Volume 19 — Texas Court of Appeals Reports

Tried below before the Hon. J. I. Perkins. The conviction in this case was for an assault with intent to murder one Sam Leggett, in Polk county, Texas, on the 24th day of December, 1884. A term of two years in the penitentiary was the' penalty awarded by the jury.

Tried below before the Hon. T. M. Paschal. The indictment charged the appellant, jointly with one Lawrence Hobbs, with the theft of a horse, the property of Wesley Yivion, in Kerr county, Texas, on the 15th day of April, 1884. The appellant being alone upon trial, he was found guilty, and his punishment was assessed at a term of five years in the penitentiary.

Tried below before the Hon. J. M. Duncan, County Judge. The conviction in this case was for the slander of Miss Mattie Gowan, an unmarried female, by declaring, in substance, that she was a whore. The offense was alleged to have been committed in Smith county, Texas, on the 5th day of July, 1884. The penalty assessed against the defendant was a fine of $100, and a term of ten days in the county jail. George Brown was the first witness for the State.

• Habeas Corpus on appeal from the District Court of Holán. Tried below before the Hon. William Kennedy. The indictment under which the writ of habeas corpus in this case was sued out was filed in the district court of Holán county, Texas, at its June term, 1885. It charged the applicant with the murder of Ben Warren, by shooting him with a gun, in Holán county, Texas, on the 10th day of February, 1885.

Habeas Corpus on appeal from the District Court of Nolan. Tried below before the Hon. William Kennedy. This is the companion case to the preceding one of Ex parte Boyett, the indictment charging the same offense. Upon the same state of facts testified to by the same witnesses who were examined in Bovett’s case, bail was refused this applicant and he was remanded to the custody of the sheriff.

Tried below before the Hon. F. E. Finer. The conviction was for the robbery of G. W. Powell, in Cooke county, Texas, on the 17th day of September, 1884. A term of twelve years and eight months in the penitentiary was the penalty assessed by the jury. The disposition made of the case renders a statement of the facts proved unnecessary.

Tried below before the Hon. J. I. Perkins. A fine of $25 was assessed against the appellant upon his conviction for unlawfully carrying a pistol. The opinion summarizes the evidence. The motion for new trial raised the question discussed in the opinion,

Tried below before the Hon. J. I. Perkins. Held: and witness thought it best not to track up the ground. Witness started to summon help within fifteen minutes after he arrived at defendant’s house, and was gone two hours or more. The defendant stayed at home all of the night of December 24th, and was at home when Anderson arrived.

Tried below before the Hon, Gf. N. Aldridge. The conviction in this case was for the theft from the person of A. J. Harper of a pocket-book and $15, in Dallas county, Texas, on the 1st day of January, 1885. A term of three years in the penitentiary was the punishment assessed against the appellant. A. J. Harper was the first witness for the State. He testified that, on the 22d day of November, 1884, he arrived in Dallas, Texas, on his way from Alabama to Arlington, Texas.

Tried below before the Hon. W. P. McLean. The conviction in this case was had under an indictment charging the appellant with the violation of article 684 of the Penal Code, in that he wilfully, and without the consent of the owner, broke open and left open a certain gate leading into the inclosure of one Green Floyd. The venue of the offense was laid in Cass county, and it ivas alleged to have been committed on the 1st day of May, 1884.

Tried below before the Hon. F. J. McCord. Held: and the body was stiff. Tucker Boss, the next witness for the State, testified that he lived in Smith county, eight miles northwest from Tyler. He last saw Taylor alive, late on the evening of February 12, 1885. He came by witness’s house from Tyler, going towards his own house about a mile northwest from witness’s house.

Tried below before the Hon. J. J. Bell, County Judge. The conviction in this case was for the theft of a hog, cf the value of $12, the property of E. H. Moores, in Bowie county, Texas, on the 10th day of June, 1882. The punishment assessed against the appellant was confinement in the county jail for the term of thirty days.

Tried below before the Hon. W. J. Johnson, County Judge. The information in this case was joint against the appellant and one Ellen Davis, alias Ellen Boger. It charged them with the offense of adultery, in that they, each of them having a lawful surviving spouse, “did unlawfully live together, and have carnal intercourse with each other,” from the 9th day of May, 1883, until the 12th day of October, 1883, in Titus county, Texas.

Tried below before the Hon. J. C. Eussell. Held: for aught he knew, within three inches of the deceased’s head, or fired from a distance of three feet. Since the killing of Riley, witness had lived in Monterey, Mexico, and Columbus, Texas. He had attended the State normal school since then. Prior to that time he had little or no education, and followed the trade of a boot-black.

