Volume 18 — Texas Court of Appeals Reports

Tried below before W. H. Bullock, Esq., Special Judge. The conviction in this case was for the theft of a heifer, the property of W. B. Helton, in Wise county, Texas, on the 2d day of September, 1884. A term of two years in the penitentiary was the penalty assessed by the jury. W. B. Helton was the first witness for the State.

<p>Theft—Verdict—Penalty.— For theft of property worth less than $20 the penalty imposed may be imprisonment in the county jail not exceeding one year, with or without a fine not exceeding $500, but a fine without imprisonment is a penalty not authorized by law, and a verdict imposing it is contrary to law and cannot stand.</p>

Tried below before the Hon. B. Haltbie. This was the appellant’s second conviction for the theft of a twenty-dollar United States currency bill, the property of Sophia Doss, in Collin county, Texas, on the 23d day of January, 1884. A term of three years and six months in the penitentiary was the penalty awarded upon this trial. The report of the former trial will be found on page 226 of Volume 17 of these Beports.

Tried below before the Hon. F. E. Finer. The case is substantially stated in the opinion. A term of five years in the penitentiary was the punishment assessed against the appellant.

<p>Scire Facias — Bail Bond.— The exhibition of a faro bank is not an offense against the law, unless done for the purpose of gaming. Therefore an appearance bond which describes the offense as “exhibiting a faro bank” is fatally defective.</p>

<p>Appeal from the County Court of Parker. Tried below before the Hon. A. J. Hunter, County Judge.</p> <p>The opinion of the court sets out in substance the charge against the appellant. A fine of §15 was the punishment assessed against him.</p>

Tried below before the Hon. J. B. Darnell, County Judge. The conviction was for unlawfully playing a game of cards, and a fine of $10 was the punishment assessed.

Tried below before the Hon. F. A. Williams. The case is sufficiently disclosed in the opinion. A term of five years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. T. B. Wheeler. The indictment in this case was filed April 7, 1883, and charged that on or about September 12, 1881, Mrs. Margaret Caldwell, in the county of Coleman and State of Texas, “ did deliver and intrust to the care and possession of one T. H. Strong, the said Strong being then and there an attorney at law, and pursuing the business and profession of an attorney at law, $67.50, the same being current money of the United States of America,…

Tried below before the Hon. D. H. Scott. Appellant was indicted by the grand jury of Fannin county, on the 24th day of February, 1888, for the murder of Charley Smith, in said county, on the 2d day of October, 1882. Upon trial he was convicted of murder in the second degree, and was awarded a term of fifteen years in the penitentiary as punishment. Bettie Maloney was the first witness for the State.

Tried below before the Hon. E. Maltbie. The conviction in this case was for the theft of a mule, the property of William Turner, in Collin county, Texas, on the 7th day of March, 1884. A term of five years in the penitentiary was the penalty assessed.

Tried below before the Hon. George McCormick. The conviction in this case was for an assault with intent to murder one George Dent, in Colorado county, Texas, on the 23d day of December, 1881. A term of three years in the penitentiary was the penalty assessed by the jury. George Dent was the first witness introduced by the State.

Tried below before the Hon. Griffin Ford, County Judge. The appellant was convicted of unlawfully carrying a pistol. His punishment was affixed at a fine of $25. J. B. Murch testified, for the State, that on Monday, December 22, 1884, in Montague county, Texas, between the towns of Bowie and Montague, he saw the defendant pull a pistol from his pocket, and point it at a dog.

Tried below before the Hon. T. C. Goodner, County Judge. The subject-matter of the first head-note is the complaint or affidavit on which was based the information against the accused.

Tried below before the Hon. D. H. Scott. The conviction in this case was for theft, from the possession of J. H. Wolf, of a yearling, the property of William Lanius, in Fannin county, Texas, on the 25th day of April, 1884. A term of three years in the penitentiary was the punishment awarded by the jury. William Lanius, for the State, testified that some time in February, 1884, J. H. Wolf proposed to sell him certain described cattle.

Tried below before the Hon. Gr. N. Aldredge. The appellant in this case was convicted of the theft of a cow, the property of D. 0. Trigg and S. H. Johnson, in Dallas county, Texas, on the 1st day of October, 1883. He was awarded a term of two years in the penitentiary as punishment. The indictment (formal parts omitted) under which the prosecution was had reads as follows: “ . . .

<p>1. Unlawfully Acting as an Insurance Agent.— Information charged, in substance, that the defendant solicited insurance on behalf of a designated insurance company, and took and transmitted for one L. an application to said company for insurance, and delivered to said L. a policy of insurance from said company, and received and collected from said L. the premium upon said policy; and that the said company had not then and there complied with the laws of this State, nor received from the commissioner of insurance, statistics and history the required certificate of authority to transact business in this State. Held, that the information sufficiently charges the offense defined by the first and second sections of the act of 1879, “to define who are agents of insurance companies, and to fix their liability for acting without authority of law.” (See Appendix to Revised Statutes, p. 44.)</p> <p>2. Same—Charge of the Court.— It was the intent and purpose of the first section of said enactment to make every person an “agent’’who should commit any of the inculpatory acts. Therefore the trial court correctly instructed the jury to convict the defendant if they found that he had committed such acts, whether he was or was not an agent of the insurance company.</p> <p>3. Same — Burden of Proof.— In a prosecution under the act of 1879, “to define who are agents of insurance companies,"’ etc., it was not incumbent on the State to prove that the insurance company had not complied with the laws of the State, nor received the required certificate of authority. If such compliance and authority were relied on as a defense, it was incumbent on the defendant to prove them.</p>

<p>1. New Trial — Continuance. — In a murder case the defendant asked, but was refused, a continuance sought for the purpose of obtaining the testimony of witnesses in support of his theory of self-defense. At the trial he adduced evidence tending to establish that theory, and the testimony of the absent witnesses, as set out in the application, would have materially fortified that evidence. Diligence to obtain the absent testimony being sufficiently shown, and its materiality being obvious, it is held that the trial court should have granted a new trial because of its refusal of the continuance.</p> <p>2. Evidence — Depositions.— Under article 773 of the Code of Procedure, a sufficient predicate for the introduction in evidence of a criminal deposition may be made by oath that the witness resides out of the State, or that he lias removed beyond the limits of the State, etc. To establish such a predicate, no formal independent oatli is necessary, but, like other proof, it may be made by the testimony of a witness. Seo the predicate laid in the present case, which is held insufficient to show that the witness resided out of the State, but sufficient to show that he had removed beyond the limits of the State.</p> <p>3. Self-defense — Threats — Charge of the Court.— Threats made by the defendant to kill the deceased did not deprive the former of his right to defend himself against an attack made on him by the deceased on account of such threats; and where there was evidence calling for such a charge to the jury, the defense was entitled to have it given distinctly and pertinently.</p>

