Volume 17 — Texas Court of Appeals Reports

Tried below before the Hon. J. J. Perkins. The appellants were jointly indicted for the murder of Eli Lowe and Kit Smith, in Sabine county, Texas, on or about the 1st day of December, 1883. They were jointly tried, and the appellant Fed.

A. J, Booty. The indictment charged the appellant with the murder of William Henry, in Harrison county, Texas, on the 20th day'of November, 1883. His trial resulted in his conviction of murder in the first degree, and he was awarded the death penalty. Doctor J. H. Taylor was the first witness for the State. He identified the defendant as Antony Walker, and testified that he knew William Henry in his life-time.

<p>1. Practice—Theft.— It'is the settled law of this State that, under an ordinary indictment for theft, a conviction can be had on proof that the taking, though with the owner’s consent, was obtained by false pretext, or with intent to deprive the owner of the value of the property and appropriate it to the use and benefit of the taker.</p> <p>2. Same.— To constitute theft under the statute of this State, the taking must be wrongful, so that if the property came into the possession of the person accused, by lawful means, the subsequent appropriation of it is not theft; but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete. In the latter event the false pretext whereunder the possession was obtained, and the intent, must be established by competent proof.</p> <p>3. Same — Intent.— The felonious intent is the very gist of the offense, and is essential to the crime of theft in all its phases, and this intent must exist at the very time of the taking; no subsequent felonious intent will render the previous taking felonious. Note the opinion for a full exposition of the rule that, in order to constitute horse theft where the original possession of the animal was lawfully acquired, it must be established beyond reasonable doubt that the fraudulent intent existed at the very time that the property was acquired. See the opinion in extenso for an elaboration of the entire question.</p> <p>i. New Trial — Evidence.-— See the opinion and the statement of the case for evidence demanding the award of a new trial.</p>

Tried below before the Hon. C. G. White, County Judge. The information charged the appellant with the wilful and wanton killing of a cow, the property of M. A. Horton. He was convicted and fined in the sum of $6. M. A. Horton was the first witness for the State. He testified that sometime in September, 1883, the defendant came to him and told him that he had killed one of the witness’s cows, and told him which cow he had killed.

Tried below before the Hon. H. H. Cate, County Judge. A fine of $50 was imposed upon the appellant, under a conviction for wilfully obstructing a public road. Bias Wells was the first witness for the State. He testified that he was the constable of precinct number five, Wood county, Texas, and lived at Hawkins.

Tried below before the Hon. Gustave Cook. The appellant was convicted of an assault with intent to murder one George Davis, in Harris county, Texas, on the 19th day of December, 1883. He was awarded a term of two years in the penitentiary as punishment. George Davis was the first witness for the State. He testified that, about midnight on the night of December 19, 1883, he was awakened by some one calling his name.

Tried below before the Hon. A. J. Hood. The indictment charged the appellant with the murder of P. R. Smith, in Tarrant county, Texas, on the 1st day of June, 1873. He was convicted of murder in the second degree, and his punishment was assessed at a term of five years in the State penitentiary. J. R. Law was the first witness for the State. He testified that he knew the defendant, and was acquainted with P. R. Smith, the deceased, in his life-time.

Tried below before the Hon. A, J. Booty. (On exchange with the Hon. F. J. McCord.) The indictment in this case charged the appellant, as a principal, with the murder of Charles Stevens, in Gregg county, Texas, on the 21st day of May, 1883. He was convicted, as such principal, of murder in the first degree, and was awarded the death penalty. The charging part of the indictment, referred to in the first headnote of this report, reads as follows: “ . . .

Tried below before the Hon. B. W. Himes. A conviction of murder in the second degree was the result of the appellant’s trial upon an indictment charging her with infanticide. Ten years in the penitentiary was the punishment assessed by the jury. W. S. ITunnicutt was the first witness for the State. He testified that he had known the defendant for a number of years.

Tried below before the Hon. B. W. Himes. The conviction in this case, assessing against the appellant a term of four years in the penitentiary as penalty, was for the theft of H. 0. Osborne’s yearling, in Falls county, Texas, on the 24th day of December, 1883. H. 0. Osborne was the first witness for the State. He testified that some time in September, 1883, he moved from Mustang Prairie to his present residence on Big Creek, in Falls county.

<p>1. Murder — Self-defense.— Upon the subject of how far self-defense is available to a slayer who provoked the combat or produced the occasion which necessitated him to kill his adversary in his own defense, a general rule is as follows: If he provoked the combat or produced the occasion, in order to have a pretext for killing his adversary or doing him great bodily harm, or engaged in a combat knowing that it might or would result in the death, or some serious bodily injury which might produce the death, of either party thereto, or if, by his own wrongful acts, he intentionally, with a view thereto, brought about the necessity of taking life, the killing will bo murder, no matter to what extremity he may have been reduced in the combat.</p> <p>2. Same — Charge of the Court.— See the opinion in extenso for a charge of the court which, when tested by the rule above announced, is incorrect because it fails to properly qualify the word “produces;” because, in authorizing the jury to determine, from the evidence, which of the combatants, in the first instance, was in the wrong, it does not confine the jury to the occasion of the homicide; and because it does not define the nature or quality of the wrongful act, a definition essential in view of the fact that all wrongful acts of a slayer will not deprive him of the right of self-defense,</p> <p>8, Same — Practice. — This court is not called upon to reverse a judgment of conviction because of an erroneous charge in the absence of a bill of exceptions thereto, or a proper special charge refused, unless, looking to the whole record, the court’s charge in its entirety, and the statement of facts, it becomes obvious that the rights of the accused were probably prejudiced. In this case the interests of the accused were protected by subsequent clauses of the charge, for which see the opinion in extenso.</p> <p>4. Same.— The charge complained of contains the following clause, which is objected to by the appellant: “. . . or by his own wrongful acts produces the necessity of taking his adversary’s life, in order to save his own, the law will not justify him.” Held, that the rule thus announced is correct, and has been sanctioned by the highest judicial authority in this State, and that the language in which it is expressed will tolerate no other construction than that the necessity was intentionally produced.</p> <p>5. Same — Manslaughter.—Note the opinion for a state of proof whereunder the trial court did not err in omitting to charge the jury upon the law of manslaughter.</p>

Eeeoe from the District Court of Franklin. Tried below before the Hon. B. T. Estes. The writ of error in this case was prosecuted from judgment final on the forfeiture of the appearance bond of Thomas Murphy, bailed under an accusation of aggravated assault and battery. The amount of the bond and judgment was $100.

Tried below before the Hon. W. H. Ford. The conviction in this case was for bigamy. The penalty assessed against the appellant was a term of two years in the penitentiary. The State first introduced in evidence a certified copy of certain, laws of the State of Michigan relating to the rite of marriage and its solemnization in that State, to which was appended the certificate of the Secretary of State of the State of Texas, as it is set out in the opinion.

Appeals from the District Court of Bosque. Tried below before the Hon. Jo Abbott. The first of these convictions (case ¡No. 1771) was for the theft of two horses, the property of Andrew Anderson. The conviction in the second case (No. 1772) was for the theft of one horse, the property of O. W. Cowen. The punishment in each case was confinement in the penitentiary for five years, the sentence in the last case being pronounced to commence at the expiration of the first term.

<p>1. Scire Facias — Practice.—Scire facias is insufficient as a citation if, 1, it fails to recite the presentment of an indictment (or complaint or information) ; 3, if it fails to recite the issuance of a copias; 3, if it fails to recite the arrest of the defendant; 4, if it fails to recite the execution of the bond or recognizance; 5, if it fails to recite the conditions of the bond or recognizance ; G, if it fails to recite the breach of such conditions; and 7, if it fails to recite the entry of judgment nisi. The scire facias in this case failing in all of these particulars, the defendant’s demurrer to the same should have been sustained.</p> <p>2. Same.—Judgment Nisi must show that the forfeiture was taken as required by law, and must state that the same “ will be made final unless good cause be shown at the next term of the court why the defendant did not appear.” Failing in this, the judgment nisi in this case was bad on general demurrer.</p> <p>3. Bail Bond.—Liability of Sureties on a bail bond expires with a second arrest and bail of their principal on the same indictment.</p>

Tried below before the Hon. J. E. Dillard, County Judge. The gravamen of the offense charged against the appellant in this case was that, for the purpose of extorting money from J. D. Stocking, he sent to the said J. D. Stocking a written letter to kill the said Stocking and destroy his property should he fail and refuse to pay the sum of money demanded.

Tried below before the Hon. J. S. Sherrell, County Judge. The information, being for malicious mischief, charged the appellant with the destruction of a certain hat, the corporeal personal property of John Dunaway. He was convicted and fined in the sum of §5.

Tried below before the Hon. L. D. Bradley, The conviction in this case was for the offense of sodomy, perpetrated on the body of a cow, in Navarro county, Texas, on the 10th day of March, 1882. A term of five years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. C. C. Potter. The conviction in this case was for the theft of $250, the property of Bailey Johnson, in Cooke county, Texas, on the 26th day of July, 1884.

Tried below before the Hon. L. D. Bradley. The indictment in this case, charging the theft of H. Hailey’s cow, in Navarro county, Texas, on the 25th day of October, 1882, was joint against the appellant and one John Bassett. The death of Bassett being suggested, the trial of the appellant was proceeded with, and resulted in his conviction, upon which he was awarded a term of two years in the penitentiary as punishment.

B. W. Dimes. The conviction in this case was for theft of a yearling, the property of Gib Hunter. A term of three years in the penitentiary was the punishment assessed. The opinion sufficiently discloses the dose, The motion for new trial raised the question discussed in the opinion.

Tried below before the Hon. B. W. Rimes. The indictment charged the appellant with the theft of a watch of the value of $100, the property of W. A. J. Hicholson, in Falls county, Texas, on tho 21st day of May, 1884. A verdict of conviction assessed the punishment at confinement in the penitentiary for a term of two years. Captain W. A. J. Hicholson was the first witness for the State. He testified that he was the proprietor of a saloon in Marlin, Falls county, Texas.

<p>1. Malicious Mischief— Statutory Repeal.— The offense defined by article 684 of the Penal Code consists in breaking, pulling down or injuring the fence of another without the owner’s consent, and the penalty prescribed is a fine of not less than ten nor more than one hundred dollars. An act was passed at the special session of the Eighteenth Legislature prescribing the punishment for the wanton and wilful cutting, injuring or destruction of fences. This act took effect on the 6th day of February, 1884, and was in force when the information in this case was filed, but not when the offense was alleged to have been committed. To be guilty of the offense defined by the last mentioned act, the party must wantonly, or with intent to injure the owner, wilfully cut, injure or destroy a fence, or part thereof, the property of another. The penalty prescribed is confinement in the penitentiary for not less than one nor more than five years. Held, that additional elements than those which enter into the first enter into the offense defined in the last mentioned act, and the effect of the latter is not to repeal the former act.'</p> <p>2. Same.— But, even though it were true that the offenses defined in the two acts are the same, and the penalty attached to article 684 was altered by the last mentioned act, such fact would not work a repeal of the first by the last act, the rule applicable being that prescribed by article 15 of the Penal Code. See the opinion in extenso for a quotation of the said section 15.</p>

