. The witness testified before the jury of inquest, but did not state on that investigation that the deceased struck Stanley three times with the ax handle. She did not state on her examination that the deceased backed the party to the gate before the cutting. They never reached the gate before the cutting. She did not state at the inquest that the several parties were at and just in the gate when the deceased ran up to Stanley. Witness did not see who of the parties stabbed the deceased, but saw Stanley have a pocket knife in his hand after the cutting. The witness saw no other weapons of any kind during the fight.</p> <p>Britton Turner came to the deceased’s house on the morning of the homicide, and asked if deceased was going to town; saying that, if so, they would go together. Witness knew of no previous difficulty of any kind between the deceased and any of the parties, and had no idea what the occasion of this difficulty was. Blood was scattered all about the place on the inside, but witness saw none outside the yard. There was blood on the gate post, and there was blood on the persons of the witness and her children. Witness’s step-son, Henry, and Britton Turner went after Doctor Glover, who arrived within a few minutes after the cutting. The deceased’s shirt was torn almost entirely off of him during the fight. Witness saw the whole of the difficulty. She was present and testified at the inquest, but at the time was laboring under great mental excitement.</p> <p>Henry Montzingo, the son of the deceased, and step-son of the last witness, was next introduced by the State. He testified that he saw all of the difficulty in which his father lost his life. The three parties charged with this homicide rode up to deceased’s gate, hailed the deceased and got down from their horses. Deceased invited them in. They came in, and the defendant walked up to the steps, put his hand on the deceased’s shoulder, and accused him of cursing and abusing old man Turner. Deceased denied having done so. The defendant then called on Stanley to prove that deceased had cursed and abused old man Turner, the defendant’s father. Mrs. Montzingo at this point ordered the party to leave the place, but they would not go. The deceased then ordered them to leave, and they again refused. Deceased then caught up an- ax handle, pulled off his coat and struck Stanley a blow on the head. The party then backed towards the gate. The deceased pursued and struck Stanley a second blow, and struck at him a third time, which last blow was warded off Stanley by the defendant. Stanley-then ran up to the deceased and made a motion at him as though cutting him. At this time the party was about two feet inside of the gate. After cutting the deceased Stanley ran off towards the prairie on foot, his horse having broke loose. Witness did not know where the defendant went to. The witness saw no ax used during the difficulty, but he saw an ax on the ground after the difficulty. There was some blood on the blade, and some few drops on the handle. When the deceased cried out that he was cut, the witness ran into the house, got a gun and returned. The defendant took the gun away from the witness, but made no effort to use it. Witness saw considerable blood in the yard, but none on the outside. Several persons examined the premises for blood.</p> <p>The witness heard no loud or angry words used during, the fight except those used at the time that the defendant caught the deceased’s shoulder when he first stepped up to the gallery. Stanley was standing out in the yard- between the gallery and the gate, when called upon by the defendant to verify the charge against the deceased'of having cursed old man Turner. All three of the parties backed when the deceased struck Stanley with the ax handle. Stanley ran into the deceased when the latter struck at him the third time. Witness did not see the defendant make any effort to hurt the deceased. The ax handle used by the deceased was a new one. It was lying on the gallery, and when the deceased went to pick it up the defendant, who was then standing on one of the steps, backed off. Deceased said to Stanley: “You are the man who told the lie; get out,” and struck him. Stanley was not quite to the gate when the deceased struck at him the third time. Witness at no time during the fight heard defendant say to Stanley: “Cut him” or “kill him.” Britton Turner went for the doctor, and arrived at the doctor’s house before the witness did. Witness’s mother (step-mother) was cut on the arm by some one, the witness did not know who. The witness saw an ax lying in the walk between the gate and the gallery, after the fight, but did not know how it came to be bloody. A man, if cut outside the gate, in going to the point -where the deceased fell, would have had to pass over the ax if it lay in the yard where the witness saw it. Witness saw blood on the left gate post, as one goes into the yard, but saw no blood outside the yard. When the party first came to the house Britton Turner said, throwing his hat down on the gallery, that he could whip any man who abused his father. The witness heard no one of the parties say that they had not come for a difficulty. At this point the State closed.</p> <p>Buck Shaw was the first witness introduced by the defense. He testified that he was in no way related to any of the parties to this difficulty. He was present at the time of the difficulty, and saw the whole of it. As the witness rode up to the house of the deceased he heard a conversation between the defendant and Mrs. Montzingo. The deceased said that he had not cursed and abused old man Turner. The defendant and Britton Turner then remarked that they had nothing against the deceased, and the defendant further said to the deceased that he did not care how much deceased cursed him, but that he could not abuse his father. The deceased then picked up an ax handle, and point.ing it at Stanley, said: “There is the G—d d—d son of a b—h who told the lie.” Deceased then ordered the party to “ get out.” They all walked out of the yard at the same time. Deceased then started out of the yard after them, and defendant caught him to keep him from going out of the yard. The deceased then struck Stanley twice with the ax handle, and struck at him the third time, when Stanley ran off. Deceased ran after Stanley, and Stanley turned and cut him. Deceased did not even -touch Stanley in the yard, and no one was hurt in any manner until the parties got entirely out of the yard. Witness sat on his horse within ten feet of the fight, and saw it all. After the deceased was wounded he went back into the yard and sat down on the door steps. Stanley was a smaller man than the deceased. When the deceased said that he was cut, he also said to the defendant: “ John, Stanley has killed me.” Herirv, the deceased’s son, then ran into the house and got his father’s gun, which the defendant took away from him, asking him what he wanted with it. Henry replied that he got the gun for -the purpose of shooting Stanley.</p> <p>The witness remained at the house of the deceased but a few minutes after the difficulty, but was back there next day, and saw blood on the gate post, and also on the beam of a plow that stood outside the gate. The witness had known both the defendant and the deceased for several years, and had always known them -to be friendly to each other. The witness saw nothing of a bloody ax about the deceased’s premises. The witness was- arrested for complicity in this homicide. The deceased never forbade the witness visiting a young lady—a sister-in-law of this defendant—at his, deceased’s, house. The witness had stated that the Turner girls were crying when he, witness, was at their house, and that they asked him to go to Moritzingo’s and stop the difficulty. Witness was at that time visiting a sister of the defendant. An unfortunate circumstance has happened to one of Mr. Turner’s daughters since the death of Montzingo. The "witness heard Britton Turner tell Stanley, at the house of deceased, that if he, Stanley, took the d—d lie, that he, Britton, would whip him, Stanley. Witness saw Stanley with a knife before any blow was struck, and saw him strike deceased three or four times. Witness was not at or about the house of the deceased that night, looking after the gun. Witness and the' parties charged with this offense did not meet Bob-Stevens that evening. Stevens was at home. The defendant had no gun when he and defendant went to Stevens’s house. Mrs. -Montzingo was in the yard when the deceased caught up the ax handle. The grand jury found no indictment against the witness for complicity in this killing.</p> <p>George W. Rowan was the next witness for the defense. He testified that he was in no way related to any of the parties to this prosecution. He had known them all, defendant and deceased, for about three years. The witness saw the defendant and the deceased in the town of Lovelady on the day of the killing. He went home with the defendant, a short time before sundown, Stanley, who had been to town, came to Mr. Turner’s a short time afterward. Stanley was living with the Turners at that time. Britton Turner, defendant and Stanley, after a time, went off in the direction of the deceased’s house. They said nothing about where they were going. Witness was at the house of the deceased the next morning. He saw blood on the gate post, on the palings to the left of the post, on the beam of a plow that stood about five feet from the gate, and on some chips that lay about five feet in front of the gate. The chips had been somewhat stirred up. He saw an ax to the right of the gate, at the wood pile. The handle was somewhat bloody, but the witness saw no blood on the ax. The defendant and the deceased always appeared friendly. Witness had seen the deceased and all the parties charged with the murder together, and had never known or heard of hard feelings existing between them. He had never heard of any threats uttered against the deceased. Witness was a single man. Neither Buck nor James Shaw were married men.</p> <p>Witness stayed at Mr. Turner’s house all night the night of the killing. Witness did not know the location of the place called the “old Turner place.” Witness went to the house of Mr. Clark, Mr. Turner’s son-in-law, to tell Mr. Turner about the occurrence, remained about one hour, and returned to Mr. Turner’s that night and remained all night. He went to Mr. Clark’s to see Mr. Turner at the suggestion of James Shaw. The blood on the pickets (palings) spoken of by witness extended over three pickets to the left of the gate post, going into the yard.</p> <p>J. B. Jones was the next witness for the defense. He testified that he was at the house of the deceased on the next day after the killing, about eight or ten o’clock. He saw blood on the pickets outside of the fence, on the gate post, on some chips four or five feet from the gate, and on the beam of a plow. He saw no blood on the axe. The gate was standing open when the witness got to the house. There was a great deal of blood about the gate. It was on the left of the gate, and on the pickets to the left of the gate, as one would go into the yard. The blood on the chips was in drops.</p> <p>James Shaw testified, for the defense, that he had known the defendant for ten years, and, at the time of his death, had known the deceased about six years. He was at the house of the deceased on the morning after the killing, and saw blood on the palings and chips, the fence post and a plow beam outside the yard. The witness was with the parties on the day that the killing occurred, but was not present when it did occur. He had never heard any of the parties, deceased or defendants, say anything ill of each other. The father of the defendant was at the house of his daughter, Mrs. Clark, when the killing occurred. Witness and Buck Shaw were brothers. Ho particular person told Buck Shaw to go to deceased’s house on the night of the killing. He was advised to go, as the boys might flog the deceased. Witness was arrested as a party to this homicide, but was released on the day of his arrest.</p> <p>The defense then introduced the written testimony of Mrs. Montzingo, taken before the jury of inquest, and read from it as follows: “Mr. Montzingo took off his coat, took up an ax handle. As they all backed in line to the gate, Mr. Montzingo struck Tom Stanley. Then Mr. Montzingo struck at Stanley three or four times. When Stanley ran up to Mr. Montzingo, we were just in the gate.”</p> <p>The motion for new trial raised the questions discussed in the opinion, and denounced the verdict as against both the law and the evidence.</p>