<p>1. False Packing — Informations—Subplusage.— After charging the appellant and others with falsely packing a bale of cotton, with intent to defraud, the information alleged that B., one of the defendants, sold the falsely packed bale, with intent to defraud. The defense excepted to the information as duplicitous and uncertain, and the exception was sustained to so much of the information as alleged a sale of the bale by B., but was overruled as to the remainder. Held that the ruling was correct. Article 470 of the Penal Code defines two offenses, and one of them, viz., the false packing, was sufficiently charged by the allegations of the information remaining after the exception was sustained to so much of it as alleged a sale of the falsely packed bale. The name of the person to be defrauded need not be alleged. See the opinion for the said article of the Penal Code, and for the charging allegations of the information.</p> <p>2. Evidence — Admissions of Conspirators.— In general the admissions or declarations of a confederate of the defendant on trial are not evidence against him if they were made after the consummation of the unlawful enterprise; but such admissions or declarations are evidence against the party on trial if he was present and acquiesced in them, even after the lapse of some two months since the consummation of the offense and pxior to the commencement of the prosecution. See this case in illustration.</p> <p>3. Fact Case.— See evidence held sufficient to sustain a conviction for the false packing of a bale of cotton, with intent to defraud.</p>

<p>Appeal from the District Court of Colorado. Tried below before the Hon. George McCormick.</p> <p>The indictment in this case charged the appellant with the murder of Minerva Lynch, in Colorado county, Texas, on the 13th day of December, 1884. His trial resulted in his conviction- of murder in the first degree, and he was awarded a life term in the State penitentiary as his punishment.</p> <p>Fannie Harris was the first witness for the State. She testified that she lived in the town of Columbus, Colorado county, Texas, a few steps north of the railroad passenger depot. About midnight on the 11th of December, 1884, Minerva Lynch, in company with Charley Wade, came to witness’s house, bringing with her a valise, a quilt and a blanket, and asked permission to spend the night in the witness’s house, which permission the witness gave, and she remained. Early on the next morning the defendant came to the witness’s house to see Minerva. Fie did not go into the house, and witness did not hear what he or Minerva had to say. Defendant visited witness’s house often on that day. He came back that night and asked Minerva to let him come in and sleep with her, which she refused to do. He then asked her to join him outside, which she likewise refused to do. The defendant then left the witness’s premises, but came back to see Minerva early on the next morning. Soon after he left, or about 10 o’clock, Minerva left the house. Witness next saw the defendant that night, when he came to her house and asked for the valise which Minerva had left there, from which, he said, he wanted to get a shirt. He said nothing about Minerva at first. Witness told him that Minerva left the house on that morning and had not returned, and asked him where she was. Defendant replied that Minerva was a strange woman; that she wTould sometimes leave a jfiace and never say where she was going to. He took the valise and went off towards the passenger depot. After a short time he brought the valise back to the witness’s house, and asked for the quilt and blanket which Minerva brought to the house. Witness gave them to him. He then left and witness saw no more of him until after his arrest.</p> <p>Ten or twelve days after the defendant last left the witness’s house, the witness saw the dead body of Minerva Lynch in a gully near the banks of the Colorado river, in Colorado county, Texas. The body was partly covered up, and had on the same plaid calico dress that Minerva wore when she last left the house of the witness. The throat was cut from ear to ear. Witness gave the valise to Sheriff J. L. Townsend. It was the same valise Minerva left at her house, and the same valise which the defendant got from the witness on the pretext of getting a shirt from it, and which he returned at the time he got the quilt and blanket. When the defendant came to witness’s house for the valise, he said that he was going to Eagle Lake bottom, east of Columbus, to pick cotton. When he brought the valise back he asked witness to keep it until it was called for by some one. Minerva Lynch came to witness’s house on December 11, 1884, and left on the morning of December 13,1884. Iler dead body was found about the last of that month or the first of January, 1885. Witness identified the body, and recognized the dress in which it was clothed as the same dress that Minerva wore when she came to and left the witness’s house the last time. She identified the defendant on trial as Bufus Bryant, the man who called at her house several times to see Minerva Lynch, and who got and brought back the valise and took off the quilt and blanket described. This all occurred in Colorado county, Texas, on the dates stated.</p> <p>Charley Wade was the next witness for the State. He testified that he was employed at the Wootan House in Columbus. He was at the railroad depot on the night that Minerva Lynch came to Columbus. She came to Columbus from the west, on the cars, and when the witness saw her, she was standing alone on the platform with a valise and some bed clothes. She appeared to know no one, and the witness stepped up and spoke to her. She said that she wanted a place to sleep that night. It was then about midnight. Witness told her that he would take her to Fannie Harris’s house, a few steps distant from the depot, which he did, and Fannie told her that she could stay there that night. Witness saw her two or three times next day at Fannie’s house. She remained at Fannie’s house a day and a half and two nights. Witness also saw the defendant at Fannie’s house several times on the day after the night of Minerva’s arrival. Witness saw Minerva at Fannie’s house on the morning of the second day after her arrival, and he also saw the defen lant there on that morning. He saw no more of the woman alive, but about two weeks afterwards saw her dead body in a gully near the river. The throat was cut. Witness saw no more of defendant until after his arrest. He had never seen the deceased before the night of her arrival, nor the defendant before the morning of the next day.</p> <p>Sam Pike was the next witness for the State. He testified that he was at Fannie Harris’s house on the first day after Minerva’s arrival. He offered Minerva service as a cook on behalf of a lady living in Columbus, and Minerva agreed to accept the employment. While witness was talking to Minerva, at that time, the defendant came to the house, called for Minerva and told her that he wanted to speak to her. She made him no answer. Witness passed by Fannie’s house several times on that day, and saw the defendant there each time. Minerva agreed to commence her service as cook for the lady spoken of on the next day, and the witness agreed to call and escort her thither. Witness went to Fannie’s house, to fulfil his promise, between the breakfast hour and noon of next day. While in the house talking to Minerva, the defendant called again and told Minerva that lie desired to speak to her. She answered, “After a while.” Defendant then walked across to the depot, and was sitting on the depot steps when the witness left. Witness went home, and, as the dinner hour approached, went again to Fannie’s to get Minerva and escort her to her place of service. Minerva was gone when the witness arrived. Fannie Harris said that she had gone to the river. Witness waited a short time, left, and returned that night. He then saw the defendant near the railroad depot, putting on a shirt. After he got his shirt on, the defendant brought a valise to Fannie’s house, and asked for the bed clothes Minerva left there. He made no inquiries about Minerva. Witness saw no more of defendant until after his arrest, nor did he see Minerva again, alive. He saw her body, the throat cut, in a gully near the river, some time afterwards. When witness returned from Fannie Harris’s house, just before noon, the time he learned that Minerva had gone to the river, he saw the defendant going down the railroad track towards the river, between the depot and the Wootan House. When Minerva refused, at Fannie’s house, to see defendant, he went to the depot and took a seat on the platform. Persons on the depot platform could easily see any one leave Fannie’s house and go towards the river. Witness next saw the defendant that night, when he was putting on his shirt, as stated.</p> <p>J. L. Townsend was the next xvitness for the State. He testified that he had been sheriff of Colorado county for the last five or six years. About the last of December, 188i, witness was notified that the dead body of a woman had been found in a gully near the river. Witness went immediately to the place indicated, and found the dead body of a woman partially covered up. The lower extremities were uncovered. From the position of the body the witness judged that the rain of the day before had washed the earth off the portions exposed to view. The "body had been buried at the confluence of two gullies. Witness uncovered and resurrected the body, and found it to be that of a w'oman whose throat had been cut from ear to ear. From appearances the woman had been dead about two weeks. The hands were cut in several places, indicating that, in the struggle in which she lost her life, the woman had grasped the knife. A plaid calico dress covered the body, which was identified by several women as that of Minerva Lynch. Martha Henderson and Fannie Harris were among the women who identified the body. An inquest was held by the coroner, and the proceedings developed the fact that the woman had stopped, some time before, at the house of Fannie Harris. Witness then went to Fannie’s house and got a valise which the deceased had left there. Witness opened that valise and examined the contents. Among the clothing witness found a receipt which purported to have been given by W. M. Atkinson, county attorney of Gonzales county, to one Rufus Bryant. Upon getting this receipt witness went immediately to Gonzales. Assisted by Captain W. E. Jones, sheriff of Gonzales county, witness soon learned that there was a Rufus Bryant in Gonzales county, and that he could be found upon Mr. Barbour’s place, near the toAvn of Gonzales. Witness speedily effected the arrest of Rufus Bryant, the defendant on trial, and identified him as a party he, Avitness, saAv in and about the depot in Columbus betAveen the 11th and 13th days of December, 1884.