<p>Appeal from the District Court of Gronzales. Tried below before the Hon. E. Lewis.</p> <p>The indictment charged the appellant and two others, E. S. Alley and Benjamin Lemmond, with the theft of fifteen head of neat cat-tie, the property of R. H. Floyd, in Gonzales county, Texas, on the' 10th day of January^ 1880. A severance being granted, the defendant Wright was first put upon trial, was convicted, and his. punishment assessed at a term of three years in the penitentiary.</p> <p>R. H. Floyd was the first witness for the State. He testified that he lived in Gonzales county, Texas, eleven miles southwest from the town of Gonzales, and four miles'from Wrightsboro. His ranche was in Gonzales county. He had cattle ranging in the counties of Gonzales, Wilson, Karnes, Victoria, Goliad and De Witt. The larger number ranged in Gonzales county. From the witness’s place to the Wilson county line the distance is some sixteen miles; to the Karnes county line about twenty miles, and about the same distance to the De Witt county line. Just prior to January, 1880, the witness lost quite a number of head of cattle. They were taken from their range without the consent of the witness. H. 0. Evans paid the witness for ten or fifteen head about March, 1880, Witness did not see those cattle. The defendant was familiar with the brands of the witness. lie marked cattle with the witness for eight or ten years prior to 1878. Mr. Granger was not the agent of the witness in Gonzales county, and at no time paid witness for the cattle involved in this prosecution, though he paid witness for others which he, as the witness’s agent in Wilson county, had previously sold. Witness’s power of attorney to Granger authorized him to handle witness’s cattle as his own. The power of attorney to Granger did not limit him as to territory, but it was understood that Granger was only to control the witness’s cattle within Granger’s own range. Witness may possibly have had some cattle in Atascosa county, but he never sent his cattle out west by Granger or any one else. Witness had seen cattle in the 20 brand in De Witt county which he did not own. Fred House, Lawrence Brass and Alex. Grayer had authority to control the witness’s cattle. The power of attorney conferring this authority has never been revoked. Witness could not say that he had ever seen the cattle the defendant is charged to have stolen.</p> <p>The State here introduced the record of marks and brands, and the records of transfers of stock in several brands, including one from W. II. Seat by G. W. L. Fly, agent, which among others conveyed to Floyd the 20 brand.</p> <p>G. W. L. Fly testified, for the State, that W. H. Seat was his brother-in-law, and that he, witness, had absolute control of all property owned by Seat in Texas. Ilis power of attorney, at the time he executed the bill of sale to Floyd, conveying the “20” brand of cattle, only authorized him to sell lands. Seat at that time was either in Europe or ¡New York.</p> <p>H. C. Evans testified, for the State, that in ¡March, 1880, ¡R. II. Floyd and ¡R. A. Houston gave him a power of attorney to go west and recover cattle for them. On his way to the Laborita Creek in Atascosa county, witness got with John Sullivan, Drake, and John Brockman. Arriving at the Black Hills ranche, four miles from Bennett Musgrave’s ranche, witness f-jund a bunch of cattle in the possession of J. F. Foster, and from this bunch recovered fifteen head of Floyd’s cattle,— seven in the JOE. A brand, three in the IB — cross brand, and one or two in the 20 brand.</p> <p>Witness was here handed a bill of sale from himself, Brockman, Sullivan and Drake to B. R. Fakes & Co., and asked to refresh his memory as to the brands he cut out of the herd. He testified that he sold the cattle mentioned in the bill of sale, with others, to Bennett Musgrave for B. R. Fakes & Co. Those cattle had their original brands counter-branded, and these counter-brands were not over two or three months old. They were likewise fresh branded in characters impossible to delineate in type. The cattle described were found in a herd of four or five hundred head. Witness could have made nearly all, if not all, of the brands without reference to the bill of sale he executed. The IB brand was on the sides of the animals and the cross on the hips. The original brands were in no way disfigured. Witness did not know which of the fresh brands mentioned by him was on Floyd’s cattle. Witness at no time saw the defendant in possession of the cattle. Witness and his party were drinking considerably when he first found the cattle. Witness testified in case number 2172, The State of Texas v. J. P. Wright and Simpson Alley. Witness got the Houston and Floyd cattle at the same time and place. Witness’s testimony in this case and in case 2172 is substantially the same. He did not mention Floyd’s name when testifying in case 2172.</p> <p>Bennett Musgrave testified, for the State, that he lived in Atascosa county, Texas. He knew the defendant and Alley, Lemmond, Evans and Foster. In March, 1880, Evans took several head of cattle which Foster bought of the defendant from Foster’s herd, .and, as agent for Floyd and Houston, sold the same cattle to the witness for B. R. Fakes & Go. These same identical cattle were sold to Foster, with bill of sale, by the defendant, at the witness’s house, and in the presence of the witness, and the defendant received from Foster the purchase money for the same. Witness wrote the bill of sale, and the defendant wrote his own name and the names of Alley and Lemmond, as agent. Witness first saw these cattle, while on a horse hunt, in a bunch through which he rode. Defendant then offered to sell them to the witness. Charles Walker was then present. Witness next saw these cattle when he went to the Black Hills ranche to assist Foster receive them. Foster came from Massachusetts, and knew nothing about classifying cattle. Foster kept the cattle on the range until they were claimed by Evans. Some little time after that, defendant came to witness’s house, and witness, who then had the cattle in possession, showed him Evans’s bill of sale to him as agent of Fakes & Co. Defendant said that he had bought the cattle from Bill Williams, and had a bill of sale. He said that he herded the cattle at his father’s house, near Wrightsboro, in Gonzales county, and asked: “Why didn’t these d—d rascals claim them there? ”</p> <p>The witness wrote the bill of sale from the defendant to Foster, after which he handed the document to Foster and advised him to have it recorded in Atascosa county. Whether or not he ever had it so recorded the witness did not know. The witness was too hurried to examine the brands when he first saw the cattle. At that time the defendant said that he was negotiating the sale of the same cattle to a man named Dorsey. [Jpon the sale to Foster it was agreed that the defendant was to get the cattle together and hold them until Foster called for them. After the witness purchased the stock for Fakes & Co., some four or five head were proved away by other parties. This witness testified in case number 2172, The State of Texas v. J P. Wright and Simpson Alley, for the theft of Houston’s cattle. The recovery of the cattle, and all the incidents preceding, so far as witness knew, was a single transaction, and the testimony of the witness in' the two cases was substantially the same. When the witness first saw the cattle in charge of the defendant, the defendant claimed all the brands as his. The marks on the cattle had evidently been changed about the time the several fresh brands were put on. When witness told the defendant that Evans, Brockman, Sullivan and Drake had sold the cattle to Fakes & Co., the defendant said that they had no right to make such sale. This conversation came about in a discussion with regard to the defendant’s title to a white steer which Evans had sold to Fakes & Co. as branded T 8. The defendant said that the brand was not T 8, but was T B. When the steer shed his long hair, the defendant proved to be right about this brand. This steer defendant claimed to have purchased from Jeffries in Gonzales county.</p> <p>Charles Walker testified, for the State, that, on November 9,1879; he was employed by the defendant to drive some cattle from Nance’s pasture in Hays county to Laborita in Atascosa county. These cattle were fresh branded in the characters spoken of by other witnesses, and were claimed in part by the defendant, his wife and daughter, in part (another brand) by Lemmond, and in part (still another brand) by W. A. Anderson, the defendant’s brother-in-law.. At the Conquista, some forty or fifty head in still another brand were put in the herd by Lemmond and Alley as theirs and the defendant’s partnership property. Alley" and Lemmond turned back at the Conquista, and the defendant and the witness proceeded to Laborita with the cattle, arriving there on December 20 or 21,1879-Witness remained with the cattle at Laborita until February 9; 1880. Defendant stayed but a day or two at Laborita, when he started home. He returned in about ten days with Alley and Lemmond, and one of the three, in the presence of the other two, told the xvitness that he had put more cattle in the herd. Witness was present when the defendant offered to sell the cattle to Musgrave. Witness noticed some familiar brands in the herd, spoke to defendant about them, and advised him to move the cattle further west. He replied that the cattle belonged to him; that he had bought them from Bill Williams, “out east.” Witness knexv the brands of Houston and Floyd. He could not, however, remember that any of these cattle were in Floyd’s brand, and in fact could remember no more than that the brands were familiar to him. Witness had testified about this herd of cattle before, but said nothing about, Floyd’s cattle.</p> <p>The cattle in the familiar brands spoken of, the witness was sure-, were not in the herd taken from Major Nance’s pasture in Hays county, by the xvitness and the defendant. These cattle were driven to Atascosa county along the public road in the day-time, and the public road xvas never abandoned except to graze and water. The cattle were driven through the edge of the toxvn of Seguin, and across the river at the ford. The defendant took horses east and traded them for cattle. All the cattle brought to the Conquista and put into the herd by Lemmond and Alley were eastern cattle-The Conquista is about fifty miles from Wrightsboro, and the point on the Laborita to which the herd, about three hundred head, were taken, xvas about one hundred miles from Gonzales county. The town of Seguin, in Guadalupe county, xvas the nearest approach to Gonzales county made by the xvitness and defendant in driving the cattle to Atascosa county. The witness saw no cattle added to the herd after it was turned loose in Atascosa county. Defendant drove ’the cattle mentioned from Gonzales county to Dance’s pasture. Witness saw no cattle in the herd in Floyd’s brands, and, though it was possible that the herd may have contained some and witness not known it, it was hardly probable.</p> <p>John Dorsey testified, for the State, that in February, 1880, he saw the defendant and Alley, Lemmond, Walker and a negro in Atascosa county in charge of a herd of three or four hundred head of cattle. The cattle were fresh branded in the brands described by previous witnesses. The defendant talked freely with witness about the cattle, and always said that they came from Gonzales county near Wrightsboro. Tie, defendant, said that he wanted to trade two year old heifers for saddle ponies.</p> <p>A number of persons had cattle in the same range in Atascosa county in which the defendant kept these cattle under loose herd. Witness and defendant often rounded up these cattle for persons stock hunting. The defendant herded his cattle on a purely public place, which was crossed by two public roads, and where the grass was better than elsewhere. It was no place in which to attempt to conceal cattle. There were many other places in Atascosa county in which cattle could have been securely hidden. Witness noticed no difference in the size of the defendant’s herd from first to last. Witness knew of no one other than the defendant who claimed the fresh brands referred to.</p> <p>J. L. Floyd testified, for the State, that he and R. H. Floyd were brothers and partners. Witness gave no one his consent to take the cattle involved in this proceeding. He executed no powers of attorney to any one. E. H. Floyd was the general manager of the firm’s business, and executed all powers of attorney.</p> <p>E. TI. Floyd, recalled, testified that he bought the cattle in the JOE. A brand from J. M. McCoy, and received from McCoy a bill of sale, which has been lost. McCoy had previously sold many cattle in that brand. Witness knew a Bill Williams who lived near Eancho, Texas. Williams was never an agent of the witness, unless he was so appointed by some one of witness’s authorized agents under their power of substitution.</p> <p>The defense here put in evidence the indictment and verdict of not guilty in case Ho. 2172, The State of Texas v. J. P, Wright and Simpson Alley.</p> <p>The motions for new trial, original and amended, raised the questions discussed in the opinion, and, in addition, assailed the charge of the court, and denounced the verdict as unsupported, either by the law or the evidence.</p>

<p>L Practice — Jury Law — Challenge — Case Stated.— The right of peremptory challenge is not of itself a right to select, but a right to reject jurors. It excludes from the jury those whom the prisoner objects to, until he exhausts his peremptory challenges. The right of challenge, therefore, lives not necessarily draw after it the right of selection, but merely of exclusion. It enables the prisoner to say who shall not, but not who shall, by him. The defendant in this case exhausted his peremptory challenges in striking names from the list furnished. Among the names remaining upon the list as chosen jurymen was that of one F„ When called to the box F. was found to be absent, and the defense insisted that he be brought in, because he had been chosen and the defendant’s challenges had been exhausted. Explaining the bill of exceptions the trial judge certified that the absence of the juror F. was occasioned by sickness, and that he ordered another juror called to complete the panel, who was accepted by the State, whereupon he notified the defendant that, if he was not satisfied, he would be accorded the right of challenge, and another juror would be substituted. The defendant and his counsel refusing to say anything, the panel was completed with the new juror. Held that, under the circumstances, the juror F. not having been impaneled and sworn, and no objection having been interposed to him as a juror, it cannot be held that the rights of the defendant were prejudiced by the action of the court. The rule would be otherwise had the juror F. been impaneled and sworn.</p> <p>2. Same — Theft — Evidence.— A party may, in certain cases, show by his own contemporaneous statements that ho was, at the particular time, not acting illegally. Under this rule the trial court erred in refusing to permit the defendant to prove that, prior to his taking possession of, and marking and branding, the alleged stolen animal, he informed the witness D. of the circumstances of his purchase of the animal, and that he asked and followed the advice of D. in taking and branding the animal. While not admissible as res gestee, these declarations tended to show a taking upon a claim of right, and an open assertion of right.</p> <p>3. Same—Possession of Recently Stolen Property.— When the possession of recently stolen property is relied on as inculpatory of the accused, his explanation thereof is admissible in his behalf, provided it was given on the first occasion for any explanation by him. It is not material that the first occasion did not present itself until three or four weeks after he had parted with the possession. To be admissible, the party must either be in possession of the property, or the explanation must be made when he was arrested for the theft, or when he was charged or informed that he is suspected of the theft. The explanation must have been made when the party was first directly or circumstantially called upon to explain. See the opinion in extenso for evidence which, coming within this rule, was erroneously excluded.</p>

Habeas corpus on appeal from the District Court of Gillespie. Tried below before the Hon. J. C. Townes. Held: was presented to the court on the 10th day of November, 1884, by a grand jury impaneled and sitting at said term of court commenced on the 10th day of November, 1884. 3. True copies of the said copias and indictment were attached to the application for habeas corpus.