<p>1. Practice—Continuance.—See the statement of the case for circumstances under which it is held, that certain applications for continuance were properly denied.</p> <p>2. Same—Case Stated.—This case was set for trial on the third day of April. On the fifth day of that month, and while the trial was in progress, the defendant asked for a continuance to procure the testimony of a certain witness. The application showed the necessary diligence in suing out an attachment for a witness who was under subpoena, and who had been in attendance upon the court during the previous days of the term, but ivas found to be absent on the day set for the trial. As a fact, however, this attachment did not issue until the next day, and was then returned not served. Held, that, having gone into trial, the defendant was not entitled to a continuance, unless he could show that, by some . unexpected occurrence since the trial began which no reasonable diligence could have anticipated, he was so taken by surprise that he could not secure a fair trial. This application, however, shows no such surprise, and the court did not err in refusing the continuance at the stage of the proceedings at which it was asked.</p> <p>3. Same—Hew Trial.—It is a rule of practice in this State that, even when an application for continuance lacks some of the statutory requirements, if the proposed evidence appears material and true, it should be considered and weighed in connection with the evidence adduced, on the motion for new trial. This rule must be held to apply equally to an application for a continuance which, like this for instance, is irregular and unauthorized. The evidence set forth in the application in this instance being clearly material and probably true, the same should have been considered on the motion for new trial. See the statement of the case for the proposed evidence referred to.</p> <p>4. Same—Pleading.—It is only when the proposed absent testimony upon which a motion for new trial is based is claimed to be newly discovered that the affidavit of the absent witness to the effect that he would testify as stated in the motion is necessary to the validity of the motion. In all other respects it is only when the State has taken issue with the de- , fendant on the truth of the matters set forth in the motion for new trial' that the trial judge is required or authorized to hear evidence by affidavit or otherwise. The affidavit of the absent witness, in this case, was not essential to the validity of the motion.</p> <p>5. Murder—Implied Malice—Charge op the Court.—Upon the ques-. tion of implied malice the trial court gave in this ease the same charge it gave in the case of John Turner v. The State, ante, page 378. For the ruling which is adopted in this case, see that case.</p> <p>6. Same—Right to Repel Invasion op Home.—Upon the right of the deceased to repel an intrusion upon his home premises, the court charged the jury “that entering into a quarrel or an angry verbal altercation with the occupant of the home premises, against his consent,in the presence of his wife and children, if he has any, would be improper conduct in the sense here used.” Held, error, as being a charge upon the weight of evidence.</p> <p>7. Charge op the Court—Practice—Case Stated.—On the trial, the State proved, amongst other things, that another party, who was charged in a separate indictment with the same offense, told defendant that he would whip defendant if he did not stand up to what he had said; that the appellant did not want to go with the other parties separately in-dieted for this offense to the house of deceased; that defendant said he feared a difficulty if they went; that defendant era route expostulated against going, and that defendant was a man of peaceable disposition. In view of this and other evidence, the defense asked the following charges of the court: “If you believe from the evidence that John and Brit-ton Turner, by threats or otherwise, exercised undue influence over the person of the defendant, sufficient to overcome the mind of an ordinary man, and thereby induced him to accompany them to the residence of the deceased, then he was excusable in being there.” “If you believe from the evidence that the defendant was a mere trespasser upon the premises of the deceased, or was brought there by undue influence exercised over his mind by threats or otherwise from John and Britton Turner, sufficient to overcome the will of an ordinary mind, and that defendant used no insulting words or threatening gestures previous to the attack of the deceased, then the deceased was not justifiable in doing him serious bodily injury except in defense of himself and family.” Held, that whilst the charges asked were not critically correct, nor based upon such facts as would bring the case within, the. letter of the statute which makes duress a complete defense for acts otherwise punishable, the charges were within the spirit of that statute, and, under the peculiar circumstances of" this case, their refusal was error.</p>

Tried below before the Hon. J. R. Kennard. The indictment in this case was filed in the district court of Houston county on the twenty-fifth day of November, 1876. It ■ charged that the appellant, on the twenty-first day of August, 1876, did steal a certain gelding, the property of one Amanda Brown. The trial was had at the March term, 1884, of the district court, when the appellant was convicted, and his punishment was assessed at a term of five years in the penitentiary.