</p> <p>When the Avitness first made the arrest of the defendant he noticed several small spots of blood on his pants. Witness Avarned defendant that he was not required to make any statement Avhatever to him; that he could do so if he Avished, but that the same could be used in evidence against him, but not in his behalf. Several persons Avere present. When Avitness directed attention to the blood spots on the defendant’s pants, he said that they Avere tobacco stains and not blood spots. Witness then informed the defendant that he Avas arrested upon the charge of murdering Miner\Ta Lynch, near Columbus in Colorado county. Defendant then said that he.was in Columbus during the month of the preceding December. Witness then caused the defendant to pull off his shirt, and Avhen he did so the sleeAms of his undershirt Avere found to be very bloody from the wrists to the elboAvs. The undershirt Avas also bloody on the back of one shoulder. This blood on the shoulder seemed to have got there by contact Avitb a bloody hand, the prints of fingers being discernible to Avitness. Defendant at this time made no statement or explanation as to how his undershirt became so bloody.</p> <p>Having made the discoveries narrated, the Avitness placed the defendant in the Gonzales county jail, to await the departure of the train for Columbus, which delay consumed several hours. When he took defendant out of jail to start Avith him to Columbusj defendant volunteered the statement that he got the blood on his undershirt in butchering a hog for Mr. Clark Barbour. He stated at the same time that the bloody undershirt Avas the same one he had on in Columbus,— that while in Columbus he changed his overshirt but did not change his undershirt. He made his change of overshirts, he said, on the platform of the railroad depot in Columbus; that he went to Fannie Harris’s house, got a valise and carried it to the platform, where he took out an overshirt and made the change. He stated further that he had not changed clothing since he left Columbus, and that he was then wearing the same p ints he had on in Columbus.</p> <p>Witness produced the receipt from W. It. Atkinson, county attorney of Gonzales county, to Rufus Bryant, and the valise and contents just as he received them from the hands of Fannie Harris. The}' had been in his possession ever since he got them from Fannie Harris. He produced also the overshirt, undershirt and pants that the defendant was wearing when arrested, and exhibited the same to the jury. The overshirt had no blood on it, nor did it have any blood on it when he arrested the defendant. Defendant told witness that he had on that overshirt when he butchered the hog for Clark Barbour. Witness was neither a blood expert nor a physician, but w'ould swear that, to the best of his knowledge and belief, the substance on the undershirt and pants was blood. The valise contained several articles of female apparel, dresses, sacques, etc. Defendant did not tell the witness what he did with the shirt he pulled off at Columbus. The receipt spoken of reads as follows:</p> <p>“ Gonzales, Oct. 31, 1883.</p> <p>“ Received of Rufus Bryant the sum of forty-five the same being balance due on fine and costs in justice court, precinct No. 5, Gonzales county, in a case in which the State of Texas recovered a judgment against said Bryant for unlawfully carrjdng a pistol.</p> <p>“ W. M. Atkinson,</p> <p>“ Co. Atty.”</p> <p>Martha Henderson was the next witness for the State. She testified that on or about the 12th or 13th of December, 1884, she saw a woman going, alone, from Fannie Harris’s house in Columbus towards the river. That woman had on a plaid dress. About the last day of the same month witness was present at an inquest held over the dead body of a woman which was found in a gully near the town of Columbus. She identified the body as that of the woman she saw going from Fannie Harris’s house towards the river on the occasion mentioned. The dress was the same that that woman had on on that occasion. Witness was not acquainted with the deceased.</p> <p>W. H. H. Wade testified, for the State, that he lived in the town of Luling. He knew the defendant as Rufus Bryant. He knew Minerva Lynch, said to be deceased, and had her in his employ during the month of November, 1884, Witness saw the defendant in bed with Minerva on several different mornings. Witness did not have the defendant in his employ. Witness’s wife hired Minerva in Gonzales. She was at witness’s house in his employ some week or two before the defendant made his appearance. Witness prohibited defendant coming on his place, and in a short time Minerva quit working for witness, and she and defendant left together. Witness did not know where they went.</p> <p>Mrs. W. H. H. Wade was the next witness for the State. The valise and contents were exhibited to witness, and she identified several articles of clothing as the property of Minerva Lynch, particularly an apron which she, witness, had made and sold to the said Minerva. She hired Minerva in Gonzales and took her to Luling in Caldwell county. This was in October, 1884. She knew nothing of the defendant at that time. Shortly after she hired the deceased the defendant made his appearance in Luling.</p> <p>Jake Lynch, the father of the deceased, was the next witness for the State. He testified that about three months before Christmas, 1884, the defendant, who was married to another daughter of the witness, took Minerva off with him. He had not lived with his wife for some time before his elopement with Minerva. Witness did not know where the two parties went to. The defendant was gone, about two weeks, and returned home some two months before Christmas. He did not say where he took Minerva to, nor where he had left her. When he returned he went back to his wife and lived with her until his arrest. The first time that the defendant went off with Minerva, the witness ascertained their whereabouts, followed and brought Minerva back home, but defendant got Minerva again next day and took her off again. Witness was at the railroad depot in Gonzales when the defendant returned the last time before Christmas, and saw him get off the train. He acted very strangely on that occasion, refused to speak to witness, and started off through .the mesquite brush.</p> <p>Clark Barbour testified, for the State, that he lived in Gonzales county. Both the defendant and the deceased lived with witness at one time. Defendant was married to Minerva’s sister, but had not lived with her for some time prior to his elopement with. Minerva, which occurred some two months before Christmas, 1884. He returned about December 15, and lived with his wife until his arrest. A few days after defendant returned to witness’s house, witness caught a hog in the pasture and tied it down. This was about dinner time. Late in the evening he sent a colored man named Will Withers after the hog. Withers returned and said that he could not get the hog into the wagon without help, and witness sent the defendant to help him. Witness did not see the hog when it was brought to the house. The weather was very cold. Having worked for the witness some eight or ten days after his return, the defendant came to witness and told him that he was going to quit, and said something about owing some money. Witness offered to pay his debts for him, when he said that it was useless to pay out money for him, as he was going to leave the d—d country. This was but a day or two before his arrest. Defendant had never butchered a hog for witness. The only hog he ever had anything to do with for the witness was the one witness tied down in the pasture.</p> <p>Frances Williams testified, for the State, that he (or she) saw the defendant in the town of Columbus about two weeks before Christmas, 1884. He came to witness’s house very early one morning, before the witness was out of bed, and brought some bed clothes with him. Witness saw no more of him until after his arrest.</p> <p>Will Withers, for the State, corroborated the testimony of Mr. Clark Barbour with regard to the hog tied down in the pasture, and testified in addition that the hog was dead and stiff when he (alone) first found it. Defendant stabbed the hog as it lay dead on the ground, and assisted witness put it in the wagon, but, if he got any blood on his clothes in doing so, witness did not see it or know it. The State closed.</p> <p>Laura Bryant, the defendant’s wife, was the only witness in his behalf. She testified that the defendant left with Minerva and was gone about two months, returning a week or so before Christmas, 1884, after which time until his arrest he lived with the witness. The witness saw the defendant shoulder the hog spoken of by the "witnesses Barbour and Withers, and carry it from the wagon into the house. The overshirt the defendant had on when arrested was the same shirt he had on when he got back home, and the same one he had on when he carried the hog. Witness identified the shirt in evidence as the one she alluded to. She did not know what kind of an undershirt he had on, as she never saw it to know it. Witness did not change his clothes from the time of his return home until his arrest.</p> <p>The motion for new trial complained that the verdict was not supported by the evidence, and that the charge of the court was upon abstract propositions of law not applicable to the facts, and was upon the weight of evidence.</p>