Tried below before the Hon. A. J. Hood. The conviction in this case was for unlawfully and wilfully burning the grass in the inclosed pasture of Thomas Stewart, with intent to destroy it. The venue was laid by the indictment in Parker county, and the offense was alleged to have been committed on the 21st day of February, 1884. A term, of two years in the penitentiary was the penalty imposed. Thomas Stewart was the first witness for the State.

<p>Appeal from the District Court of Bosque. Tried below before the Hon. Jo Abbott.</p> <p>The opinion discloses the entire case.</p>

Tried below before the Hon, B. T. Estes. The conviction in this case was for the theft of a cow, the property of E. H. Moore. The punishment assessed against the appellant was a term of two years in the penitentiary. The testimony in the case is sufficiently summarized in' the opinion.

Tried below before the Hon. A. J. Hood. ■ The appellant in, this case was convicted upon an indictment which sought to charge him with privately stealing two silver dollars from the person of one Luke Brewer, in the county of Tarrant, State of Texas, on the 28th day of January, 1884. A term of three years in the penitentiary was awarded him by the jury as punishment.

Tried below before the Hon. T. M. Paschal. The conviction in this case was for the theft of $20 in money, the property of P. A, Joiner, in Maverick county, Texas, on the 28th day of May, 1884. A term of two years in the penitentiary was the punishment assessed against the appellant. P. A. Joiner was the first witness for the State.

Tried below before the Hon. T. L. Nugent. The indictment in this case charged the appellant and Sol McDonald jointly with the robbery of Thomas Heathington, in Hood county, Texas, on the 28th day of November, 1883. The appellant, being alone upon trial, was found guilty by the jury and his punishment was affixed at confinement in the penitentiary for the term of five years. Thomas Heathington was the first witness for the State.

Tried below before the Hon. A. J. Booty. The conviction in this case was for the burglary of the smoke house of Beuben Latham, in Busk county, Texas, on the night of the 12th day of February, 1883, the intent of the defendant being alleged to be to steal the corporeal personal property of the said Latham, in the said house situate. A term of two years in the penitentiary was the punishment assessed- by the verdict.

Tried below before the Hon. A. J. Smith, County Judge, The conviction in this case ivas for unlawfully keeping and exhibiting a gaming bank for gaming purposes. A fine of $25 was imposed by the jury. It was testified, for the State, that the defendant kept in his saloon in Henderson, Rusk county, Texas, a billiard or pool table, containing six pockets, on which, within the twelve months next preceding this trial, several games of a game known as fifteen ball pool were played.

Tried below before the Hon. J. S. Spinks, County Judge. This was a conviction for the theft of a pair of saddle-bags of the value of §2.50, the property óf H. M. Sullivan, in Van Zandt county, Texas, on the 21st day of July, 1883. A fine of $100 was the penalty imposed upon the defendant. H. M. Sullivan, the first witness for the State, testified that he first saw the defendant in the town of Canton, Van Zandt county, on or about the 21st day of July, 1883.

Tried below before the Hon. J. S. Spinks, County Judge. The information reads as follows: “ In the name and by the authority of the State of Texas: Now comes G. E. Rosenbaum, county attorney of Van Zandt county, State aforesaid, that one C. Hilliard (as shown by complaint of G. D. Woodley), on the 30th day of December, in the year of our Lord 1883, with force of arms, in the county and State aforesaid, did then and there make an aggravated assault upon the person of G. D.…

Tried below ! before the Hon. B. W. Bimes. This is an appeal from a second conviction for swindling, a term of two years in the penitentiary being the penalty assessed against the appellant. The former report of this case, which will be found on p. 431 of Yol. XV of these Beports gives a statement of the case.

Tried below before the Hon. Gf. Cook. This conviction was for the theft of a horse, the property of Thomas Moore, in Harris county, Texas, on the 10th day of May, 1883. A term of five years in the penitentiary was the punishment awarded. Thomas Moore, the first witness for the State, testified that he was the owner of the alleged stolen horse.

<p>Adultery—Practice—Charge of the Court.— A radical fundamental error in the charge given by the trial court to the jury in a misdemeanor case is reversible error, even though such charge was not excepted to on the trial. See the opinion in extenso for a charge of the court in a prosecution for adultery held error, because it left the jury no alternative but to-convict.</p>

Tried below before the Hon. G-. H. Hoonan. This conviction was for the theft of a watch, and chain of the value of $100, the property of T. McMullen, in Bexar county, Texas, on the 12th day of January, 1884. A term of four years in the penitentiary was the punishment awarded. The questions discussed in the opinion do not necessitate a statement of the evidence.

<p>1. Theft — Continuance — Diligence.— Flight ■ of the defendant after the perpetration of the offense was a principal inculpatory fact relied upon by the State. Two of 'the defendant’s witnesses gave, at the examining trial, satisfactory explanations of why the defendant left the place at the time he did. Being bound over by the examining court, the defendant had these two witnesses recognized to appear and testify before the district court. Upon the finding of an indictment, the defendant, ascertaining that the said witnesses were absent, procured the immediate issuance of attachments for them. When the case was called for trial, the said witnesses being absent, the defendant first asked a postponement, and then a continuance, setting forth his diligence as above, and the materiality of the evidence, exhibiting the same as taken before the examining court. The materiality of this evidence was again asserted in the motion for new trial. All of his</p> <p>1 motions were overruled.- Held, that the trial court erred, because the defendant had the right to controvert the State’s theory of flight as evidence of guilt, and the application for continuance showed merit, both in point of diligence and the materiality of the absent testimony.</p> <p>9. Same.— The evidence shows that the prosecutrix handed the defendant a twenty-dollar bill to change, and that he, pretending that he did not have a sufficiency of small money to change it, handed her backaone-dollar bill instead of the twenty-dollar bill. Upon this state of case, appellant’s counsel insist that the amount actually stolen was but $19, and that, therefore, the conviction can be, in no event, for an offense higher than a misdemeanor. But held that the argument, though specious, is not sound. The indictment charges the theft of the twenty-dollar bill, and if the evidence shows any offense at all, it shows a felony, because it shows that the prosecutrix lost the twenty-dollar bill, and that defendant took the twenty-dollar bill.</p>

<p>1. Pleading.— Information charging a misdemeanor must show on its face that the charge is made by the State’s attorney, and not leave it questionable whether such charge was made by that officer or by the complainant who made the oath in writing upon which the information is based. Uncertainty in this respect is fatal to the sufficiency of an information.</p> <p>3. Same.— Note in the opinion the suggestion of this court that it is wholly unnecessary for an information to state that it is founded upon a complaint in writing under oath, or to make any mention whatever of the oath. The law requires no more than that the oath be filed with the information.</p>