<p>1. Unlawful Sale of Estray Animals—Charge of the Court.—Indictment comprehended the two counts of selling the estray animals without having given legal notice of the sale, and of selling the same when three adult bidders besides the family of the taker up were not present. After the evidence was submitted the State abandoned the first count, and elected to proceed on the second, notwithstanding which the court charged, in effect, that if the jury believed the defendant sold the said animals without having given legal notice, they should convict. Held, that such question was no longer in issue, and the defendant promptly excepting, the charge was erroneous upon the elementary principle that the charge of the court should be confined to the issues to be tried.</p> <p>3. Same—Practice.—The liability of the court to mislead the jury and prejudice the rights of the accused by extending the charge beyond the issues involved in the trial, is the reason of the rule. When, then, the defendant has excepted to such a charge, and doubt arises as to how far the defendant may have been prejudiced by it, the duty of reversing the judgment is imposed upon this court. To defeat the enforcement of this rule, it must manifestly appear that the charge, though wrong, did not influence the verdict of the jury.</p> <p>3. Same—Construction of a Term—Charge of the Court.—To the law (Rev. Stats., Art. 4583) regulating the sale of certain estray animals is appended a proviso which, in effect, forbids the sale, even under legal notice, unless there be present at the sale at least three adult bidders besides the members of the family of the taker up. In the charge authoizing the jury to convict in the event they believed that three adult bidders besides the members of the defendant’s family were not present at the sale, the court declined to instruct as to what constitutes a “ family,” but declared that question to be a matter of proof, and authorized the jury to construe the meaning of the term for themselves. Held, error; that the term, when applied to a particular state of facts, is a mixed question of law and fact; that it is the province of the court to declare the law, so far as the fact is governed by law, and so far as the' fact is a question of proof, it is to be deduced by the jury from the evidence, and not from their personal knowledge.</p> <p>4. Same.—In the construction of Article 45$3, Revised Statutes, regarding the sale of certain estrays, the word “family” is held to mean the collective body of persons who live in one house, under one head or manager.</p>

Tried below before the Hon. D. T. Bledsoe, Special County Judge. The conviction in this case was for aggravated assault and battery, and the penalty imposed was a fine of four hundred dollars and confinement in the county jail for the period of twelve months.

Tried below before the Hon. B. W. Rimes. The indictment charged the appellant with the burglary of, and theft from, the house of one G. W. Klotts, in Bell county, Texas, on the twenty-seventh day of January, 1884. He was found guilty as charged in the indictment, and was awarded a term of two years in the penitentiary as punishment. G, W. Klotts was the first witness for the State, He testified that he lived in Bell county, Texas.

Tried below before the Hon. L. W. Moore. The conviction was for the robbery of S. B. Johnson, in Bastrop county, Texas, on the first day of February, 1883, and the punishment imposed was a term of two years in the penitentiary. S. B. Johnson was the first witness sworn for the State. He testified that he lived in Williamson county, Texas. On the first day of February, 1883, the witness went to McDade, taking a load of cotton seed with him.

Tried below be- ! fore the Hon. J. E. Crawford, County Judge. The opinion discloses the case. The penalty imposed was a fine of ten dollars.

Tried below before the Hon. J. R. Kennard. The offense charged in this case, the murder of G. W. Montzingo, is the same charged in the two preceding cases, Turner v. The State, ante, page 378, and Stanley v. The State, ante, page 392. The appellant was convicted of murder in the second degree, and his punishment was affixed at a term of twenty years in the penitentiary.

Tried below before the Hon. J. E. Kennard. The conviction was for the theft of twenty hogs, the property of E. H. Cabiness, of the aggregate value of forty dollars, in Walker county, on the tenth day of March, 1883. A term of two years in the penitentiary was the punishment awarded. E. H. Cabiness was the first witness for the State, He testifled that, early in March, 1883, he left his home to look after his stock.

Tried below before the Hon. R. E. Burke, County Judge. The indictment charged that the appellant, in the city of Dal- j las, on the fifteenth day of May, 1883, did keep a disorderly house for the purpose of public prostitution and as a common resort for prostitutes and vagabonds. Trial resulted in conviction, and the punishment of the appellant was fixed at a fine of one hundred dollars.

J. E. Kennard. The indictment charged the appellant with the murder of Mattie Murchison, in Houston county, Texas, on the twentieth day of December, 1883, by stabbing and cutting her with a knife. The conviction was for murder in the second degree, and a term of fifteen years in the penitentiary was the punishment awarded. The first witness introduced by the State was William Stanton.

Tried below before the Hon. B. W. Rimes. The conviction was for the embezzement of the property of Wilson & Austin, exceeding in value the sum of one hundred and thirty dollars. A term uf two years in the penitentiary was the punishment awarded. J. L. Wilson was the first witness for the State. He testified that he was engaged in the hardware, tin and stove business in the town of Belton, Bell county, Texas.

Tried below before the Hon. T. L. Nugent. The conviction was for the theft of a horse, the property of' J. N. Carr, in Erath county, Texas, on the twenty-sixth day of October, 1883. A term of seven years in the penitentiary was the punishment awarded. The case is substantially stated in the opinion.

Tried below before 1 tifiarles So ward, Esq., Special Judge. J The indictment in this case was joint against the appellant, ¡ ¡Bunk Allen and Ed. Johnson, and charged them with the murdar of Mack Gill, in Wise county, Texas, on the twenty-third day of December, 1883. The appellant, being alone upon trial, was convicted of manslaughter, and his punishment was affixed I &t a term of two years in the penitentiary.