<p>Assault with Intent to Murder — Charge of the Court—Case Stated.— In the trial of appellant for assaulting one S. with intent to murder him, there was evidence that, in the night-time, and about sixty yards from defendant’s bouse, he found his daughter and S. in close juxtaposition on the ground, and that S., observing defendant’s approach, jumped up, caught the girl’s hand, said “Come on,” and tried to pull her along with him; whereupon she jerked loose from S., and the defendant fired upon him. JETeld, that this evidence sufficed to present the issue whether the defendant had reasonable cause to believe, and did believe, that S. was having or trying to have carnal connection with the girl, and whether such belief so aroused the defendant’s passions as to render him incapable of cool reflection at the time he fired upon. S. The trial court erred in failing to submit that issue to the jury, with instructions that if they determined it affirmatively they should not find the defendant guilty of assault with intent to murder,</p>

<p>Appeal from the District Court of Shelby. Tried below before the Hon. J. Gr. Hazlewood.</p> <p>The opinion of the court sets out all the material testimony of the two principal witnesses for the State, and all of the evidence having any relevancy to the ruling in the case. Two or three other witnesses testified for the State, but their evidence was of little consequence in any respect, and tended in no degree to prove the intent with which the entry of the house was made.</p> <p>A term of three years in the penitentiary was the punishment awarded appellant by the jury.</p>

<p>1. Burglary—Indictment.— When the burglarious entry was made in'the daytime the indictment need not allege that the entry was without the consent of the owner of the house, or that of any other person. .</p> <p>2. Burglary with Intent to Commit Thert — Indictment — Variance.—In charging a burglary with intent to commit theft, an indictment may in a single count allege not only an entry with intent to steal, but also a theft after the entry. When the intent only is relied on, it is not necessary to designate what particular property the accused intended to steal; and when specific articles are unnecessarily designated, a conviction may be had though the proof shows that the accused knew nothing about such articles, provided it clearly appears that he entered with intent to commit theft. Nor will there be a variance between the allegation and the proof if the evidence, going beyond the allegation of the intent only, shows that he actually stole the specific articles unnecessarily designated in the indictment. But if the indictment designates specific articles as those stolen, the proof must correspond with the allegation or there will be a variance.</p> <p>3. Presumption of Intent — Charge of the Court.—By article 50 of the Penal Code it is provided that “the intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.” Nevertheless it has often been held improper to give this article in charge to the jury, inasmuch as the presumption of innocence outweighs that of guilt arising merely from the means used, and it is incumbent on the State, by legal evidence, to overcome the presumption of innocence and establish the guilt of the accused beyond a reasonable doubt.</p> <p>4. Same — Case Stated. — In a trial for burglary with intent to commit theft the trial court instructed the jury as follows: “ If the jury believe from the evidence that the defendant, with the intent to commit the offense of theft, did by force and breaking enter the dwelling-house of B. S. Hardin, in Hunt county, on some day in December, 1884, and did, after such entry and whilst in said house, steal, take and carry away certain personal property belonging to Crude McFaddin, the law presumes, in the absence of evidence to explain the taking, that the entry was made with intent to steal such personal property, although defendant at the time of the entry may not know that such property was in such house.” Held, that this charge was erroneous because it was upon the weight of the evidence, and instructed the jury that the law presumed a fact, to wit, the defendant’s intent, which they could legally find from the evidence alone, and which could not be supplied by presumption,</p> <p>5. Circumstantial Evidence—Charge of the Court.— When the inculpatory evidence is wholly circumstantial, the law controlling that species of proof is a necessary part of the “ law of the case,” and must be given in charge to the jury.</p>