<p>Appeal from the District Court of Hopkins. Tried below before E. W. Terhune, Esq., Special Judge.</p> <p>The indictment in this case was joint against the appellant and John and Jeff Pierce, and charged them jointly with the offense of resisting an officer in the execution of a warrant of arrest, commanding him to arrest the body of Jeff Pierce. The venue was laid in Hopkins county, Texas, and the offense was alleged to have been committed on the 30th day of June, 1883. The appellant being alone upon trial was convicted, and his punishment was assessed at a term of two years in the penitentiary.</p> <p>John Becton was the first witness for the State. He testified that since November, 1882, he had held the office of constable of precinct number one of Hopkins county, Texas. At and since the same time W. T. Blythe had been justice of the peace of the same precinct. On the 30th day of June, 1883, the said justice of the peace placed in the hands of the witness, for service, a warrant of arrest for one Jeff Pierce, in which he ivas charged with the theft of a horse. The witness summoned W. T. Johnson, Harmon Gregg and M. Ikes as a posse to aid him in making the arrest. These parties went with the witness, who took the warrant with him. Approaching the house of Frank Pierce, the father of the defendant and Jeff Pierce, the witness and his party saw some persons, including the defendant, but not Jeff Pierce, in the field. Witness told Johnson, Gregg and Ikes that the Pierces knew him as an officer, but did not so know them, and that, therefore, they had best take the warrant and go to the house in a body, while he; the witness, went around the field. Witness gave the warrant to Johnson, who, with Gregg and Ikes, went towards the house, and the witness around the field. As the witness approached the house, having made a circuit of the field, he saw Johnson and Gregg standing in front of the house about fifty yards from it. Jeff and John Pierce were then standing on the gallery, where they were presently joined by the defendant. The three Pierces named were each armed with guns. Witness rode up to Johnson and Gregg and remarked to Jeff Pierce: “ That will never do. I have come to arrest you for horse theft, and have a warrant for you.” Jeff Pierce replied: “ If you had come alone, or if the sheriff had come for me, I would have surrendered, but as you have brought that Gf—d d—d law and order with you, I will not be arrested.” Witness replied: “I have no law and order with me.” Jeff answered: “I know better; Gregg belongs to the law and order.” Witness attempted to reason with Jeff Pierce, but with no effect. He, Jeff, insisted that he would never go to jail again, but would die first. Witness promised to guard him and not put him in jail. He replied that he knew better; that he knew that, if the witness got him to Sulphur Springs, he would jail him. Witness then said to Mm: “Well, then, give me a bond signed by your father, and I will let you alone.” Jeff Pierce-declined. During this time the three Pierces, defendant, Jeff and John, stood on the gallery with their guns.</p> <p>About the time that Jeff refused to execute the bond, the defendant left the gallery, taking his gun, and cut across the yard to the horse lot. He caught two horses and went back. As he came off the gallery with the gun, Gregg asked him what kind of a gun he carried. He replied: “Look down the muzzle and see.” Gregg then asked him how far it would carry, and he replied: “ About a thousand or fifteen hundred yards.” The defendant, Jeff and John Pierce then mounted their horses and rode off down the lane. After they left the house they were joined by two other men, who rode off with them. Just before witness and his party started off, which they did as the Pierce party left, the defendant called back that some one had left an umbrella at the house. Johnson went back to the house and got his umbrella. The arrest of Jeff Pierce was not effected. Johnson returned the warrant to the witness before the conversation with Jeff Pierce. Witness had known the Pierce boys for years, and they knew him equally well. Bev. W. B. Billups was at Pierce’s house when witness and his party arrived, or got there soon after. He said that he would go in and see if he could not arrange the matter. On his return he advised witness and his party not to enter the house.</p> <p>On his cross-examination, the witness stated that he had never had official business with the Pierce boys prior to this attempt to arrest Jeff, and he could not say that the defendant knew him to be an officer.</p> <p>W. T. Johnson was the next witness for the State. He testified that he made the affidavit on which the warrant for the arrest of Jeff Pierce was issued. As a member of the posse, the witness accompanied John Becton, constable, and Gregg and Ikes, to make the arrest of Jeff Pierce, on June 30. When near and before reaching Pierce’s house, Becton said that he saw the defendant in a field, and suggested that, inasmuch as the Pierces knew him as an officer, it was best that witness, Gregg and Ikes should go direct to the house, while he, Becton, should approach it from another direction. Accordingly witness, Gregg and Ikes (witness having the warrant) rode up to the fence, got down, and went into the yard, asking for some water as an excuse. While witness was drinking, Jeff Pierce went from the gallery into the house. Witness heard a noise of some kind and, drawing his pistol, started around the house. At a point where two rooms nearly joined, Jeff Pierce met the witness and threw a gun in witness’s face. Jeff told the witness to go back, and with his party to leave. Witness returned to Gregg and told him that he and witness had better “ get away from there.” Jeff Pierce came out on the gallery armed with a gun, and Frank Pierce was in the room armed with a gun. Ikes had run off down the road on foot, and as witness and Gregg had pistols only with which to oppose the guns, witness thought it was time to leave. Witness and Gregg left while Jeff Pierce was cursing and ordering them off. Jeff all the time kept his gun leveled on the witness. As witness and Gregg went out of the yard, Jeff remarked: “ I have been looking for you fellows, and have been prepared for you.” When witness and Gregg got about fifty yards from the house, they were joined by Becton, to whom witness returned the warrant. From this point the witness detailed the occurrences exactly as they were detailed by the witness Becton, adding that as they rode off Jeff called out, “ Go back and get that man’s horse; no one will hurt you.” The party recovered the horse. During the entire conversation, Jeff Pierce stood on the gallery with his gun at a present. Defendant said nothing until he left the gallery to go to the lot.'</p> <p>Cross-examined, the witness stated that when he rode up and asked for water he did not show his warrant nor announce his purpose to make the arrest. Hr. Ikes was the man to whom Jeff Pierce had traded the alleged stolen horse. Jeff recognized Ikes as the party approached the house, and remarked: “ That is the man now.” When the defendant handed witness the umbrella as witness was leaving, witness saw that defendant’s gun was cocked.</p> <p>II. Gregg, the next witness for the State, gave substantially the same account of the occurrences at the house of Pierce as that given by the witness Johnson.</p> <p>. The State next introduced in evidence the following affidavit: “ The State of Texas, 1</p> <p>County of Hopkins. ]</p> <p>“Personally appeared before the undersigned authority, W. F. Johnson, who, after being by me duly sworn, deposes and says that Jeff Pierce, in the county of Hopkins, and State of Texas, on or about the 10th day of Hovember, 1882, did then and there fraudulently steal, take and cony away from and out of the possession of S. W. Bryarly, without his consent, one certain horse, the corporeal personal property of S. W. Bryarly, with the intent then and there to deprive the said owner thereof, of the value of said property, and with the intent then and there to appropriate the same to the use and benefit of him the said Jeff Pierce; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.</p> <p>“ W. T. Johnson.”</p> <p>“ Sworn to and subscribed before me this 30th day of June, 1883.</p> <p>“W. T. Blythe, J. P.”</p> <p>The State next introduced in evidence the following warrant: “ The State of Texas, )</p> <p>Hopkins County. j</p> <p>“ To the Sheriff or any Constable of Hopkins County, Greeting: You are hereby commanded to arrest the bod— of Jeff Pierce, and him safely keep, so that you have him at my office in Sulphur Springs instanter, then and there to answer the State of Texas on a charge of theft of a horse, founded on affidavit of W. T. Johnson. Herein fail not, and due return make.</p> <p>“ Given under my hand the 30th day of June, 1883.</p> <p>“ W. T. Blythe, J. P. Hopkins Co., Texas.”</p> <p>At this point the State closed.</p> <p>Frank' Pierce, the father of the defendant and John and Jeff Pierce, was the first witness for the defense. He testified that he was at home, with Jeff and John, when Johnson, Gregg and Ikes came up to the house. He was, at the time, in the house sweeping the floor. He saw his son Jeff run through the house "with a gun in his hand. He asked Jeff the occasion of such action. Jeff replied: “ A lot of fellows have come herewith pistols'. They don’t say what they want, and I am going to make them get out.” Johnson and Gregg got out of the gate at quite a lively gait. Ikes, the Denison man, kept going, and the witness has not seen him since. Jeff Pierce stood on the gallery, with one foot up and the gun resting across his leg. John Pierce was on the steps with a pistol. Witness was not armed, and the defendant was not present. Becton had not come up when Jeff ordered the party off. When Johnson and Gregg got off about one hundred and fifty yards from, the house, the defendant, who had been in the cotton field, came up to the house. Defendant had that morning promised his wife to come to the house that evening, to go with her to his, defendant’s, brother-in-law, Hopkins’s, house to borrow his, Hopkins’s, gun to use in a proposed “ drive.” It was also his purpose, as agreed between him and his wife, to take an old cartridge rifle to Hopkins’s to fit with cartridges, if possible. This old cartridge rifle had not been loaded for six months, and no cartridges large enough for it could be found in that section of the country. It had been lying loose around the house. John and Jeff Pierce were standing on the gallery with their weapons, talking to the men, when the defendant came up. Defendant asked: “What does all this mean?” Jeff replied : “ That d—d mob have come here without saying what for, and I made them leave.” The defendant then took up the old gun, carried it with him to the lot, saddled two horses, and he and his wife rode off towards Mr. Hopkins’s. This was a few minutes after John and Jeff left. Defendant before leaving told the party that some one had left an umbrella, and to come and get it. John and Jeff were joined in the lane by two men, and the four rode on together. The witness did not know who the two men were. Defendant and his wife returned home that night with Hopkins’s gun. At the time of this trouble there were but two guns and one pistol on the witness’s place.</p> <p>Cross-examined, the witness stated that he heard Jeff Pierce tell Becton that he would never go to jail again alive. He told Becton that he would have gone with him, Becton, alone, or with the sheriff, but would never go with that “d—d law and order mob.”</p> <p>John Pierce testified, for the defense, that he was at home when Johnson and Gregg arrived. The two men named came in, asked for water, and Johnson as he was drinking drew his pistol. Jeff went into the house and got his gun. Johnson went around the house, but soon came back. Jeff came back to the front and remarked : “ That d—d mob came here with their pistols and don’t say what they want.” Witness got a pistol. Jeff ordered the party off and they left. Ikes ran off entirely,'and Johnson and Gregg retired to a point about one hundred and fifty yards distant, where they were joined by Becton. Jeff and Becton had a good deal to say to each other. About this time the defendant came up to the house to go with his wife to Hopkins’s house to borrow a gun, according to their previous arrangement. Defendant took up an old fifty-six caliber rifle and went with it to the lot, where he caught two horses. Johnson and Gregg started off when Jeff Pierce told them to “ take that man’s horse,” which they did. Defendant told them they had left an umbrella, and one of them came back and got it. The old rifle spoken of had not been loaded for six months, and there were no cartridges on the place large enough for it. Witness and Jeff Pierce left the house together. Johnson and Gregg did not, when they arrived at the house, say what they came for. Witness heard Jeff tell Becton that he, Jeff, would not go to jail alive. Witness, when accorded a verdict of not guilty, by the district attorney, was not asked if he had a gun or pistol at the time of the controversy.</p> <p>John Becton, in rebuttal, testified for the State that the defendant and his wife did not leave Pierce’s house together. The defendant left with or just after Jeff and John did. Two women left the house just as the witness rode up to it, and did not come back again. Witness did not know these women, but supposed one was the wife of the defendant. He saw no women about the place afterwards.</p> <p>The charge of the trial judge, commended by this court, reads as follows:</p> <p>“ Gentlemen of the jury; I charge you that our Penal Code provides :</p> <p>“ I. If any person shall wilfully oppose or resist an officer in executing or attempting to execute any lawful warrant, for the arrest of another person, in a case of felony, he shall be punished by confinement in the penitentiary for a term not less than two nor more than five years.</p> <p>“ II. A constable is an officer as contemplated by the above provision of the statute. The warrant in evidence is such a writ as would authorize a constable to execute it in arresting the party named in the warrant.</p> <p>“III. When a constable goes to make an arrest he has the power to summon others as a fosse to assist him, and if such person consent to assist in such arrest, and undertake to aid in the execution of the warrant of arrest, such person shall be bound to do so under all the penalties to which the constable would be liable, and would have the same rights and be governed by the same rules as the constable himself. If, therefore, the jury believe from the evidence that John Becton was, on the 30th day of June, 1883, constable, of precinct number one of Hopkins county, Texas, and that he had a warrant for the arrest of Jeff Pierce, charging him with the offense of theft of a horse, and that he summoned Harmon Gregg and W. T. Johnson to go with him to assist in making such arrest, and they consented to go, and did undertake with John Becton to make such arrest, then they would have been bound to do so, and would have the same rights and be governed by the same rules as the constable himself.</p> <p>“IT. When an officer has a warrant of arrest in his hands for execution, it is his duty to execute it at once, and in executing the warrant he shall make known to the party accused under what authority the arrest is made, and if requested the warrant shall be exhibited to him, but unless the person for whose arrest the warrant is issued requests to see the warrant, the officer need not exhibit it. And if the person for whom the warrant is issued knows that he is sought to be arrested, and on what charge, then it is not necessary for the officer to make known to such party under what authority he is making such arrest.</p> <p>“ T. All persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others are present, and, knowing the unlawful intent, aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principal offenders, and may be prosecuted and convicted as such.</p> <p>“ TI. The jury in determining the guilt or innocence of the defendant Young Pierce, who alone is on trial, shall not consider the acts, declarations and conduct of Jeff Pierce, John Pierce or any one else, unless the defendant Young Pierce was present, and if the jury believe, while Young Pierce was present, that Jeff Pierce, John Pierce, or either of them, did any act in the commission of the offense charged in the indictment, and that Young Pierce was present and, knowing the intent of Jeff Pierce or John Pierce, aided them by act or encouraged them by words or gestures, he would be equally guilty with them, and the act or declaration of those whom Young Pierce, knowing the unlawful intent, aided or encouraged as above stated, would be the act or declaration in law of Young Pierce. But unless the evidence shows that Young Pierce was present, and, knowing the unlawful intent, did aid by acts, or encourage by words or gestures, Jeff Pierce or John Pierce, then the jury should not consider any act or declaration of Jeff Pierce or John Pierce as evidence against this defendant.</p> <p>“TII. If, therefore, the jury believe from the evidence that John Becton, at any time in three years, before August 23, 1883, was constable of Hopkins county, Texas, and that he had the warrant in evidence, for the arrest of Jeff Fierce for theft of a horse, in his hands for execution, and that he summoned Harmon Gregg and W. T. Johnson to go with him in making such arrest, and that they did go with him and attempt with him to execute such warrant, and that John Becton, Gregg or Johnson made known to Jeff Pierce their authority for his arrest, or that he knew their authority, and for what purpose they desired to arrest him, and that Young Pierce was present and by himself, or acting with Jeff Pierce and John Pierce or either of them, wilfully opposed or resisted said Becton or Gregg or Johnson in executing said warrant, or that Jeff Pierce, or Jeff Pierce and John Pierce, resisted said officer or officers as herein-before defined, and that the defendant was present, and encouraged them, or either of them, by words or gestures, or aided them by acts, knowing their unlawful intent, the defendant would be guilty, and his punishment would be confinement in the penitentiary for a term of not less than two nor more than five years.</p> <p>“Till. As to what constitutes an opposition to the execution of a warrant or resistance of an officer, the jury are charged that any act wilfully done with intent to deter or prevent any officer from the performance of his duty, and prevent him in making the arrest, would come within the meaning of the statute. If the means used is sufficient to prevent the officer in making the arrest, through fear, terror or otherwise, caused by the opposition or resistance, it would make the offense complete if it had the other elements hereinafter charged upon.</p> <p>“ IX. An officer with a warrant of arrest for horse theft can go to any place to make the arrest, and, after giving notice of his authority and purpose, can go into any house and break down a door if necessary.</p> <p>“X. In all criminal cases the defendant is presumed innocent, until proved guilty by legal evidence, and in case of a reasonable doubt as to his guilt, is entitled to an acquittal.</p> <p>“ XI. The jury are the exclusive judges of the weight of evidence and the credibility of witnesses.</p> <p>“ XII. Horse theft, in law, is a felony.”</p> <p>(Signed) “ E. W. Terhune, Special Judge.”</p> <p>The motion for new trial assailed the charge of the court as given, and the action of the court in refusing charges asked, the refusal of a continuance, and the sufficiency of the evidence to support the verdict.</p>