<p>Appeal from the District Court of Grayson. Tried below before the Hon. E. Maltbie.</p> <p>The conviction was for the theft of a mule, the property of Isaac Cole, and the penalty imposed was a term of five years in the penitentiary.</p> <p>The opinion summarises the inculpatory evidence sufficiently to convey a clear understanding of the rulings.</p> <p>The motion for new trial raised the questions involved in the opinion.</p>

<p>Appeal from the County Court of Dallas. Tried below before the Hon. E. E. Burke, County Judge.</p> <p>The conviction was for keeping a disorderly house in the city of Dallas, and the punishment imposed was a fine of one hundred dollars.</p> <p>City policeman John Overand was the first witness introduced by the State. He testified that he knew the defendant. She kept a disorderly house in the city of Dallas, Texas, from April 5. 1883, until May 25, 1883. The general reputation of that house was that it was a house of public prostitution. The inmates of the house were reputed to be common prostitutes. Several women, inmates of that house, were fined as common prostitutes during the months of April and May.</p> <p>Cross-examined, the witness stated that he was a witness in the mayor's court against the defendant when she was tried in that court, and acquitted, on the charge of vagrancy. That trial and acquittal were had on May 2, 1883. The testimony of the witness on that trial was in substance and effect the same as that given on this trial, and related to and covered the same period of time. The witness was also a witness against the defendant when she was, on the third day of July, 1883, tried before the mayor’s court, and acquitted, upon the charge of unlawfully keeping a disorderly house. The testimony given by the witness on that trial was. the same in substance and effect as that given on this trial, and covered and referred to the same period of time.</p> <p>The testimony of Pat Sheehan, W. B. Maddox, W. H. Kamsay and Pat Mullen, witnesses for the State, was the same in substance and effect as that of the witness Overand.</p> <p>The defendant then introduced the following evidence:</p> <p>“ Complaint filed in mayor’s court of the city of Dallas, on the twenty-first day of May, 1883,' and the verdict of the jury thereon, which complaint and verdict read as follows:</p> <p>“In Mayor’s Court, City of Dallas:</p> <p>“The State of Texas, )</p> <p>“County of Dallas. f</p> <p>“Personally appeared before me, W. L. Cabell, Mayor of the City of Dallas, Pat Mullen, of lawful age, who, after being duly : sworn, deposes and says that Annie Wilson, in the city of Dallas and State of Texas, on the twenty-first day of May, A. D. 1883,. i was unlawfully a vagrant by being then and there a common prostitute, contrary to the form of section 2 of an ordinance of said city, passed.by the city council on the seventeenth day of March, if 81, and against the peace and good order of the city of Dallas.</p> <p>“Pat Mullen.</p> <p>“Sworn to and subscribed before me this twenty-first day of May, A. D. 1883. ■</p> <p>“W. L. Cabell, Mayor.”</p> <p>“We, the jury, find the defendant not guilty.</p> <p>“ V. F. Pace, Foreman.” ■</p> <p>.The judgment of the said mayor’s court on said verdict was as follows:</p> <p>“Hay 22, 1883.</p> <p>“ City of Dallas "j</p> <p>“v. [ “This cause continued till May 38, 1883,</p> <p>“ Annie Wilson. f and jury called for by defendant.”</p> <p>“Vagrancy. J</p> <p>“May 38, 1883.</p> <p>“ This case called for trial. Thereupon came the defendant and called for a jury. Thereupon a jury was impaneled and sworn. After hearing the evidence the jury returned their verdict ‘not guilty.’ Defendant discharged.”</p> <p>The defense then read in evidence the ordinance of the city of Dallas defining and punishing vagrancy as follows:</p> <p>“An Ordinance defining and punishing vagrancy.</p> <p>“ Section 1. Every vagrant found in the city of Dallas shall, upon conviction, be fined in any sum not exceeding ten dollars.</p> <p>“ Section 3. The following persons are vagrants within the meaning of the preceeding section: * * *</p> <p>“4. * * A common prostitute. * * * *</p> <p>“Section 4. That this ordinance take effect,from passage and publication.</p> <p>“Approved March 17, 1881.</p> <p>“John J. Good, Mayor.</p> <p>“Attest: J. B. Hereford, Secretary.”</p> <p>The defense then introduced in evidence the following complaint, filed in the mayor’s court of the city of Dallas, on the twenty-seventh day of June, 1883, with the verdict on the same:</p> <p>“ In the Mayor’s Court, City of Dallas- “ The State of Texas, )</p> <p>“Countyof Dallas.” 1</p> <p>“Personally appeared before me, W. L, Cabell, mayor of the city of Dallas, J. P. Keehan, of lawful age, who, after being duly sworn, deposes and says that Annie Wilson, in the city of Dallas, and State of Texas, on the 37 day of June, A. D. 1883, did unlawfully keep a disorderly house, the same being then and there kept by her for the purpose of public prostitution, and as a common resort for prostitutes and vagabonds, contrary to the form of section 1 of an ordinance of said city, passed by the city council upon the 13th day of June, A. D. 1883, and against the peace and good order of the city of Dallas.</p> <p>“J. P. Keehan.</p> <p>“ Sworn to and subscribed before me this the 27th day of June, A. D. 1883.”</p> <p>“W. L. Cabell, Mayor.”</p> <p>“ We the jury, find the defendant not guilty.</p> <p>“Geo. S. Fuqua, Foreman.</p> <p>“ July 3d, 1883.”</p> <p>The following judgment on said verdict was then read in evidence by the defendant:</p> <p>“ June 28th, 1883.</p> <p>“ City oe Dallas, ] Continued till June 30th, 1883.</p> <p>v.</p> <p>“Annie Wilson. f June 30th, 1883. Continued till</p> <p>“ Keeping Disorderly House. J July 3, by consent.</p> <p>“July 3, 1883. This case being called for trial, thereupon came the defendant and plead £ not guilty.’ Special plea, former trial on the 19th of April in the county court. Plea Us pendens, that two suits were pending in the county court when this suit was brought. Prosecuting attorney’s return on demurrer to plea of former trial on the 19th of April. Answer to plea of former trial on 28th of May. Petition moved to change the date of filing complaint from 13th to 27th. Motion sustained, change made. Demurrer sustained to special plea of former trial April 19th, in the county court, and to the special plea of former trial on the 28th day of May, 1883, and also to plea of Us pendens. The jury returned a verdict of £ not guilty,’ and the defendant was discharged. * * * *</p> <p>“ W. L. Cabell, Mayor.</p> <p>£l<Attest: J. T. Carter, Act’g Clerk.”</p> <p>The defense then read in evidence an ordinance passed by the city council of the city of Dallas, on the thirteenth day of June, 1883, entitled, “An ordinance defining disorderly houses, and punishing the keepers of the same,” approved June 13, 1883; also sections 2, 21, 7 and 62 of the amended charter of the city of Dallas, entitled, “An Act amendatory of an act approved August 9, 1876, entitled £ an act to incorporate the city of Dallas, and grant a new charter to said city,’ approved March 3, 1883.”</p> <p>The motion for new trial raised the questions discussed in the opinion</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>The conviction in this case was for the theft of sixty dollars, the property of' James Sullivan, in Bexar county, Texas, on the thirteenth day of February, 1883. The punishment awarded was a term of five years in the penitentiary.