Tried below before riheHIon. J. A. B. Butman. The conviction in this .case was for theft from the person of J. W. JD.unn,. .of 15,, in, Hunt .potpjit.y; Texas, on the 10th day of November, 1884. The punishment assessed by the verdict was a term of seven years in the penitentiary. J. W. Dunn was the State’s first witness. He testified that he first saw the defendant at an auctioneer’s stand in Greenville, Hunt county, Texas, on the 10th day of November, 1884.

Tried below before the Hon. GT. H. TSToonan. Convicted of perjury, the appellant was awarded, as punishment, a term of five years in the penitentiary. The charging part of the indictment reads as follows: “. . .

Tried below before the Hon. L. W. Moore. The indictment charged the appellant with the murder of Harry Taylor, in Bastrop county, Texas, on the 6th day of April, 188-1. His trial resulted in his conviction of murder in the second degree, and his punishment was affixed at a term of twenty-five years in the penitentiary. Doctor J. D. Oliver was the first witness for the State.

<p>Appeal from the District Court of Freestone. Tried below before the Hon. L. D. Bradley.</p> <p>All material facts are stated in the opinion of the court.</p>

Tried below before the Hon. E. E. Beckham. The facts of the case are fully disclosed in the opinion of the court. A term of two years in the penitentiary was the punishment assessed against the appellant by the jury.

Tried below before the Hon. T. A. Falvey. The indictment in this case was presented by the grand jury of El Paso county, in the district court of the said county, on the 15th day of October, 1883. It charged the appellant with the murder of Thomas Mode, in El Paso county, on the 11th day of July, 1883. The venue was changed to Presidio county on the application of the appellant.

Tried below before the Hon. Edwin Hobby. The indictment in this case charged the appellant with, the murder of Jack Venters, in Liberty county, Texas, on the 2d day of December, 1882. Ilis trial resulted in his conviction of murder in the second degree, and his punishment was affixed at a term of ten years in the penitentiary. Mattie Brown was the first witness for the State. She testified that the deceased, Jack Venters, was her first husband.

Tried below before the Hon. F. A. Williams. The indictment charged the theft of property worth more than $20, and therefore a felonious theft, and the jury found him guilty as charged, and assessed his punishment at five years in the penitentiary.

Tried below before the Hon. L. D. Bradley. The conviction in this case was for the forgery of a school voucher or check, in Freestone county, Texas, on the 5th day of September, 1882. The penalty imposed by the jury was a term of seven years in the penitentiary. County Judge O. C. Kirven was the first witness for the State. He testified that he had held his present position for the last eight years. He knew the defendant and pointed him out in court.

Tried below before the Hon. T. B. Wheeler. Appellant was indicted and convicted for counterfeiting a silver dollar of the current coin of the United States. Ho statement of the evidence appears in the record. The only contested question seems to have been that of jurisdiction, which is sufficiently indicated in the opinion of this court. As the punishment of appellant, the jury assessed a term of five years in the penitentiary.

Tried below before the Hon. T. B. Wheeler. The indictment charged that the appellant did “unlawfully and feloniously take, steal and carry away a certain horse not his own property, but then and there the property of J. M. Hanna,” etc. A term of five years in the penitential was the penalty allotted by the jury.

Tried below before the Hon. R. E. Beckham. On January 16,1885, the grand jury of Tarrant county presented an indictment charging Horace Matlock, the appellant, with the murder of W. A. Youngblood, on the 29th of the preceding December, by shooting him with a pistol. Soon afterwards, being in arrest under a copias issued upon the indictment, he applied for and obtained the writ of habeas corpus for the purpose of determining his right to give bail.

Tried below before the Hon. T. L. Hugent. Hpon an indictment charging him with the murder of John Coop, in Coryell county, Texas, on the 30th day of July, 1881, the appellant was convicted of murder in the first degree, and was awarded a life term in the penitentiary as his punishment. W. T. Vincent was the first witness for the State.

Tried below before the Hon. J. S. Cleveland, County Judge. The opinion discloses the case. A fine of $25 was the penalty imposed upon the appellant.

Tried below before the Hon. George McCormick. On the 22d day of June, 1883, an indictment was returned into the district court of Gonzales county, charging the appellant Frank Kelley and Jodie Blain with the theft of an animal of the horse species from the possession of James A. Baker, who was then and there holding possession for the owner, Mrs. Margaret Squires.

Tried below before the Hon. W. A. Blackburn. The conviction in this case was for the burglar)?- of the blacksmith • shop of J. N. Broughton, in Comanche county, Texas, on the 27th day of November, 1883. A term of five years in the penitentiary was the punishment imposed. J. N. Broughton was the first witness for the State. He testified that he lived in the town of De Leon in Comanche county, Texas, and was the proprietor of a blacksmith shop situated in that town.

Tried below before the Hon. George McCormick. The appeal in the present case is from, a second conviction on the same indictment for the theft of a beef steer belonging to Sandy Glover, on ¡November 1, 1881. At a previous trial the appellant was convicted, but on appeal to this court the conviction was set aside, for reasons apparent in the seventeenth volume of these Deports, page 261.

Tried below before the Hon. J. M. Pearson, County Judge. All matters of fact involved in the rulings are sufficiently disclosed in the opinion of the court.

Tried below before the Hon. T. M. Paschal. A term of five years was the punishment assessed against the appellant. The record contains no statement of facts, and the opinion of this court discloses everything relevant to the rulings.

Error from the District Court of Medina. Tried below before the Hon. T. M. Paschal. The opinion sufficiently states the case. The amount of the bond and judgment was §500.

Tried below before the Hon. W. A. Blackburn. Ho matters of evidence are involved in the rulings. A term of two years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hon. W. H. Burkhart. The indictment upon which the appellant in this case was convicted charged him with the theft of a horse, the property of A. F. Wheeler, in the county of Fort Bend, Texas, on the 16th day of July, 1883. A term of seven years in the penitentiary was the penalty assessed by the jury.