<p>1. Horse Theft.— Indictment in this case charged the defendant with the theft of “an animal of the horse species.” Held, sufficient to charge the offense of horse theft, though reprehensible as a criminal pleading. See the opinion in extenso for the animadversion of this court upon such pleading.</p> <p>2, Practice — Continuance — Evidence.—See the opinion in extenso for desired evidence, which, in the flvst instance, entitled the defendant to a continuance. the application therefor disclosing the exercise of due diligence, and which, in the second instance, demanded the award of a new trial because of the refusal of a continuance.</p> <p>3. Same—Alibi.—That evidence sougiit to establish an alibi is cumulative is no reason for its exclusion; on the contrary, the greater the number of the witnesses to the facts establishing the alibi, the stronger, ordinarily, would its truth appear. The testimony of the absent witness in this case was material to the defense, and was desired to prove an alibi, and therefore did not come within the objection that it was merely cumulative.</p> <p>4. Same —Practice in the Court op Appeals.—Though this court will not revise the action of a trial court in refusing a continuance unless it appears from the evidence adduced on the trial that the testimony of the absent witness is not only material, but that it was probably true, still, when it does appear that such absent testimony was material and probably true, and that due diligence has been used to obtain it, this court will grant the defendant a new trial. See this case in illustration.</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. G-. H. Hoonan.</p> <p>At the September term of the district court of Bexar county the appellant, who at that time was a newsdealer in the city of San Antonio, said county, was indicted for the offense “of pursuing the occupation or business of selling and offering for sale the Illustrated Police Hews and Police Gazette without obtaining license and paying occupation tax therefor.” Several demurrers were presented to the bill of indictment, which, being overruled, upon his plea of not guilty, trial was had, resulting in his conviction and an assessment of a line of §750.</p> <p>The State proved the levy by the State of a tax of §500 per annum upon persons, firms, or associations of persons who should follow the occupation of selling or offering to sell the “ Illustrated Police Hews, Police. Gazette and other illustrated publications of like character;” also the levy by the county commissioners for the use of Bexar county, of a tax of §250 upon the same occupation. County Collector Cassiano testified, for the State, that the defendant had never paid either the State or county tax so levied. Junius Means testified, for the State, that in August, 1883, he purchased at the defendant’s newspaper store on Main Plaza, in the city of San Antonio, Bexar county, Texas, a copy each of the “Illustrated Police Hews” and the “Illustrated Police Gazette.” He several times saw those papers exposed for sale on the defendant’s counters, during the year 1883. He bought the papers on the occasion referred to from the defendant’s clerk. The business, however, was conducted in the name of the defendant.</p> <p>The motion for new trial complained that the court erred in overruling the defendant’s exceptions to the indictment; that the court erred in refusing certain charges requested by the defendant; that the verdict was contrary to the law and evidence, there being no proof that defendant ever sold the particular article taxed, nor was there proof of the length of time he sold the said articles, nor wTas there proof that defendant had any connection with the sale shown by the proof.</p> <p>The motion in arrest of judgment alleged that thé indictment charged no offense; that the act of May 4, 1882, so far as it attempts to.levy the tax for the failure to pay which the defendant was indicted, is oppressive, indefinite and uncertain, and beyond the power of the Legislature; that the said act is repugnant to section 2, article "VIII, of the Constitution; that the indictment did not sufficiently and with certainty describe the occupation for the pursuing of which the defendant was sought to be charged; that the prosecution was such as is expressly prohibited by section 8 of article I of the Constitution.</p>

<p>1. Practice — Proof of Character.— The defendant having assailed the credibility of a State’s witness by showing that such witness was under indictment for illegal branding, and that he, the defendant, was a witness against him, and that his feelings towards the defendant were unfriendly, the State had the right to prove that the general reputation of the witness for truth and veracity was good.</p> <p>3. Same — Intent — Charge OE THE Court.—In a trial for theft the court charged the jury as follows: “ If the defendant killed the cow without the consent of the owner thereof, with the intent to deprive the owner of the value thereof, and appropriate it to the use and benefit of the defendant, ' then this would constitute theft of said cow.” In view of the evidence in this case, and in view of the fact that another portion of the charge fully instructs the jury that, to constitute theft, the taking of the property must have been with a fraudulent intent, the paragraph quoted is not materially erroneous because it omits to instruct the jury that the killing of the cow was with a “fraudulent intent” on the part of the defendant,— the charge being, as all charges must be, construed as a whole.</p> <p>8. Theet —Cases Approved and Overruled.— Asportation is not, under the statutes of this State, necessary to constitute the offense of theft. Under the doctrine laid down in Hall’s case, 41 Texas, 287, and Madison’s case, 16 Texas Ct. App., 435, it is held that, the circumstances showing an intent to steal, the killing of the cow of another on the range, though the animal had never actually passed into the manual possession of the slayer, is sufficient to show such a taking as will support a conviction for theft of the animal. In so far as it announces a contrary rule, the case of Martin v. The State, 44 Texas, 172, is overruled.</p> <p>4. Evidence — Ownership.—An unrecorded brand is competent evidence of the identity of an animal on which it is found, when such identity becomes a question involved in a legal proceeding, but it is not even presumptive evidence of the ownership of the animal. See the opinion, and the statement of the case, for evidence held insufficient to support a conviction for the theft of a cow, inasmuch as it fails to establish the ownership of the animal as alleged in the indictment.</p> <p>5. Same — Consent.— Conceding it to be true that the cow involved in this case was the separate property of the wife of the party alleged to be the owner, such alleged owner had the sole management of the animal during the marriage, and prima facie the wife could not legally consent to the taking of the same without being joined in such consent by her husband, the alleged owner; and hence, though the consent of the wife might, perhaps, be available as a defense, the State could not be required to prove the want of the wife’s consent.</p>

<p>1. Rape—Evidence.— As to the question whether or not a conviction for rape can be had on the uncorroborated testimony of the injured female, the rule laid down by Lord Hale obtains in this State, viz.: The party ravished may give evidence upon oath, and is in law a competent witness, but the credibility of her evidence, and how far she is to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact that may concur in that testimony.</p> <p>S. Same.—Though there may be a conviction for rape, upon the uncorroborated testimony of the injured female, notwithstanding she be a child under the age of ten years, it is in that respect a case requiring special scrutiny by the jury, and a careful weighing of the evidence, with all remote and near circumstances and probabilities. In all such cases extraordinary effort should be made to secure circumstantial evidence tending to confirm the main witness. See the opinion in extenso on the question.</p> <p>3. Same—New Trial.— While the trial court cannot, in a criminal case, express any opinion as to the weight of the evidence, nor sum up the testimony on a trial before the jury, as they are the exclusive judges of the facts, yet, on a motion for a new trial, it is the duty of the court to set the verdict aside when it is contrary to the law and the evidence. See the opinion for the facts of a case cited in illustration.</p> <p>■ 4. Same—Presumption op Innocence—Reasonable Doubt.—In arriving at the conclusion whether or not a conviction in a criminal case is sustained by the evidence, it must be borne in mind that the defendant must be presumed innocent of the crime until his guilt is satisfactorily established, and that he is entitled to acquittal if, from the evidence, there be a reasonable doubt of his guilt.</p> <p>6. Same —Corroborating Testimony—Fact Case.— A correct michas been stated, by Mr. Wharton as follows: “It is true that convictions for rape have, been sustained when resting exclusively on the testimony of a young child, or of a woman who, at the time of the alleged act; was under the influence of ether; but these are dangerous precedents; and when corroborativo testimony can be procured, its non-production should tell seriously against the prosecution.” See the opinion in extenso for a summary of evidence in a. rape case, held insufficient to sustain a conviction, because the testimony of the alleged injured female, upon, which alone the conviction rests, is not-only uncorroborated, but is directly contradicted by the great preponder- ■ anee of the testimony in the case.</p> <p>6. Same — Practice — Privilege of Counsel.—Note in the'opinion the suggestion of this court as to proper practice in the trial of criminal causes,' especially of high degree; and also its disapproval of the line of argument pursued by counsel for the State.</p>

Tried below before the Hon. D. P. Harr. The indictment charged the theft of a colt, the property of E. A. Groins, in Atascosa county, on the 6th day of March, 1883. The trial of the appellant resulted in his conviction, and his punishment was assessed at a term of five years in the penitentiary. John West was the first witness for the State. He testified that he was in the employ of Mr. Moore.

<p>Murder — Corpus Delicti—Evidence.— See 14 Texas Ct. App., 545, for evidence adduced on a former trial of this case, and the opinion in extenso for additional evidence adduced upon this trial, held insufficient to support a conviction for murder in the first degree, because, in failing to establish that the death was the result of a criminal agency, it failed to establish the corpus delicti. Note the medical authorities quoted in the opinion of this court.</p>

Tried below before the Hon. Gr. E. Aldredge. The conviction in this case was for the rape of Lucinda Lawson, in Ellis county, Texas, on the 3d day of September, 1884. A life term in the penitentiary was the penalty assessed against the appellant, who was the father of Lucinda. Lucinda Lawson was the first witness for the State.

<p>Appeal from the District Court of Nolan. Tried below before the Hon. T. B. Wheeler.</p> <p>The conviction in this case was for the burglary, in Nolan county, Texas, on the 15th day of October, 1884, of the office of J. A. J. Bradford, and the theft therefrom of $6. A term of two years in the penitentiary was the punishment awarded.</p> <p>J. A. J. Bradford was the first witness for the State. He testified that he was a resident of the town of Sweetwater, Nolan county, and was the agent in charge of the lumber yard of Elliott & Roe. Witness was in town attending to his business on the 15th day of October, 1884, when the defendant was arrested upon this charge. .The circumstances connected with the detection and arrest of the defendant upon this charge were related by the witness as follows:</p> <p>“I suspected that the defendant was stealing, and thought that he was trying to steal from me, and acting upon that suspicion prepared, a trap for him. In the presence of County Attorney Ragland, I marked a five-dollar currency bill so that I would know it. I put that five-dollar bill and a dollar and a half dollar in coin in the wooden drawer of the safe in my office. My office is inside of a hardware house that is now run in connection with the lumber yard. That house is about twenty feet wide and fronts south. It is considerably longer than it is wide. The house is partitioned off into different rooms, and the front or south apartment is used as a storeroom for paints, glass, nails, and such hardware. My office is in the southwest corner of that front room, in the front end of the house. It is about eight by ten feet in size, and is partitioned off from the balance of the house. The door or gate entrance of the office is about three or four feet from the main front door at the south end of the house, and is west and to the left of the south door of the house as it is entered. The office door or gate swings or opens outward into the main room. This door or gate fastens with a latch. A string extending from the inside of the gate to a beam inside the office had a weight attachment which would close or shut the gate. The office described was used by me as a depository for records, papers, books, accounts and money accumulating in the conduct of the lumber business. Eo person other than I had control of that office.</p> <p>“It was about 10 o’clock A. M. when I put the money described in the safe in my office. I closed but did not lock the safe, left the house door open, and went across the street to a drug store. In about fifteen minutes I went back to my office, opened the safe and found the money unmolested. I then left the money in the drawer in the safe, locked the drawer, but left the key in it, and closed but did not lock the safe. About this time I saw the defendant coming alone towards the house in which my office was situated. Thereupon I turned the safe combination to the opening number, and left it so that the safe could be opened by turning the handle and pulling the door. I then walked out of my office, passing out of the back or north door of the main room, and passed slowly around towards the front door. I saw no one in my office as I stepped out of the north door of the main house, but heard a clicking noise, such as is made by a safe when, by a turn of the handle, it is locked or unlocked. As I went into the house again I heard my office door or gate swing to and latch. The defendant was then standing about two feet north of my office and but a few, perhaps four, feet from a door which led west from the hardware room into the street. I immediately examined my money drawer and found that the five-dollar bill and the coin dollar had been removed, leaving the half dollar in the drawer. I immediately- arrested the defendant, who still had the currency bill in his hand.</p> <p>“I then took the defendant to County Attorney Ragland and Doctor R. E. Lee, and Mr. Ragland took the money, the five-dollar currency bill and the coin dollar, from the person of the defendant. I readily identified the five-dollar bill as the same one I had marked and put in the safe drawer. I could not identify the silver dollar, as I had not marked it, and it resembled other federal coins of the same denomination. The last time I saw that money before the arrest of the defendant, it was in the safe drawer. The defendant was not employed about the lumber yard, and he had no right, either by permission or otherwise, to enter my office or take my money. In order to get that money the defendant unlatched my office gate or door, opened that door, opened the safe, and unlocked and opened the drawer. He had only to turn and pull the handle in order to open the safe. The money described belonged to me, or was under my control, and it was taken by the defendant in Holán county, Texas, on the 15th day of October, 1884, without my consent. I had no conversation with the defendant after I marked the bill and put it and the silver money in the drawer. I did not, at any time, suggest to the defendant, or procure a suggestion to him, to enter my office and take that money.</p> <p>“ That office was made for the protection of rny books, papers, accounts and money. The partition or picket wall that is around my office was made to keep people out of the office and away from my books, papers, etc. The weight was attached to the gate for the express purpose of keeping it closed so as to exclude people. My office had no other opening or entrance than the gate described. A person could not get into my office except through that gate, unless by scaling the pickets or climbing in through a window. The gate was the only regular or usual entrance to the office.”</p> <p>Cross-examined, the witness said: “ The main house, or hardware room, in which my office is situated, was open. I marked the bill and put it in the safe for the express purpose of catching the thief. 1 left the safe purposely so that it could be opened by turning the handle. When I went out, I saw the defendant coming, and I expected him to steal the money. He xvas the one person I had in my mind, and I expected no one else to steal it. I went out of the house purposely to afford the defendant an opportunity to steal the money. My office, situated in the southwest corner of the hardware room, is made of pickets. The pickets are about four feet high, an inch square, and about three inches apart. There is a plank on the top of the pickets on the north side of the office, which is sometimes used by people as a desk for writing or figuring. The door or gate of the office is made of sharp flat pickets, four feet high and two inches apart. It has a gate latch and opens outwards into the main room. The weight on the string attached pulls the gate closed and latches it whenever it is opened. That gate xvas shut xvhen I went out of the office just before the defendant entered it. I cannot swear positively that it was latched, but it was shut,. and it always latches when it shuts. I have never seen it fail to latch when it closes, and I have no doubt in the world about it being latched when I left it on this occasion. Both doors of the main room, the south and west, were open when the defendant went in. There was a space of about six feet between the top of the pickets and the ceiling overhead.”</p> <p>B. A. Bagland testified, for the State, that, on the 15th day of October, 1884, he saw the defendant in charge of Mr. J. A. J, Bradford, and, in the presence of Doctor B. LT. Lee and Mr. Bradford, received from the hands of the defendant a five-dollar currency bill and a silver dollar. Witness identified the bill instantly as one which, a half hour before, he saw Mr. Bradford mark, and with a dollar and a half dollar in silver, put in his safe in his office, for the purpose of baiting and apprehending some person suspected of stealing. Witness did not speak to the defendant on that day previous to his arrest, and did not suggest to him the possibility of stealing that money, or procure such suggestion to be made.</p> <p>The motion for new trial raised the question discussed in the opinion.</p>