</p> <p>'James Sullivan was the first witness for the State. He testified that about ten or eleven o’clock on the morning of February 13, 1883, he went into Major Lerick’s saioon, on the Alamo plaza, in the city of San Antonio. He met several gentlemen in the saloon, and they took several drinks Together. The party took seats in the room west of the bar room. Witness called foi drinks for the crowd. Having dranic, the party talked togethei for some time, and the witness called for a second round. When these last drinks were served the oar keeper demanded pay foi the drinks served. Defendant told him that he need not be in . Such a hurry for his pay. The bar weeper repeated his demand, haying that he had to wait on customers, and had no time to fool. Witness thereupon took his purse from his pocket. The bar ke_eper took the purse from witness’s hand, opened it, and turned it upside down on the table. Two five dollar gold pieces. rolled out. One of these the bar keeper replaced in the pocket book, which he handed back to the witness, and the witness re-' placed it in his pocket. The bar keeper took the other gold piece! to the bar, deducted the price of the drinks, and returned to the witness the change in silver, which the witness put in his coat pocket—not the pocket in which he had put his purse. His coat: was an ordinary sack coat, with a pocket on each side. When returned to his pocket the purse contained a five dollar gold' piece, one ten and nine five dollar greenback bills—in all, sixty I dollars. The party remained about the saloon, drinking and' talking, until the afternoon. When the party dispersed, the; witness walked to the water closet in the back yard of the sa- ¡ loon. Defendant followed, and while the witness was standing in the closet urinating, the defendant came up to his back, | ran his hand into witness’s pocket and filched the purse and1 money. Witness turned and told him to let that money alone,: that it was his, witness’s. Witness owned the money, and de-, fendant took it without his consent. No one was in the back | yard at the time but witness and defendant. When he went' back into the saloon witness told the parties present that he had ■ been robbed.</p> <p>Cross-examined, the witness said that he was not the only i man in the bar room that day. The defendant and another; man were sitting at the table with the witness. Witness saw; two soldiers about the bar room, but did not accuse them of ' the theft, because he knew they did not commit it. The defendant and others were in the saloon when the witness went there. ¡ Quite a number of people passed in and out of the bar room while the witness sat there. Witness was drinking, but was1 not drunk. Witness did not tell the bar keeper who got hi$' money, as he and defendant appeared to be good friends, and ■ witness had no friend present. The witness did not state before1 justice Adam, on the preliminary examination of the case, that-he did not know who got his money. A man who looked very I much like the defendant—shaved and dressed like him—sat by, the defendant during that trial, and witness was asked which of the two took his money. Witness sat at some distance from the two men, was suffering from cold settled in his eyes, and an- ¡ swered that he could not tell which of the two rubbed him at I that distance. The counsel for the defendant then (on the ex- ■ amining trial) came near the witness and asked him if the man who stole the money did not have a mustache about the color of his, the counsel’s, mtistache. Witness replied that the mustache of the man who stole the money was not so red. Witness was sworn on the examining trial. He could not say whether or not the signature now exhibited was his. He could not write, and he signed documents with a mark. The signature exhibited was with a mark, but witness did not know whether or not he made it. The witness received the nine five dollar bills described on the evening before, for work he had done for the railroad (the Sunset) as a rock mason. Witness could not find Captain Hughes, the detective, that evening, but complained to him next day about being robbed. He could not give Captain Hughes the man’s name, for he did not know it. Hughes told him to go to Adam and make complaint. Adam refused to allow the complaint, because witness could not give the defendant’s name, but sent an officer with witness to make the arrest if witness identified the man. The bar keeper had refused to give the witness the defendant’s name. They found the man— the defendant. Witness pointed him out, and the officer arrested him. Witness was not mistaken. The defendant is the identical man who took the money. While witness and defendant were sitting in the side room, a great many customers passed into the bar room and out, but very few came into the side room. When the witness was paid the nine five dollar bills on the evening before the theft by the railroad officials, he had a twenty dollar gold piece and the ten dollar bill.</p> <p>Captain T. J. Hughes testified that he was first assistant city marshal, and his special duty was to hunt up stolen property. On the morning of February 14, 1883, J. Sullivan came to his office and reported that he had been robbed the evening before in Major Lerick’s saloon. He described the money lost exactly as he described it on this trial, and said that he did not know the name of the man who took it, but would know him if he were to see him. Witness sent officer Abby with Sullivan to Mr. Adam’s office to file complaint, and went himself to a barber shop near. While he was being shaved, Abby brought the defendant Roddy to witness and said that he arrested him on Sullivan’s identification. Witness told him to take Roddy to his office and wait until he got there. When witness got back to his office Roddy told him that he had no money. Proceeding to search him, witness found on.,his person four dollars and a half in silver and nine five dollar greenback bills. Witness then sent Roddy to jail, and Sullivan went to Adam’s to make complaint.</p> <p>Cross-examined, the witness said that the arrest was made on the morning of. the day after Sullivan claimed to have been robbed. Witness searched the defendant in the presence of Sullivan and Charles Abby. As soon as witness discovered the nine five dollar bills Sullivan claimed them. When Sullivan first complained to the witness he described the man who robbed him, as well as the money lost. Witness did not find a five dollar gold piece and a ten dollar bill on the defendant. The defendant’s general appearance answered well to the description of the man as given by Sullivan. At this point the State rested.</p> <p>Henry Delespin was the first witness for the defendant. He testified that he knew Sullivan and Roddy, and saw them both at Major Lerick’s saloon on the thirteenth day of February, 1883. He had known the defendant for eight or nine years, during which time defendant’s reputation for honesty was good. Witness was bar keeper at Lerick’s saloon. Sullivan came into that saloon a little before noon on the day in question, and remained there drinking until late in the afternoon. He and others sat together in a back room. Sullivan called for drinks, which witness took to the table and demanded payment. Sullivan put his hand in his pocket, and was so slow that witness became impatient and told him he must go and attend to the customers and had no time to fool with him. He, witness, then took Sullivan’s purse, which he had drawn out, and shook two five dollar gold pieces out of it. Witness put one of them back into the purse, took his pay out of the other, and returned Sullivan the change. Witness then went back to his place behind the bar to attend to customers constantly coming in. Later in the evening the defendant came to witriess and said: “ Henry, 1 saw that soldier taking that change you gave that old man from his pocket.” A while after this the witness saw Sullivan go into the back yard. He came back presently and said that he had been robbed. Witness immediately went and searched the soldier, and found a dollar and a half in silver on him, which he said S alii van gave him. Sullivan denied it. Witness then searched Sullivan, and found that the pocket book was gone. Sullivan said that the soldier took it. The soldier searched—the other one was drunk and asleep—first said that the defendant gave him a dollar; then two, and then three dollars. Both sc.Lers were in the yard while Sullivan was out there. Ho one else was out there. When Major Lerick came witness informed him, and he sent for a police officer. Policeman Abby soon came, searched the soldiers, and found a dollar or so on one, and arrested one for being asleep and drunk. The other went to his quarters.