Tried below before the Hon. T. B. Wheeler. This appeal is from a judgment final rendered on the forfeited bail bond of one W. Drury, charged with an assault with intent to murder P. H. Odom. The amount of the bond and judgment was §500.

Tried below before the Hon. T. B. Wheeler. The conviction was for the offense of offering to bribe a wdtness in a criminal proceeding. The penalty imposed was a term of two years in the State penitentiary. II. L. Ilefflefinger was the first witness for the State. He testified that lie was at his father’s house in Brown county, Texas, on the first Sunday after the district court of Brown county convened, in March, 1884, which was about the 30th day of the month.

Tried below before* the Hon. T. M. Paschal. The conviction in this case was for the theft of a horse, the property of A. H. Boales, in Kendall county, Texas, on the 2Sth day of October, 1882. A term of five years in the State penitentiary was the penalti' imposed by the verdict. A. II. Boales was the first witness for the State. He testified, that in October, 1882, he lived in Bandera county, Texas, but now lives in Edwards county.

Tried below before the Hon. B. Q-. Childress, County Judge. The case is stated in the opinion. A fine of $20 was the penalty imposed on the appellant for selling merchandise, to wit, a drink of whisky, on Sunday, to the State’s witness Leroy Farabee; “ against the peace and dignity of the State.” Appellant was proprietor of a saloon.

Tried below before the Hon. W. M. Minyard, County Judge. This is the companion case to that of McRay v. The State, which will subsequently appear in this volume. The convictions were based upon precisely the same testimony, being for the wilful and wanton killing of a mare and a mule, the property of J. 0. Fulwiler. A fine of §50 was the penalty imposed in this case.

Tried below before the Hon. B. W, Dimes. This conviction was for the theft of a mare, a saddle and bridle, and an overcoat, the property in part of Charles O. Faulkenhagen, and in part of George Faulkenhagen, in Falls county, Texas, on the 23d day of November, 1883. A term of five years in the penitentiary was the punishment assessed by the jury. 0. 0. Faulkenhagen was the first witness for the State.

Tried below before the Hon. B. W. Himes. The conviction in this case was for an assault with intent to rape one Jessie Massey, in Falls county, Texas, on the 2d day of August, 1884. A term of two years in the penitentiary was the penalty assessed by the jury. Jessie Massey was the first witness for the State.

Tried below before the Hon. L. D. Bradley. Appellants were the sureties on the bail bond of one William Duncan, who-was indicted for embezzlement. The bond and the judgment were for the sum of §700. The opinion of this court discloses all matters germane to the rulings.

Tried below before the Hon. John E. Crawiord, County Judge. This appeal is from a conviction for a simple assault, for which a line of $40 was imposed on the appellant.

Tried below before the Hon. B. G. Childress, County Judge. The opinion states the case.. A fine of $25 was the punishment-assessed against the appellant.

Tried below before the Hon. J. M. Bosborough, County Judge. The appellant was tried alone and convicted upon an information that charged him, jointly with one Archie McFarland, with the offense of wilfully and wantonly killing a mare and a mule, the property of one J. C. Fulwiler, in Bell county, Texas, on the 31st day of October, 1883. A fine of $100 was the penalty assessed by the jury. J. C. Fulwiler was the first witness for the State.

Tried below before the Hon. J. S. Cleveland, County Judge. The conviction in this case was for the theft of a hog, the property of J. J. Fitzinger, in Brown county, on the 5th day of February, 1885. A fine of $5 and one hour in jail was the penalty imposed. John Burns was the first witness for the State. He testified that, some time in February, 1885, he drove a number of hogs from the range to the pens near his house in Brown county, Texas.

Tried below before the lion. J. E. Crawford, County Judge. The conviction in this case was for the theft of a hog, the property of J. L. Sanson, in Bobertson county, Texas, on the 25th day of November, 1884. A fine of §10 was the punishment inflicted on the appellant. The State first introduced J. L. Sanson as a witness. He testified that he lived in the northeast corner of Bobertson county, Texas.

Tried below before the Hon. John E. Crawford, County Judge. The conviction in this case was for the violation of the “ Sunday Law,” the indictment charging the appellant, as a trader in a lawful business, with the sale, on a designated Sunday, of “merchandise.” The penalty imposed by the verdict was a fine of $20. In the preceding case of Moseley v. The State, ante, p. 311, will be found a construction of the statutes under which this prosecution was had.

Tried below before the Hon. J. M. Hall. The conviction in this case xvas for an assault with intent to murder one E. M. Jones, in Hill county, Texas, on the 17th day of October, 1884. The punishment assessed by the jury was a term of two years in the penitentiary. E. M. Jones, the alleged injured party, was the first witness introduced by the State.

Tried below before the Hon. B. D. Simpson, County Judge. Under an information charging him with an aggravated assault and battery upon the person of James Ferris, in Johnson county, Texas, on the 1st day of January, 1885, the appellant was convicted of simple assault, and his punishment was affixed at a fine of $5. James Ferris, the alleged injured party, was the first witness for the State.

Tried below before the Hon. E. C. Stuart, County Judge. The opinion and the head-notes sufficiently disclose the case so far as the rulings are affected by the facts. The case was submitted to the court upon the facts as well as the law, a jury being waived, and the appellant was found guilty and adjudged to pay a fine of $10 and all costs.

Tried below before the Hon. B. W. Himes. The indictment charged the appellant and one Steve Blakely with the theft of a cow, a yearling and a two-year-old heifer from the possession of Loyd Barnes, the owner, on December 5,1883. A term of two years in the penitentiary was the penalty assessed against appellant. Loyd Barnes was the first witness for the State.

Tried below before the Hon. E. C. Stuart, County Judge. The appellants in this cause were tried by a jury and convicted at the March term, 1885, of the county court of Falls county, of knowingly causing cattle to go upon the inclosed land of G. W. Kinard. The defense was not guilty, and the main issue relied upon for the defense was the permission of the parties in actual possession of the premises to turn in the cattle.

Tried below before the Hon. L. D. Bradley. The indictment in this case was a joint one against the appellant and one John Bagley. It charged them with the murder of Savannah Brown, in Limestone county, Texas, on the 13th day of March, 1885. Being alone upon trial, the defendant pleaded guilty, and the jury assessed his punishment at confinement in the penitentiary for life. The record brings up no statement of facts.

Tried below before the Hon. W. J. Ewing, County Judge. The conviction was for a violation of the local option law, and the penalty imposed was a fine of $25. It is sufficient, by way of statement, to say that but for the failure to prove the contents of the petition, and thereby the existence of a legal order of election, the State would have proved its case.