Tried below before the Hon. G. LT. Aldredge. The conviction in this case was for the theft of a horse, the property of Burr Collins, in Ellis county, Texas, on the 2d day of September, 1883. A term of five years in the penitentiary was the penalty assessed against the appellant. Burr Collins was the first witness for the State.

<p>1. Practice — Misdemeanor — Recognizance on Appeal.— With reference to the procedure in the lower courts after a determination of an appeal in the Court of Appeals, it is provided that, “in cases of misdemeanor where the judgment has been affirmed, no proceedings need be had after filing the mandate, except to forfeit the recognizance of the defendant, or to issue a copias for the defendant, or an execution against his property to enforce the judgment of the court, whether of fine or imprisonment, or both, in the same manner as if no appeal had been taken.” With regard to recognizances on appeal to the Court of Appeals, the general rule is provided that “ the same proceedings be had in case of forfeiture as in other cases of recognizance.”</p> <p>2. Same.— Judgment Nisi to be valid must state that the same “ will be made final unless good cause be shown at the next term of the court why the defendant did not appearand such, in this case, is the recital of the judgment nisi.</p> <p>S. Scire Facias — Estray Laws.— One of the requisites of the writ of scire facias which is required to be served upon sureties in case of forfeiture is that it “shall state the date of such recognizance or bail bond, and the-offense with which the principal is charged.” The scire facias in this case denominates the offense charged against the principal as “ unlawfully using an estray. ” This is not a description of the offense denounced by article 771 of the Penal Code. That offense is for “ any person without complying with the laws regulating estray s ” to “take up and use them.” “Without complying with the laws regulating estrays ” are words essential to the description of the statutory offense, and the defendant’s objections to both the judgment nisi and the scire facias, based upon this ground, should have-been sustained in the present case.</p> <p>4. Same — Final Judgment.— Sickness of the principal at the time the forfeiture is had, if established, is a statutory and a good defense to a final judgment. In this case both sureties and principal, in obedience to scire facias, appeared and pleaded the sickness of the principal at the time of the-forfeiture, as cause for his non-appearance, and announced their readiness for trial and to abide judgment. While the mere presence of the principal to stand trial is not sufficient cause for remission of the forfeiture, still, if he appears, and shows any of the causes enumerated, he is entitled to a trial, and the judgment cannot be made final.</p> <p>5. Same — Service.— In civil cases the rule is that a judgment is not final unless the whole matter in controversy is finally disposed of as to all the parties. Scire facias cases, though criminal and not civil in their nature, are nevertheless subject in practice and procedure to the same rules as govern civil cases. One of the sureties in this case had never been served with scire facias, and did not appear and answer, and yet the judgment was rendered against appellants without a dismissal or discontinuance having been entered as to him. Held, error.</p>

<p>1. Jury Law—Practice—Waiver.— Irregularities in the organization of a trial jury should not be tolerated, but, if permitted by the trial court, the error, to be revised by this court, must be promptly excepted to at the very time, and not for the first time on motion for new trial. If not objected to at the proper time, and a jury is selected without objection, the defendant will not be heard to complain afterwards, but will be held to have waived all such objections.</p> <p>2. Same. — New Trial can be awarded only upon some one or more of the grounds enumerated in article 777 of the Code of Criminal Procedure. Illegal organization of the trial jury is not one of the grounds enumerated in the said article.</p> <p>3. Same — Arrest of Judgment.— An acceptance of the jury by the defendant is a waiver of the right to question its organization on motion for new trial, or in arrest of judgment.</p> <p>4. Same — Arson — Fact Case.—Where the evidence is insufficient to support a conviction, a new trial should be awarded. See the statement of the case for evidence held insufficient to support a conviction for arson.</p>

<p>1. Murder—Habeas Corpus — Evidence.— See the statement of the case for evidence held insufficient to support the judgment of the court below in refusing bail, on a charge of murder.</p> <p>2. Same.— Transcript in habeas corpus cases for hail should show the pecuniary circumstances of applicants, and their ability to make bond, in order to enable this court, if it allows bail, to act intelligently in fixing the amount.</p>

<p>1. Constitutional Law—Jeopardy.— By section 14 of article 1 of the Constitution of this State it is provided that “ No person for the same offense shall be twice put in jeopardy of life or liberty, nor shall a person be put again on trial for the same offense after a verdict of not guilty in a court of competent jurisdiction.”</p> <p>2. Same — Cases Overruled.—When a person has been placed on his trial upon a valid indictment for an offense involving life or liberty, in a competent court, and a competent jury has been impaneled, sworn, and charged with his case, he is “put in jeopardy ” within the meaning of the said constitutional provision, and from a repetition thereof upon the same indictment, or upon any other indictment for the same offense, this constitutional shield forever protects him. Wherefore, after jeopardy has once so attached, if without lawful authority the trial court discharges the jury without his consent and before verdict, he cannot legally be again tried for the same offense. In so far as a contrary doctrine is held in Moseley v. The State, 33 Texas, 671, and Taylor v. The State, 35 Texas, 97, those cases are hereby overruled.</p> <p>3. Constitutional Construction — Jeopardy.— High authorities hold that Legislatures are not empowered to interpret or declare the construction of a constitutional provision, nor to abrogate the settled judicial construction of a constitutional provision. “Legislative power ” does not comprehend functions which are essentially judicial or executive. Hence it would seem that article 20 of the Code of Criminal Procedure, which in effect would make jeopardy mean no more than “legal conviction,” is without constitutional warrant or validity.</p> <p>4. Same!— The terms former jeopardy having received a settled judicial construction prior to their use in the Constitutions of this State, the presumption obtains that the authors of those Constitutions had that construction in view whenever they inserted that phrase in their provisions; and it follows that no different construction of “former jeopardy ” can be established by legislative enactment.</p> <p>5. Same — Discharge of Trial Jury—Case Stated.—The Code of Criminal Procedure, in article 701, provides that a trial jury may be discharged “ when they cannot agree and both parties agree to their discharge, or when they have been kept together for such a time as to render it altogether improbable they can agree; in this latter case the court, in its discretion, may discharge them.” Appellant was twice tried on the same indictment for felonious theft. On his first trial the jury disagreed, and the court, over his objection, discharged them after they had been in retirement for about three hours without finding a verdict. In explanation of his action in discharging the jury against the objection of the defendant, the trial judge certifies, in effect, that, in his opinion, they had been out a “ reasonable time,” differed honestly, reasonably and unchangeably, as the case had not been fully developed and the evidence was inconclusive, and some of the jurors had been kept out on another case the preceding night. Upon his second trial the appellant pleaded the discharge of the first jury as former jeopardy, but the trial court instructed the second jury to find the plea untrue; which they accordingly did, and convicted the appellant of the felonious theft charged in the indictment. Held, in substance, that the appellant was “ put in jeopardy ” on his first trial, and had the constitutional right to plead that jeopardy in bar of the second trial, inasmuch as the first jury were not discharged because it was “ altogether improbable they could agree,” but for reasons other than those upon which the said article 701 conditions the discretionary power of a trial court to discharge a jury without the consent of the defendant; wherefore the unauthorized discharge of the first jury was tantamount to an acquittal, and the constitutional guaranty against a second jeopardy or trial for the same offense was a plenary defense in the trial whereat the appellant was convicted. See the opinion of the court for an elucidation of this and the preceding rulings.</p> <p>ON MOTION FOR REHEARING.</p> <p>6. Same.— The State having moved for a rehearing, note the opinion of the court thereon, delivered by Hurt, Judge, reasserting and supporting the principles enunciated in the opinion rendered on the original hearing.</p> <p>7. Same — Practice — Judicial Discretion.—The assumption that, notwithstanding the constitutional guaranty against second jeopardy or trial for the same offense, this inestimable bulwark of liberty rests merely in the discretion of the trial judge, and that the exercise of that discretion is not revisable on appeal, cannot be allowed to obtain.</p> <p>8. Discharge of Trial Jury.— The reasons assigned in this case by the trial judge for discharging the jury before verdict, and against the protest of the defendant, were not such as vested that power in- the court below. Note the comments upon them set out in the opinion overruling the motion for rehearing.</p>

<p>1. Forgery — Fact Case.— To constitute the offense of forgery it is not essential that the forged instrument, if true, will actually discharge or defeat an obligation. It will be the subject of forgery if it tends to discharge or defeat an obligation. See evidence held sufficient to support a conviction for forgery.</p> <p>2. Same—Charge of the Court. — Failure of the court to charge the jury upon a question involved in a trial should be objected to, or the accused should seek to supply such omission by requesting a special charge. Otherwise a conviction will not be revised because of such omission, unless prejudice to the accused is made to appear.</p>

<p>1. Incest — Autrefois Acquit—Idem Sonans.— To a prosecution under an indictment charging him with incest with one Pauline Seitz, the accused pleaded an acquittal in a trial for the same offense under an indictment which charged that the offense was committed with one Pauline Leitz. Held, that the plea in bar was not good; that Pauline Leitz and Pauline Seitz are not idem sonans.</p> <p>2. Venue.— Circumstantial Evidence is as competent to establish the venue of the offense as it is to establish any other issue in the case,</p> <p>3; Same.— Mabriage of the parent and the step-parent, where the incestuous intercourse is charged to have transpired between the step-parent and stepchild, may be proved by circumstantial presumptive evidence as well as by a witness who was present at the celebration of the marriage.</p> <p>4. Same — Case Distinguished.— If, in an incest case, the incestuous intercourse being charged to have transpired between a step-parent and child, there be evidence tending to show the former marriage of the child’s parent, it devolves upon the State to establish that such former marriage was annulled either by death or divorce. Such is not the rule in the absence of evidence of a former marriage, and no such burden of proof is imposed on the State. (MeQrem's case, 13 Texas Ct. App., 340, distinguished.)</p> <p>5. Same — Fact Case.— See the statement of the case for evidence held sufficient to support a conviction for incest.</p>

Tried below before the Hon. J. C. Bussell. This is a second appeal from a capital conviction, founded upon an indictment which charged the appellant with the murder of Guadalupe Trevino and one Antonio, in Encinal county, Texas, on the 3d day of May, 1879. See 15 Texas Ct. App., 330. Marta Torres was the first witness for the State.