</p> <p>Cross-examined, the witness said that the two soldiers were at the saloon drinking when Sullivan came. When witness opened Sullivan’s pocket book the defendant and others were sitting with him at the table. Witness saw a roll of greenbacks in the purse, but did not know the size of the bills nor how many there were in the purse. He did not know whether or not the defendant could see the roll of bills. Sullivan was very drunk. Witness searched the soldier immediately upon Sullivan’s return from the yard. Roddy helped Sullivan to get out of the door going into the yard, and helped him to get in again. Witness searched but one soldier—the one who was not asleep. Officer Abby searched both, when he came. Witness denied that, soon after the soldiérs were searched, he told Abby that he had searched the wrong man; that if he had searched defendant he would have found the money. Sullivan did ask witness defendant’s name, which witness did not tell him, but witness thought this occurred on the morning after the theft.</p> <p>J. D. Roberson was the next witness for the defense. He testified that on the thirteenth day of June, 1883, he was keeping the Favorite Saloon, on Commerce street, in San Antonio. Several days before the arrest of the defendant he was at witness’s saloon with a roll of fifty or a hundred dollars in greenbacks, which he wanted to exchange for gold. Witness let him have a twenty dollar gold piece. During the six or seven years the witness had known the defendant, his reputation for honesty was good.</p> <p>Cross-examined, the witness said that the defendant did not keep money with him. There was a gambling room over witness’s saloon, in which, however, the witness had no interest. The witness did not know what business the defendant followed at that time.</p> <p>S. A. Moody testified, for the defense, that he was not in San Antonio at the time of the alleged theft. A few days before witness left San Antonio, late in January, he met the defendant in Roberson’s saloon and gave him eight five dollar bills for two twenty dollar gold pieces. Defendant’s reputation for honesty, as witness had kno vn it for eight or nine years, was good.</p> <p>Henry Ansell testified that he was the book keeper at the Vaudeville theatre and bar. The defendant was employed at that bar for about three months, at a salary of sixty-five dollars a month. He left the employ of the Vaudeville some time in January, 1883, when the witness paitj him sixty odd dollars. "Witness had known the defendant since his first arrival in San Antonio, about a year before the arrest. His reputation for honesty had been good.</p> <p>Cross-examined,, the witness denied that he had ever said to any one that he paid the defendant only two or three dollars when he quit work, and that he did quit work in December, 1882. Witness kept the books. They were not now accessible. They belonged to the estate of Jack Harris, were locked up in the safe, and Billy Sims has the key.</p> <p>Justice of the peace Anton Adam testified that he held the examining trial in this case. Sullivan, in testifying for the State, first identified the defendant as the man who stole his money, then he said that he thought another man who sat near the defendant was the guilty party. Then he walked up near the parties and said: “My eyes are so sore I can hardly see, but I believe this (pointing to defendant) is the man.”</p> <p>Cross-examined, the witness said that the defense placed next Abe defendant a man cleanly shaved except the mustache, and dressed like the defendant. Sullivan’s eyes, at that time, were very sore, and it was evident that he could see only with great difficulty. Defendant and the man who sat next him favored considerably, except that the defendant’s mustache was the lighter. Counsel tried to get Sullivan to say that the mustache of the man. who robbed him was dark. Counsel then asked Sullivan to describe the thief, and his description suited the defendant exactly. It also suited the other man, except as to the color of the mustache.</p> <p>August Krawitz testified that he was guarding the defendant on the examining trial. When Sullivan was first told to identify the man who robbed him, he pointed out the man who sat beside the defendant.</p> <p>Cross-examined, the witness said that Sullivan’s eyes, at that time, were very sore and inflamed, and he, Sullivan, complained that he could see scarcely at all.</p> <p>Charles Abby testified, for the State, in rebuttal, that he was a policeman. He was called in by Major Lerick to see about a reputed theft of money by two soldiers. Witness searched these soldiers carefully, and found a dollar and thirty-five cents on one of them, and nothing on the other, who was drunk and asleep. This last one he arrested for being drunk; the other he sent to quarters. Witness searched the premises unsuccessfully for the money. When witness returned from the calaboose, whither he had taken the drunken soldier, to prosecute further search, Henry Delespin, the bar keeper said to him: “You arrested and searched the wrong parties. If you had arrested the man we spoke of arresting the other day as a vagrant, you would have got the right man, and might have found the money.” The defendant was the man alluded to as the man whose arrest as a vagrant was discussed a day or two before.</p> <p>Witness met Sullivan at police headquarters next morning, and was sent with him to Mr. Adam’s to file complaint. Adam refused to receive complaint unless Sullivan could name the party; which Sullivan said he could not do, though he said he would know the party on sight. Adam then directed witness to go with Sullivan and arrest the party if identified. They met the defendant at the corner of Main Plaza and Commerce street, and Sullivan whispered to witness: “There is the man now.” Witness stepped up to the defendant in a crowd and arrested him. Defendant said: “ I know what it is for.” Witness then took the defendant to Captain Hughes in a barber shop; thence to Hughes’s office, where Hughes afterwards searched him. Sullivan then went to Adam and filed complaint.</p> <p>Cross-examined, the witness detailed the result of the search of defendant as Captain Hughes did. He had no ill will towards defendant though once, when he, witness, was a hackman, they had some words. He drove the defendant and a fast woman named Alice to the train early one morning. When they went to get out witness discovered that one of them had expectorated over the seats. He asked who did it. Defendant said that he did. Witness told him that he must not spit on the seats. Defendant replied that he would do as he d—d pleased in the hack. Witness replied that “that if it d—d pleased him to spit on the seat, then he would not do as he d—d pleased in that hack,” This was the extent of the only disagreement that had ever occurred between witness and defendant.</p> <p>The motion for new trial was based on the issues discussed in the opinion.</p>