Tried below before the Hon. E. C. Stuart, County Judge. The conviction was for the violation of the local option law, and the penalty imposed was a fine of §25. Except for the deficiency noted in the opinion, the State would have been entitled to a conviction upon the evidence adduced.

Tried below before the Hon. L. D. Bradley. The conviction in this case was for swindling one L. A. Hord, in Limestone county, Texas, on the 18th day of January, 1884, by selling him a mule which he claimed to own, but which belonged to another. The penalty imposed was a term of two years in the penitentiary.

Tried below before the Hon. F. A. Williams. The appellant was convicted in the first degree for the murder of Mattie Murchison, in Houston county, Texas, on the 2Sth day of December, 1883, by cutting and stabbing her with a knife, and by striking; and beating; her with clubs, sticks and other instruments unknown to the grand jury. The death penalty was assessed by the jury. Both the appellant and his victim were negroes.

Tried below before the Hon. W. E. Collard. This conviction was for forgery under an indictment which alleged that the false instrument of writing was “substantially as follows: Mr. J. D, Smith, Dear Sir: I will leave $2.50 at Dr. Smythe’s drug store for you next Saturday. I will either come in myself or Mr. -(whose name the grand jury do not know) will bring it. (Signed) Dr. J. S. Edge.” A term, of two years in the penitentiary was the punishment assessed by the jury.

Tried below before-the Hon. D. P. Marr. The appellant was indicted at the March term, 1885, of the district court of Live Oak county, for the murder of J. D. Edwards, in said county, on the 15th day of December, preceding. On trial he was found guilty of murder in the second degree, and his punishment was fixed at twenty years in the penitentiary. Doctor Gf. P. Eeagan was the first witness for the State. He testified that he knew the deceased during his life-time.

Tried below before the Hon. D. P. Marr. The conviction in this case was in the second degree for the murder of J. D. Edwards, in Live Oak county, Texas, on the 15th day of October, 1884. A term of twenty years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hon. Leo Eogan, County Judge. The conviction in this case was for following the occupation of selling spirituous liquors in quantities of one quart and less than five gallons, without having first obtained a license, and paid the necessary tax. A fine of $300 was the penalty imposed by the jury. J. S. Medaris was the first witness for the State.

Error from the District Court of Erio. Tried below before the Hon. D. P. Marr. This writ -of error was prosecuted from final judgment upon the forfeited appearance bond of 0. Wallen, bailed under a charge of cattle-theft. The amount of the bond and the judgment was $500. The opinion discloses the case.

Tried below before the Hon. B. D. Simpson, County Judge. The conviction in this case was for pursuing the occupation of selling intoxicating liquors in quantities less than one quart, without first having obtained license so to do and paid the taxes therefor. A fine of $450 was the penalty imposed by the jury. B. Beal was the first witness for the State.

Tried below before the Hon. B. D. Simpson, County Judge. The conviction was for an aggravated assault upon one James Noah, at Johnson county, Texas, on the 13th day of December, 1884. A fine of $250 was the penalty imposed by the verdict. James Hill was the first witness for the State.

Tried below before the Hon. B. Maltbie. The conviction was for the theft of a horse, the property of John Douglass, in Collin county, Texas, on the 28th day of August, 1884. A term of eight years in the penitentiary was the penalty assessed by the verdict. Charles Miller was charged in the same indictment, but was not upon trial. John H. Douglass was the first witness for the State. He testified that he lived in Collin county, five miles north of Farmersville.

Tried below before the Hon. W. A. Blackburn. The appellant was charged by indictment at the June term, 1884, of the district court of Lampasas county, with the theft of a horse, the property of A. G-. Wheeler. The offense was alleged to have been committed on the 29th day of January, 1884. At the December term, 1884, the defendant was tried and convicted and sentenced to the penitentiary for the term of five years. T. S. James ivas the first witness for the State.

Tried below before the Hon. Z. T. Fulmore, County Judge. The conviction in this case was for selling intoxicating liquors to Byrd McLaughlin, a person under the age of twenty-one years. The penalty imposed by the verdict was a fine of §25. The first head-note of this report refers to the charging clause of this indictment. It is as follows: “. . .

Tried below before the Hon. G. H. Hoonan. The conviction in this case was for the theft of eighteen pairs of trousers, of the aggregate value of §36, the property of L. Moke, in Bexar county, Texas, on the 26th day of February, 1885. The penalty assessed against the appellant was a term of four years in the penitentiary. L. Moke was the first witness for the State.

Tried below before the Hon. P. O. Ford, County Judge. The conviction was for giving away intoxicating liquor on election day, and the penalty assessed was a fine of $100. : The facts of the case are not involved in the ruling.

Tried below before the Hon. W. E. Collat'd. The conviction in this case was for the theft of two watches, the property of -Bowles (whose Christian name was to the grand jurors unknown), in Brazos county, Texas, on the 5th day of March, 1877. A term of five years in the penitentiary was the punishment assessed by the jury against the appellant. Mrs. Willie Bowles testified, for the State, that, seven or eight years prior to this trial, she lived in Bryan, Brazos county, Texas.

from the District Court of Montague. Tried below before the Hon. F. E. Finer. The conviction was for the theft of three head of cattle, the property of Mrs. Martha Green, in Montague county, Texas, on the 20th day of December, 1883. The penalty imposed by the jury was a term of three years in the penitentiary. The first witness for the State was young Mr. Green, the son of the prosecutrix.

Tried below before the Hon. D. P. Harr. This was a capital conviction for the murder of Gr. M. Hodges, in La Salle county, on the 7th day of March, 1885. Hugh Morrison, the first witness for the State, testified that about 3 o’clock on the evening of the homicide, he went to the railroad office at Encinal Station, to transact some business. The defendant, with a Winchester rifle in his hand, was the. only man in the office.

Tried below before the Hon. F. E. Finer. The appellant in this case was convicted of arson in the burning of the court-house of Montague county, Texas, on the 31st day of March, 1884. A term of ten years in the penitentiary was the penalty awarded. The record brings up a statement of facts covering some forty pages of legal cap.

Tried below before the Hon. A. S. Walker. The indictment in this case charged the appellant with the murder of one William Chandler, in Travis county, Texas, on the 27th day of December, 1884. His trial resulted in his conviction of manslaughter, and he was awarded a term of two years in the penitentiary.

Tried below before the Hon. Benton Randolph. The conviction in this case was for an assault with intent to rape, committed upon the person of Agnes Podraza, on the 10th day of August, 1884. A term of two years in the penitentiary was the penalty imposed by the verdict. The appellant was shown to be a negro, and the assaulted female a Pole.