Tried below before the Hon. J. B. Terry, County Judge. The conviction was for unlawfully carrying away timber from the land of Otto Buohel. The penalty imposed was a fine of $35. The single witness examined testified that the wood carried away was a portion of the hollow trunk of a fallen post-oak tree, and that it could be used only as fire-wood. The sufficiency of the evidence was the ground relied upon in the motion for new trial.

Tried below before the Hon. I. B. McFarland. The conviction in this case was for murder of the second degree, and the penalty assessed against the appellant was a term of twenty-five years in the penitentiary. The homicide was alleged in the indictment, and shown by the evidence, to have been perpetrated in Burleson county, Texas, on the 2d day of June, 1882. Florence Pettis, a Mexican, was the person slain. S. B. Glenn was the first witness for the State.

Tried below before the Hon. J. C. Bussell. The indictment charged that on the 14th day of August, 1884, in Cameron county, Texas, the appellant “ did, by means of a promise to marry, then and there seduce one Cirilda Guerra, then and there a female under the age of twenty-five years,” etc. Being convicted, the appellant’s punishment was affixed at a term of three years in the penitentiary.

<p>Appeal from the District Oourt of Fayette. Tried below before the Hon. L. "W". Moore.</p> <p>The conviction in this case was for the theft of two cows and two calves, the property of Franz Masoh, in Fayette county, Texas, on the 18th day of June, 1883. A term of two years in the penitentiary was assessed against the appellant as his punishment.</p> <p>When the cause was called for trial, on the 17th day of November, 1884, the defendant filed the following plea of former jeopardy and former acquittal:</p> <p>“ The State of Texas ) v. 1 John Schindler. )</p> <p>“And now comes the defendant in the above entitled and numbered cause, and for special plea in this cause pleads former jeopardy, and says that heretofore, to wit, on the 23d day of May, A. D. 1884, he was tried in the district court of Fayette county, in which county the indictment is now pending, upon this indictment and charge, and was, in said court, on said day, acquitted of the accusation herein charged against him, by a jury in the following manner, to wit: This cause being called on the said 23d day of May, 1884, the State and defendant both announced ready for trial; a jury of twelve men, legally qualified, was elected, sworn and impaneled to try the cause; and after hearing the evidence, argument of counsel and charge of the court, they retired to consider of their verdict. Failing to agree upon their verdict said jury was, on the evening of the 23d do)r of May, 1884, discharged by the] court from further consideration of the same; that when they xVWe so charged, the defendant was not in the court room, but x^ias iny county jail of Fayette county, Texas, and knexv nothing tne-mScharge of the jury, and did not consent to their discharge, ^hereupon, premises considered, this defendant pleads former jeopurdy and acquittal, and of this plea prays judgment.” Subscribed aivy sxvorn to, etc.</p> <p>The State’s exceptions to the plea, "1, because insufficient in law, and if true no defense to this prosecution, and, 2, because one of the defendant’s counsel was present and consented to the discharge of the jury, were sustained by the court, and this action of the court-below is the subject-matter of the first head-note of this report.</p> <p>Frank Mozach was the first witness for the State. He testified! that he lived in Fayette county, Texas, about six miles from the town of Schulenburg. He lost three milch cows and calves on the night of June 18,1883. He turned those cows in the pen that night,, and the calves in the pasture, and was of opinion that they were 'taken therefrom between 9 and 10 o’clock. He missed them early on the morning of June 19,1883. He collected several of his neighbors forthwith, and tracked these animals to a point in a lane where one of the cows forced a fence and got into the pasture of Mr. Joseph Tóbala, where she xvas found. The tracks of more than one-horse xvere found folloxving or driving the cows in the lane. The party resumed the pursuit of the remaining two cows, and followed their tracks to a branch, where the tracks of the horses became distinct and fresh again. Here, too, the indications showed the presence of more than one horse. The witness and his party found the two cows and calves at Marion Smith’s on the third day after they were stolen. The animals found at the said Smith’s were the identical cattle lost by the witness. These cattle were taken from the possession of the witness without his knowledge or consent, in said Fayette county, Texas. Witness lived about seventeen miles from the house of the said Smith, and about fourteen miles from the house of the defendant.</p> <p>Cross-examined, the witness stated that he xvent to bed on the night of the thelt betxveen 9 and 10 o’clock, and did not know whether the cattle xvere taken before or after he retired. He missed them early next morning, and followed and found them in Smith’s pasture, in the manner stated. He saw no one take them, nor did he at any time see any one in possession of them.</p> <p>Joseph TobfAla testified that he remembered the time that his Mc/zach lost three milch cows, and he was one of the who w/ent in pursuit on the morning of June 19, 1883. One co^ws was found in his, witness’s, pasture. Witness saw the plac^vnen/ she forced the fence in getting into the pasture, and, on the Soft ground at that point, saw the tracks of two horses which followed the cow in the courses she described in making her escape. The other two cows were found in Marion Smith’s</p> <p>Bill Morgan testified, for the State, that about 8 o’clock on the morning of June 19, 1883, he saw the defendant and Frank Scallorn about four miles beyond Marion Smith’s place. They were to-gather, and were riding in the direction of Smith’s. They had no cows with them at that time.</p> <p>James Kimbrough testified, for the State, that on the morning of June 19, 1883, he saw the defendant and another man driving two cows and calves in the direction of Marion Smith’s. They were then about three and a half miles distant from Smith’s house. Witness at that time knew neither of the parties.</p> <p>Ben McHatt testified, for the State, that on the morning of June 19, 1883, he saw the defendant and a young man whose name he has since learned to be Frank Scallorn, on the La Grange and Flatonia road. They were driving two cows and calves. Witness rode with these two men a distance of about two miles, and while with them asked one of them, he does not remember which, if they were buying cattle. He answered in the affirmative, and witness asked what they paid for the animals they were driving. He replied that they paid $35 apiece, though the cows were aged. Witness stopped on the road for a short time, but soon overtook the defendant and his companion, Scallorn. They were still driving the cows and calves, and had almost reached Smith’s house. As the witness left them near Smith’s, he told them that if they would go with him to Mr. Jones’s, where he, witness, had cattle, he ' would sell to them. They replied that they would go to Jones’s that evening. It was not later than 9 o’clock when the witness saw the defendant and Scallorn with the cattle at Smith’s house. They put the cattle in Smith’s pen, and went into Smith’s yard, towards Smith’s house. Witness could not remember which of the two men did the talking, but, so far as he could see, one had about as much to do with the cattle as the other. Here the State rested.</p> <p>The State admitted, by her prosecuting attorney, that at a previous term, of the court, Frank Scallorn pleaded guilty to the theft of the same cattle concerned in this prosecution.</p> <p>Marion Smith testified, for the State (?), that he was not at home on the morning of June 19, 1883. He passed his house, however, about 10 o’clock on that morning and saw the cows described in the indictment in his pen. He returned to his home about 1 o’clock that evening, and found the cows still in the pen. He saw no person with the cows on either occasion. Later in the evening Frank Scallorn came to witness’s house, sold witness the cattle by bill of sale, and received $50 from the witness for the same.</p> <p>Cross-examined, the witness stated that he was constable of the precinct in which his house was situated, and had been for two years. He and Frank Scallorn were cousins. Soon after the purchase of these cattle, the witness heard that they were stolen animals. On the day following the purchase, the witness went to Frank Scallorn and demanded the return .of the purchase money. Scallorn paid it back in part, and the witness returned him the bill of sale. Witness did not see the defendant at his house with the cattle at any time. It is about ten miles from the house of the witness to that of the defendant, and about fourteen to that of Mozaoh, and the intervening country is thickly settled.</p> <p>Mrs. Mary Schindler, the wife of the defendant, testified in his behalf that, about sunrise on the morning of June 19, 1883, Frank Scallorn came to her house to see the defendant. After talking with her husband (the defendant) a short time, the two rode off together. Witness could neither speak nor understand the English language, and did not know the subject of conversation between the defendant and Scallorn. Defendant returned home about 1 o’clock on that day. He, defendant, was at home the whole of the night of June 18, 1883, and left for the first time when he went off with Scallorn, as stated. Witness did not know Scallorn, nor did she know his name until told by her husband on his return. Defendant was arrested at home about four nights after the occurrences the witness deposed to.</p> <p>Randolph Caldwell, the defendant’s half brother, testified that, at the time of the alleged theft, he was living with the defendant. Early one morning a man, whose name the witness has since learned to be Frank Scallorn, came to defendant’s house, went in, and talked to the defendant for a short time. In a few minutes the defendant and the man Scallorn rode off together. Defendant returned after dinner on the same day. Witness had never before seen Frank Scallorn.</p> <p>Tóbala and McCauley, testifying for the State, in rebuttal, stated that they had lived in the neighborhood, the one twenty-four and the other thirty-one years, and knew that the defendant Frank Scallorn and the witness Randolph Caldwell were well acquainted with each other. They were raised together in the same neighborhood.</p> <p>The motion for new trial raised the questions discussed in the opinion except that embraced in the last head-note, denounced the organization of the jury, complained of the charge as given and of the action of the court in refusing those asked, and impugned the verdict as unsupported both by the law and the evidence.</p>

Tried below before the Hon. B. W. Rimes. The indictment in this case was joint against the appellant and one A. J. Moore, and charged them with the theft of nine hogs, of the value of $25, the property of M. C. Parker, in Bell county, Texas, on or about the 3d day of March, 1884. The appellant being alone upon trial, he was convicted and his punishment was assessed at a term of two years in the penitentiary.

Tried below before the Hon. John C. Stiehl, County Judge. Convicted upon an information charging him with the wilful obstruction of a public road, the appellant was fined in the sum of $10. The State first introduced in evidence the decree of the commissioners’ court of Fayette county, establishing the second-class road thereafter known as the Colorado Biver, Crownover Bend and Cedar Post Office road.

Tried below before the-Hon. B. W. Rimes. The conviction in this case was for perj'ury committed on the-trial of one Vince Johnson in the county court of Bell county for carrying fire-arms into an assemblage of persons. The perjury was alleged to have been committed in Bell county, Texas, on the 8th day of March, 1883. The penalty assessed against the appellant was a term of five years in the penitentary. W. M. Minyard was the first witness for the State.

<p>1. Practice — Continuance.— Failing to state the residences of the absent witnesses or that their residences are unknown; or to state that there was no reasonable expectation of procuring the witnesses by a postponement of the trial to a future day of the term, and to set out the facts expected to be proved by the absent witnesses, an application for a continuance is fatally defective in three particulars.</p> <p>2. Same.— An application for a continuance, to be sufficient, must comply strictly with the requirements of the Code. Nothing can be presumed in aid of an application for a continuance; and, therefore, a general allegation that the absent witnesses will prove the defendant’s innocence will not meet the requirement that the application shall set forth the facts expected to be proved.</p> <p>3. Same— Evidence.— The action of the court below in receiving incompetent evidence will be revised by this court only when it is made to appear by proper bill of exception that it was objected to when offered, or that the court overruled a proper motion to withdraw the same.</p> <p>4 Same — Charge of the Court.— It is the duty of the defendant to except to an unsatisfactory charge at the time it is given, or to seek its correction by asking a special charge.</p>

Tried below before the Hon. H. C. Pleasants. The conviction was for the theft of a horse, the property of T. Eberhart, in De Witt county, Texas, on the 15th day of October, 1884. The punishment imposed by the jury was a term of five years in the penitentiary. The opinion sufficiently discloses the case.