Tried below before the Hon. W. O. Bead, County Judge. The opinion sufficiently discloses the case. The penalty im - posed was a fine of ten dollars.

<p>Appeal from the County Court of Wilbarger. Tried below before the Hon. J. P. Orr, Special County Judge.</p> <p>The opinion discloses the case.</p>

<p>Appeal from the District Court of Anderson. Tried below before the Hon. J. J. Perkins.</p> <p>The conviction was for an assault with intent to murder one S. E. Montgomery and one J. M. Whiteley, in Palestine, Anderson county, Texas, on the twenty-first day of September, 1882. The penalty awarded was a term of five years in the State penitentiary.</p> <p>J. M. Whiteley was the first witness for the State. He testified in substance that on the night of September 21, 1882, he and Montgomery left their boarding house, west of the railroad track, in Palestine, going to town. After going to several places, they entered Amson’s saloon,- remaining there, with others, until near eleven o’clock, when, arm in arm, they started to their boarding house, a quarter of a mile distant. They took the line of the railroad track as being the shorter route, as they and others had often done before. They reached a point beyond the switches, and were nearing the water tank, when some one to their right called out: “Where are you going?” Montgomery, who was nearest, replied: “It is none of your business.” A few steps further on witness and Montgomery encountered two men—the defendant, with a dark, or burglar’s, lantern, and Mr. Hill, with a white lantern. Defendant turned his light on Montgomery’s face, and almost simultaneously brought a pistol down in his right hand, saying: “ I will show you whether it is any of my business.” Witness at that time had an umbrella Under his left arm, and his right akimbo, the hand resting on his breast. Montgomery’s left hand was in witness’s right arm. As defendant brought down the pistol, Montgomery jerked his hand from witness’s arm and caught at the pistol. Defendant fired instantly, the ball passing into Montgomery’s arm above , the elbow and coming out at-the shoulder, powder burning the coat. Montgomery stepped to one side and said: “I am shot.” Witness stepped to the other side of defendant, when defendant again fired, striking witness in the left wrist. As the witness was passing on from the defendant, the defendant fired again, striking witness in the left -knee from the rear, and bringing him to the ground. The defendant then said: “ I am the watchman here, and I will have you understand that when I ask who you are, you must tell me.” He then walked off.</p> <p>Neither the witness nor Montgomery were armed at that time. Nothing more ■ than stated by witness was said at the time. Defendant did not say that he was watchman until after he had shot witness and Montgomery. Witness knew that there was a night watchman for the freight cars, but at the time of the shooting he and Montgomery were forty or fifty steps from those cars, going south. The cars stood west. Witness did not then know defendant nor Hill, nor did they know him. Witness was taken home by some parties he did not know, after lying on the ground for some time. ■ Witness now uses crutches, and supposes he is a cripple for life. Witness was an engineer em-' ployed at Dilley’s foundry, Montgomery a locomotive engineer' in the employ of the railroad company.</p> <p>S. E. Montgomery, the "next witness for the State, testified substantially as Whiteley did, and the State rested.</p> <p>The defense first introduced J. C. Hill, who testified that he" and defendant were guards at the Palestine railroad yards, and were on duty the night of the shooting. Defendant and the witness were near the tank when they heard two men approaching, talking loudly and noisily as if drinking. It was dark and the men had no lights. Witness had no light. When within' twenty or thirty feet of them che defendant called out: “Who are you, and where are you going?” Montgomery replied: “ It is none of your d—d business.” Witness suggested to defendant that they be permitted to pass. Defendant said: “ No, we ought to see who they are, and what they are doing here.” Witness then stepped aside and defendant threw the light of his dark lantern on the faces of the men and said: “I am the guard here, and it is my business to know who you are and what you are doing.” Montgomery replied: “D—n you, I’ll show you who we are,” making a quick movement and passing his hand to his right hip pocket. Witness could not see his left hand. At this time a shot was fired; another instantly followed, and the parties scattered and separated. A third shot was then fired, and Whiteley fell to the ground, just beyond Montgomery, who did not fall. Defendant went for Mr. Calloway, who with others came, and shortly the wounded men were taken away. Witness was armed but did not draw his pistol.</p> <p>Policeman Frank Durham testified, for the defense, that he saw Montgomery and Whiteley at Amson’s saloon a short while before the shooting. Montgomery was getting pretty full of intoxicating liquor when he and Whiteley left. When witness heard the shooting he went rapidly to the depot and found that defendant had shot Montgomery and Whiteley. He arrested defendant.</p> <p>W. P. Calloway,, general freight agent in charge of the railroad yards at Palestine, testified, for the defense, that the defendant was a guard appointed to protect the yards and freight cars of the railroad. Witness was in his office when the shooting occurred. The defendant was the first to report the occurrence to him. Defendant suggested that witness go to the men while he went for a doctor, which was done. Defendant made a statement of the occurrence to the witness. This statement, however, the witness was not permitted to repeat. The wounded parties were being taken off when witness reached them.</p> <p>Doctor G. S. West testified, for the defense, that he was called by the defendant to see the wounded men. There were no. indications that the wounded men were drunk or had been drinking.</p> <p>Mike Sano, bar tender at Amson’s saloon testified, for the defense, that the two wounded men drank several schooners of beer at the saloon before the shooting, but neither of them was drunk.</p> <p>The motion for new trial raised the questions involved in the opinion.</p>

<p>1 Continuance—Diligence —Failing to show the exercise of due diligence in the effort to secure the attendance of the alleged absent witnesses, an application for a continuance is properly refused.</p> <p>2. Indictment—Evidence.—An indictment for swindling having unnecessarily described the money obtained by fraudulent representations to be “good, lawful and current money of the United States of America,” it was essential to the validity of the conviction that the money be proved as alleged.</p> <p>3. Swindling—Fact Case.—See the opinion in externo for evidence held insufficient to sustain a conviction for swindling.</p>

<p>1. Theft—Indictment—Variance.—The true name of the owner of the alleged stolen property was Sam. McCasIand. The indictment alleged his name to be Sam. MeCassling. He was shown to have been equally well known by both names. Held, that the variance was not material.</p> <p>2. Same—Voluntary Return of Stolen Property, such as under the provisions of Article 378 of the Penal Code will operate to reduce a theft from the grade of felony to misdemeanor, must be made under the following circumstances: 1. The return must be voluntary, that is, willingly made; not made under the influence of compulsion, fear of punishment or threats. If, however, it be made under the influence of repentance for the crime, and with the desire to make reparation to the injured owner, it will be voluntary, although it may also be influenced by fear of punishment. 2. It must be made within a reasonable time after the theft, and before prosecution for the theft has been commenced. 3. It must be an actual, not merely a constructive return of the property into the possession of the owner. 4 The property returned must be the . identical property, unchanged and all of it, that was stolen. See the opinion in extenso for a review of the authorities on the doctrine.</p> <p>3. Same—Charge oe the Court—Case Stated.—In this case the defendant drove the stolen animal about ten miles from its range, and attempted to sell it. Pending negotiations of sale, it was discovered by parties acquainted with it, when the party with whom the sale was being negotiated told the defendant to turn it loose, and that they would get it at another time. In a few days the owner told the defendant that all he wanted was the animal, and that if he would drive it back home, he, the owner, would not prosecute him, the defendant. Soon after this the owner found the animal on its accustomed range. Held, that under such circumstances the court should have given in charge the issue as to the voluntary return of the animal by the defendant; that, while not strictly a return of actual possession, it was such as was demanded by the owner, and therefore sufficient.</p> <p>4. New Trial—Newly Discovered Evidence.—See the statement of the case for the substance of affidavits in support of a motion for new trial based upon newly discovered evidence, held sufficient to authorize the award of a new trial.</p>