Tried below before the Hon. Gh H. Hoonan. The indictment in this case charged the appellant, William Miller and F. Gr. Hichols jointly with the theft of $3,700 in money, the property of E. S. Wood and Poley Reed. The appellant being alone upon trial was convicted, and his punishment was assessed at a term of five years in the penitentiary.

Tried below before the Hon. T. J. Duke, County Judge. The conviction was for the violation of the local option law, in Hood county, Texas, on the 4th day of March, 1884. The penalty imposed was a fine of $25.

Tried below before the Hon. G. H. Aldredge. The appellant was convicted in the first degree for the murder of F. E. Umphress, in Dallas county, Texas, on the 16th day of June, 1884. His punishment was assessed at a life term in the State penitentiary. John Minton, of Terrell, Kaufman county, Texas, was the first witness introduced by the State. He testified that in June, 1884, he was in the employ of Chris Fisher in Dallas county, Texas. He did not know the deceased.

Tried below before the Hon. A. S. Walker. The indictment in this case was joint against the appellant and his brother, Tom Pierson, and charged them with the murder of J. C. Stovall, in Travis county, Texas, on the 16th day of March, 1885. A severance being had, the appellant was first placed upon trial, was convicted, and awarded as penalty a term of thirty years in the penitentiary. Dennis Corwin was the first witness for the State.

Tried below before the Hon. G. N. Aid red ge. The conviction in this case was for the robbery of F. D. Lavois and his wife, M. E. Lavois, in Dallas county, Texas, on the-day of January, 1885. A term of four years in the penitentiary was the penalty assessed by the jury. F. D. Lavois was the first witness for the State. He testified that he lived at Eagle Ford, Dallas county, Texas, where he kept a store.

Tried below before the Hon. E. G. Bower, County Judge. The prosecution and conviction in this case were had under an information which charged the appellant with the violation of article 186 of the Penal Code, as amended at the regular session of the Eighteenth Legislature. The offense charged consisted in the sale of intoxicating liquor on Sunday. A fine of $20 was the punishment assessed against the appellant. The opinion sufficiently discloses the case.

Tried below before the Hon. E. C. Stuart, County Judge. The appellant was convicted of pulling down the fence around the pig pen of Ogesse Beckwell, in Falls county, Texas, on the 10th day of April, 1884, and was fined in the sum of $10. Ogesse Beckwell testified, for the State, that the defendant was his brother-in-law, having married his sister. He and defendant lived adjoining each other in the same lot, and had so lived for a number of years.

Tried below before the Hon. T. M. Paschal. The indictment in this case was joint against the appellant and John Heilman, and charged them with the murder of John Scott, in Bandera county, Texas, on the 26th day of February, 1883. The appellant being alone upon trial, he was convicted of murder in the second degree, and his punishment was assessed at a term of eight years in the penitentiary. Haney Scott, the wife of the deceased, was the first witness for the State.

Tried below before the Hon. W. E. Collard. The death penalty was assessed against this appellant upon his conviction in the first degree for the murder of Jerry Bussell, in the county of Brazos, on the 7th day of June, 1884. Gabriel Turner was the first witness for the State. He testified that the church of which he was a member and the defendant a preacher had a choir meeting on Thursday night before the day of the homicide.

Tried below before the Hon. G-. H. Noonan. The indictment in this case, filed on the 2d day of April, 1885? charges the appellant with the murder of Dora Burkhard, in said county, on the 31st day of March, 1885, by shooting her with a pistol.

Tried below before the Hon. J. M. Hall. The conviction in this case was for the burglary of the house of one William Johnson, in Johnson county, Texas, on the 26th day of April, 1885. A term of two years in the penitentiary was the penalty assessed. William Johnson, the first witness for the State, testified that he lived with his father on his farm in Johnson county, Texas.

. Tried below before the Hon. W. H. Ford. The indictment in this case was joint against the appellant and John Thomas, and charged them with an assault with intent to murder one George Fagan in Jefferson county, Texas, on the 25th day of December, 1884. The appellant being alone upon trial was convicted, and awarded a term of two years in the penitentiary. No question of fact is involved in the disposition of this appeal.

Tried below before the Hon. J. M. Hall. This appeal is prosecuted from the appellant’s second conviction under an indictment which charged him with the burglary of the store-house of IT. F. Boyd, in Johnson county, Texas, on the 3d day of October, 1884. It was had upon substantially the same evidence as that which was adduced upon the former trial, and which is set out at length in the report of that case, beginning on page 598 of volume 17 of these Reports.

Tried below before the Hon. J. M. Hall. The conviction in this case was had under an indictment which charged the appellant as a principal in the theft of $126.75, the property of W. G-. Finley, in Hill county, Texas, on the 23d day of April, 1884. A term of two years in the penitentiary was the punishment assessed against the appellant. W. G-. Finley was the first witness for the State.

Green. Tried below before the Hon. William Kennedy. The conviction in this case, for which the appellant was awarded a term of five years in the penitentiary, was for the robbery of John Bowe, in Tom Green county, Texas, on the 23d day of June, 188.4. John Bowe was the first witness for the State. He testified that he lived in Tom Green county, Texas. He came to the town of San Angelo on the evening of June 23,1884, with Mr. Charles Barron, for whom he had been working.

Tried below before the Hon. A. S. Walker. The conviction in this case was for an assault with intent to murder one Al. Eainey, in Travis county, Texas, on the 4th day of November, 1884. The penalty assessed by the jury was a term of two years in the penitentiary. Al. Eainey was the first witness for the State. He testified that for the past twenty-five years he had lived at Manor, in Travis county, Texas.

Habeas Corpus on appeal from a judgment refusing bail rendered by the Hon. George McCormick, judge of the twenty-fifth judicial district, in and for the county of Wilson. The applicants were held under capiases charging them with the murder of D. S. Overstreet. 11. II. Faust was the first witness for the applicants. He testified that he was at the place of the killing.

Tried below before the Hon. A. 8. Walker. The conviction in this case was for an assault with intent to murder one Ed. Whitis, in Travis county, Texas, on the 15th day of September, 1884. A term of three years in the penitentiary was the penalty assessed against the appellant. Ed. Whitis was the first witness for the State. He testified that for fifteen years past he had been a resident of the first ward in the city of Austin.

Tried below before the Hon. William Kennedy. The appellant in this case, a Chinaman, was convicted in the first degree for the murder of another Chinaman, one Chan Sing, in Tom Green county, Texas, on the 20th day of July, 1884. Doctor Branch was the first witness for the State. He testified that, some time during the year 1884, he was called to Ben Ficklin with the jury of inquest to view a dead body.