Tried below before the Hon. O. C. Kir yen, County Judge. The appellant in this ease was convicted upon an information charging that he did, on the 15th day of August, 1883, in the county of Freestone, Texas, run a horse race with George Tisdale and others, over a public road. A fine of $25 was the punishment imposed by the jury.

Tried below before the Hon. O. C. ICirven, County Judge. This is the companion case to the preceding one of Harrison v. The State, the conviction being for the same offense—horse racing on a public road — and the penalty being the same. It was based on the same evidence. *.

Tried below before the Hon. E. E. Gaines. The conviction in this case was for the burglary of, and theft from, the house of George and Eliza Lowery, in the city of Paris, and county of Lamar, on the night of September 19,1884. A term of nine years in the penitentiary was the penalty imposed. Eliza Lowery was the first witness for the State.

Tried below before the Hon. J. 0. Townes. The indictment was presented in the district court of Llano county, Texas, on the 14th day of June, 1884. It charged the defendant with the unnatural and revolting crime of incest with his daughter Sarah, in Llano county, Texas, on the 30th day of June, 1882. A term of two years in the penitentiary was the penalty imposed by the verdict. Andrew Dodd was the first witness for the State.

Tried below before the Hon. E. Hobby. The conviction in this case was for the pursuing of the occupation of selling spirituous liquors in quantities less than a quart, without having first obtained a license, and paid the occupation tax thereon. A fine of $300 was the penalty assessed by the jury.

W. E. Collard. The conviction was for the theft of a horse, the property of Jesse French, in Milam county, Texas, on the 10th day of August, 1884. A term of ten years in the penitentiary was the penalty awarded. Jesse French was the first witness for the State. He testified that he lived in Bastrop county, Texas, about two miles distant from the town of McDade. Early in the month of August, 1884, the witness lost a sorrel mare.

<p>1. Sodomy — Interpretation of the Code.— Since the adoption of the Revised Statutes, it is no longer necessary that an offense be expressly defined. Sodomy is, under article 342 of the Penal Code, an offense which can be punished under our law.</p> <p>2. Same — Indictment.— See the opinion for an indictment held sufficient to charge the offense of sodomy.</p> <p>3. Same.— Indictment for sodomy charged that the offense was committed with a “ mare, same being a beast.” Held, sufficient to allege the genus of the beast, a “mare” being defined as the female of the horse or equine genus of quadrupeds.</p> <p>4. Same — Evidence—Fact Case.— Carnal knowledge is as essentially an element of the offense of sodomy as it is of the offense of rape proper, and the rules of evidence which apply to rape cases should be observed in prosecutions for sodomy. Penetration, as in rape, must be proved, though to no particular depth. The jury, however, are authorized to infer penetration from circumstances, without direct proof. See the statement of the case for evidence held sufficient to support a conviction for sodomy.</p>

Tried below before the Hon. W„ H. Ford. The death penalty was assessed in this ease upon the capital conviction of the appellant for the murder of Elbert Smith, in Jefferson county, Texas, on the 5th day of April, 1884. According to the testimony of James Lightfoot, the first witness for the State, the deceased, Elbert Smith, was shot in the eye and killed by the defendant in Jefferson county, Texas, on the night of Saturday, April 5, 1884.

Tried below before the Hon. L. W. Moore. The indictment in this case was joint against the appellant and Walter Seargent and A. L. George, and charged them with the murder of E. Knesek, in Fayette county, Texas, on the 1st day of October, 1884. A severance was had, and, the appellant being alone upon trial, he was found guilty of murder in the first degree, and was awarded the death penalty. Mrs. Anna Knesek, the widow of the deceased, was the first witness for the State.

Tried below before the Hon. L, W. Moore. This is the companion case of Sharpe v. The State, ante, p. 486. The conviction was murder in the first degree, with the death penalty assessed, the victim being E. Knesek. The evidence in both cases was essentially the same. A few additional witnesses, however, testified on this trial, and their testimony alone is summarized in this report.

Tried below before the Hon. E. Maltbie. The conviction in this case was for an assault with intent to murder one William Hill, in Grayson county, Texas, on the 6th day of September, 1884. A term of three years in the penitentiary was the penalty assessed against the appellant. The parties to the controversy out of which this prosecution arose, and all of the witnesses, were negroes. William Hill was the first Avitness examined by the State.

Tried below before the Hon. S. D. Blake, County Judge. The conviction was for the theft of a hog, of the value of $5, the property of Frank Collins, in Austin county, Texas, on the 29th day of July, 1884. The punishment assessed against the appellant was a fine of §10, and confinement in the county jail for the period of fourteen hours.

Tried below before the Hon. IÍ. Maltbie. The conviction in this case, upon which the appellant was-awarded the death pealty, was for the rape of one Catherine Dubbs, in Grayson county, Texas, on the 26th day of October, 1884. Mrs. Catherine Dubbs was the first witness for the State. She testified that she was a resident of the city of Denison, Graysoncounty, Texas. She had known the defendant, Lewis Wilson, since June or July, 1884.

Tried below ¡before the Hon. B. W. Himes. The indictment charged the appellant with the murder of A. T. Moreland in McLennan county, Texas, on the 2Sth day of March, 1883. He was convicted of murder in the second degree, and his punishment was assessed at a term of seven years in the penitentiary. Mr. Fowler was the first witness for the State.

Tried below before the Hon. T. A. Hester, County Judge. The conviction in this case was for the slander of Catherine Cervenka, in Lavaca county, Texas, on the 4th day of November, 1883, by charging her, in the presence of John Frederick and others, with being “ a whore,” and “ a d—d whore.” A fine of $100 was the penalty assessed against the appellant. Mrs. Catherine Cervenka was the first witness for the State..

Tried below before the Hon. G. H. Noonan. The indictment charged the appellant and Ed. Ohase, jointly, with the theft of property over the value of $20, of the corporeal personal property of Frank Taylor, on the 28th day of August, 1884. The appellant being alone arraigned for trial, pleaded guilty, and his punishment was assessed at a term of two years in the penitentiary. The opinion discloses tía© ease.

Tried below before J. W. Hall, Special Judge. The conviction in this case was for the theft of six head of cattle, the property of W. J. Eichardson, on the 10th day of October, 1883. A term of five years in the penitentiary was the punishment assessed by the verdict. W. J. Eichardson was the first witness for the State. He testified that in October, 1883, he lived about one mile north of the town of Oleburne in Johnson county.

Tried below before the lion. A. J. Hood. The conviction in this case was for an assault with intent to rape Mattie Belle Walker, in Tarrant county, Texas, on the 1st day of August, 1883. A term of two years in the penitentiary was the punishment assessed by the verdict. Miss Mattie Belle Walker was the first witness for the State. She testified that she was fourteen years old in May, 1884.

Tried below before the Hon. J. J. Perkins. The conviction was for an assault with intent to rape one Mary Johnson, alias Mary Gibson, in Cherokee county, Texas, on the 1st day of September, 1884. The punishment assessed against the appellant was a term of four years in the State penitentiary. The transcript brings up no statement of facts.

Tried below before the Hon. G. II. Noonan. The conviction was for the theft of a watch, of the value of $75, and a chain of the value of $10, the property of A. Bland and C. E. Wynne, in Bexar coupty, Texas, on the 12th day of Hay, 1884. A term of two years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hon. Gustave Cook. The indictment in this case charged the appellant and one Sam Wilson, jointly, with the murder of Mary Rhodes, the wife of the appellant, in Galveston county, Texas, on the 21st day of October, 1884. A severance was had, and Wilson was first placed on trial, and found not guilty. The appellant was then placed upon trial, found guilty of murder in the first degree, and was awarded the death penalty.

Tried below before the Hon. F. A. Williams. The verdict of the jury finds the defendant guilty of an assault with intent to murder, and awards him a term of two years in the penitentiary. The opinion discloses the case.

Tried below before the Hon. G. H. Aldredge. The conviction in this case was for theft of property over the value of $20. A term of two years in the penitentiary was the punishment assessed. The opinion discloses the case.

Tried below before the Hon. W. P. McLean. In the absence of the purported transcript, which was withdrawn upon motion of the applicants, the Reporters are unable to note the nature of the process under which the applicants, arrested for murder, were detained. The questions involved, however, are fully disclosed in the opinion.

Tried below before the Hon. R. E., Beckham. The conviction in this case was for the robbery of one J. L. Moore, in Tarrant county, Texas, on the 9th day of August, 1884. A term of eight years in the penitentiary was the penalty assessed by the verdict.

Tried below before the Hon. W. H. Burkhart. The conviction in this case was for the theft of a horse, the property of one Shad Thomas, held by one Robert Allen for the said owner. A term of five years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. Gustave Cook. In. this case the appellant was convicted upon an indictment that charged him with the theft of $156 in United States currency, and one pocket-book of the value of $1, the property of T. H. Scanlan, in Harris county, Texas, on the 21st day of September, 1883. He was awarded a term of four years in the penitentiary as punishment. Timothy H. Scanlan was the first witness for the State.

Tried below before the Hon. John H. Norris, County Judge. The indictment charged the appellant with an assault upon Green Bonner, with a pistol, in Brazoria county, on the 1st day of November, 1883. The conviction was for simple assault, and the punishment assessed was a fine of $25. Green Bonner was the first witness for the State.

Tried below before J. W. Hall, Esq., Special Judge. The indictment charged the appellant with the burglary of and theft from the house of H. F. Boyd, in Johnson county, Texas, on the night of the 3d day of October, 1884. The appellant’s trial resulted in his conviction, and his punishment was assessed at confinement in the penitentiary for a term of two years. H. F. Boyd was the first witness for the State.

Tried below before the Hon. L. D. Bradley. On the 9th day of December, 1884, an indictment was filed in the district court of Navarro county, charging Gus Jones, the defendant herein, who is frequently referred to in the statement of facts as 41 Gus,” with the murder of one Nat Williams, in Navarro county, on the 19th day of November, 1884. Defendant was arraigned and placed on trial for said offense, and pleaded not guilty to the indictment.

Tried below before the Hon. S. R. Blake, County Judge. The conviction in this case was for resisting an officer in the execution of a legal warrant of arrest. The punishment assessed against the appellant was a fine of §75. The opinion discloses all material facts.

Tried below before the Hon. Gustave Cook. The conviction was for murder in the second degree, the indictment upon which it was based alleging the murder of Sam Lane, in Harris county, Texas, on the 21st day of September, 1884. Sandy McGee was the first witness for the State. He testified in substance that he knew the deceased Sam Lane, who was killed in Harris county, Texas, on or about September 21,1884. The killing occurred on Sunday morning about 9 o’clock.

Tried below before the Hon. L. D. Bradley. The indictment in this case, filed August 22, 1883, charged the appellant and Joe Hunt, jointly, with the murder of Joe Holmes, in Navarro county, Texas, on the 25th day of July, 1883.

Tried below before the Hon. W. P. McLean. The indictment in this case charged the appellant with the murder of Eobert A. Pastian, in Marion county, Texas, on the 15 th day of April, 1884. His trial resulted in his conviction of murder in the second degree, and his punishment was assessed at a term of sixty years in the penitentiary. The State introduced W. J. Ellington as her first witness. He testified that he was a resident of Marion county, Texas.

Tried below before the Hon. George McCormick. The conviction was for the theft of hogs of the value of $78, in Lavaca county, Texas, the hogs being the property of James Lee, on the 1st day of August, 1882. A term of two years in the penitentiary was the punishment awarded. James Lee was the first witness for the State. He testified that he was the owner of the hogs alleged in the indictment to have been stolen.

Tried below before the Hon. Gustave Cook. The indictment, alleging the offense to have been committed on the lath day of October, 1883, in Harris county, Texas, charged the appellant with the theft of ten head of cattle, the property of J. F. Muskee, one head of cattle, the property of George Patterson, one head of cattle, the property of Will Brookshire, and one head of cattle, the property of George Eoberts.

. Appeal from the District Court of Bexar. Tried below before the Hon. G. H. Noonan. Appellant was charged with the forgery of a telegraphic dispatch purporting to be the act of the Indiana National Bank, and to have been addressed to the Traders’ National Bank, San Antonio, requesting the latter bank to honor W. F. Morrison’s draft on the former for $2,500. The appellant was found guilty, and a term of six years in the penitentiary was assessed as his punishment.