<p>1. Assault with Intent to Rape—Evidence.—In order to sustain a conviction for assault with intent to commit rape, the proof must show that the assault was committed with the specific intent to rape. Ho other in- ' tent will suffice. For instance, a conviction for such offense is not supported by proof that the accused assaulted a woman with the intent of having improper connection with her, without the use of force, nor without her consent.</p> <p>2. Same—Burden of Pro of—-Charge of the Court.—See the opinion in extenso for a charge of the court which, though couched in the language of the Code, and correct in the abstract, is held error, inasmuch as its effect is to impose upon the defendant the burden of proving himself innocent of any unlawful intent to perpetrate any offense.</p> <p>3. Same—Fact Case.—See the statement of the case for evidence held insufficient to support a verdict for assault to rape, inasmuch as it fails to establish the essential element of intent.</p>

Habeas corpus on appeal from a judgment refusing bail on a hearing in chambers by the Hon. T. B„ Wheeler, judge of the twelfth judicial district. The appellant was held under a mittimus, issued by a justice of the peace, charging the murder of William Gilson. The case was opened by the submission of the testimony adduced on the examining trial. A. J. Roy was the first witness sworn for the State on that trial.

Tried below before the Hon. J. R. Konnard. The conviction in this case was for the burglary of the house of J. L. Smith, with the intent to commit theft. A term of two years in the penitentiary was the penalty imposed. J. L. Smith was the first witness for the State. He identified the defendant on trial as Edgar Ross, the party charged in the indictment.

Tried below before the Hon. F. J. McCord. The indictment in this case was filed on the fifth day of October, 1881. It charged the appellant with the murder of one G. E. Honeycut, in Henderson county, on the twenty-fourth day of November, 1875. The conviction was-for murder in the second degree, and the punishment awarded was a term of five years in the penitentiary. W. E. Honeycut was the first witness for the State.

Tried below before the Hon. J. P. Orr, Special County Judge. The conviction was for an aggravated assault and battery, and the penalty imposed was a fine of fifty dollars.

Tried below before the Hon. W. A. Blackburn. This was a conviction for the wilful disturbance of religious worship. A fine of twenty-five dollars was the penalty imposed. W. 0. Shugart, for the State, testified that he was present at what the people called preaching at a school house near Corwin, Burnet county, on the third Sunday in March, 1883.

Tried below before the Hon. C. C. Potter. Held: the witness could not say how firmly, in the deceased’s hand. Three fresh gunshot wounds were on the body of the deceased, two in the breast and one in the head, the latter a glancing shot, ranging from the front back.

Tried below before the Hon. W. E. Collard. The conviction was for the embezzlement of a horse, the property of one Gustave Gross. The penalty awarded the appellant was a term of five years in the penitentiary. Gustave Gross was the first witness for the State. He pronounced his name with a gutteral sound, between Gross and Gruss. On or about the first day of March, 1883, he was the proprietor of a livery stable in the town of Taylor, Williamson county, Texas.

Tried below before the Hon. T. S. Spencer, County Judge. The indictments in these cases charged the appellants, V. R. Springer, Lee Guthrie and Frank Waller with the offense of keeping a disorderly house, as a common resort for prostitutes, in Uvalde county, Texas; the one alleging that the said house was so kept on the fifteenth day of January, 1884, and the other that it was so kept on the seventeenth day of January, 1884.

Tried below before the Hon. A. S. Walker. The indictment in this case charged that in the county of Travis, State of Texas, on the nineteenth day of January, 1883, the appellant killed and murdered one Joseph Henderson, by stabbing him with a knife in the face and temple. The trial resulted in the appellant’s conviction of murder in the second degree, and a term of five years in the penitentiary was the punishment assessed. W. B. Hawkins was the first witness for the State.

Tried below before the Hon. Jo. Abbott. The indictment charged the theft of two horses, the property of H. W. Keiningham, in Johnson county, on the thirtieth day of July, 1883. The trial resulted in the appellant’s conviction, and his punishment was affixed at a term of five years in the penitentiary. H. W. Keiningham was the first witness for the State. He testified that he had long been a resident of Ellis county, Texas. In 1883 the witness owned a black mare and colt.

Tried below before the Hon. W. 0. Read, County Judg. The conviction in tlíis case was for gaming, and the penalty imposed was a fine of ten dollars. The opinion sufficiently discloses the case.

<p>Appeal from the District Court of San Jacinto. Tried below before the Hon. E. Hobby.</p> <p>The conviction in this case was for the burglary of the house of A. R. Day, with the intent to commit theft, and the penalty imposed was a term of two years in the penitentiary.</p> <p>In connection with other questions raised on appeal, besides the validity, of the indictment, this court, at a previous day of the term, considered the sufficiency of the evidence to support the conviction. The judgment was affirmed without a written opinion. The opinion which follows was rendered on a motion for rehearing.</p>

Tried below before the Hon. E. R. Kone, County Judge. The opinion discloses the nature of the case. The punishment imposed was a fine of twenty-five dollars.

Tried below before the Hon. E. Lewis. This appeal is from a final judgment on the forfeiture of the bail bond of William Watkins, bailed under a mittimus charging him with theft of property over twenty dollars in value. Five hundred dollars was the amount of the bond and judgment.

Error from the District Court of Jack. Tried below before the Hon. A. J. Hood. The writ of error in this case is prosecuted from judgment final upon the forfeiture of the bond of Thomas Pickett, bailed in the sum of one thousand dollars on the charge of cattle theft,

<p>1. Manslaughter,—Charge of the Court—Practice.—When the evidence adduced on a trial for murder tends to raise the issue of manslaughter, it is the duty of the trial judge to charge the law of that offense, regardless of his own opinion as to whether or not such evidence will justify a conviction for manslaughter.</p> <p>3. Same.—Habeas Corpus is available to a defendant whose constitutional right to a trial in due course of law is withheld from him an unreasonable length of time.</p>

' Tried below be- fore the Hon. Jo. Abbott. The conviction in this case was for the embezzlement of a finger ring, of the value of seventy-five dollars, the property of' Doc. Martin, in Johnson county, Texas, on the twenty-eighth . day of November, 1883. J. H. Keith was the first witness introduced by the State. He testified, in substance, that he knew the defendant, whom he pointed out in court.