Habeas Corpus on appeal from the District Court of Edwards. Tried below before the Hon. T. M- Paschal. The opinion of the court sufficiently discloses the nature of the case.

Habeas Corpus on original application prosecuted from Milam county by the applicant, who was detained under a charge of violating the local option law. The opinion states the case.

<p>1. Habeas Corpus — Appeal—Case Stated.— Applicant was arrested upon a warrant issued by a justice of the peace, upon a complaint charging him with the violation of the local option law. He applied to the county judge for the writ of habeas corpus, which was granted, but upon the hearing of the same the county judge remanded the applicant to the custody of the officer, and the applicant appeals. The assistant attorney-general moves to dismiss the appeal, because, 1. The justice of the peace had acquired jurisdiction of the case, and also of the person of the applicant, and therefore the county judge could not interfere by the writ of habeas corpus, and, the county court having no jurisdiction, this court acquired none by the appeal, 3. Because it does not appear from the record that the applicant is in actual custody or restrained of his liberty. 3. Because the record has not been sent to this court in the manner required by law. The motion to dismiss the appeal is overruled because the writ of habeas corpus was fully authorized by articles 139 and 195 of the Code of Criminal Procedure. Held, further, that as the record shows the remand of applicant to the custody of the officer, the presumption obtains that he is held in custody by said officer in obedience to the order. And, further, that the rules governing the transmission of transcripts to this court, on appeals in other criminal cases, do not govern in habeas corpus appeals; such appeals being specially provided for and regulated, and no particular mode being prescribed for bringing the transcripts before this court. (Code Grim. Proc., art. 881.)</p> <p>2. Same—Local Option Law.—Inasmuch as an election under the local option law which was not conducted in accordance with the requirements of the law is absolutely void, rendering absolutely void every proceeding had thereunder, the legality of the same may be questioned not only directly but collaterally. Habeas corp>us was an available remedy in this case, and as the evidence shows a failure to properly post notices of the election, the same was illegal, and the judgment of the lower court remanding the applicant must be reversed and the applicant discharged.</p>

Tried below before the Hon. Gustave Cook. Under an indictment which charged him with the murder of Frederick Tate, in Galveston county, Texas, on the 12th day of August, 1883, the appellant was convicted in the second degree, his punishment being affixed at a term of fifteen years in the penitentiary. Mrs. Emily Tate, the widow of the deceased, was the first witness for the State.

Tried below before the Hon. William Kennedy. The indictment charged the appellant with the murder of E. Price Ogle, in Jones county, Texas, on the 3d 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 forty years in the penitentiary. B. F. Britton was the first witness for the State.

Tried below before the Hon. George McCormick. The indictment in this case was joint against the appellant and one John Phillips. It charged them with the theft of five head of cattle, the property of James W. Baker, in Gonzales county, Texas, on the 1st day of January, 1882. The joint trial of the two defendants resulted in the acquittal of John Phillips and the conviction of the appellant, and the assessment against him of a term of two years in the penitentiary.

Tried below before the Hon. J. C. Bussell. The indictment in this case charged the appellant with the murder of Albert Sheldon, in Nueces county, Texas, on the 4th day of August, 1885. His trial resulted in his conviction of manslaughter, and his term of imprisonment in the penitentiary was affixed at five years. Ben Sheldon, a brother of the deceased, was the first witness for the State.

Tried below before the Hon. W. P. McLean. The charging clause of the indictment in this case reads as follows: “ . . . that one Lee Walker, late of said county, on the 19th day of August, A. D. 1884, and in said county of Marion, did unlawfully, and with his express malice aforethought, kill and murder one James D. Holt, by shooting him with a gun; contrary,” etc. The conviction under this indictment was for murder of the second degree, and the penalty assessed against the…

Tried below before J. M. Maxey, Esq., Special Judge. This indictment was presented in the district court of Trinity county, Texas, on the 4th day of November, 1880.

<p>Appeal from the County Court of Titus. Tried below before the Hon. W. J. Johnson, County Judge.</p> <p>The information in this case charged the appellants, Charles Hildreth and Mary Curry, alias Mary Hildreth, with the offense of adultery, in that they “ unlawfully and continually lived together and had carnal intercourse with each other from and on April 25, 1882, until November 23,1882, in Titus county, Texas.” They were jointly tried and convicted, and their punishments were assessed at fines of $100 each.</p> <p>The State first introduced in evidence the marriage license issued to John Curry and Mary Counts, on the reverse of which was indorsed the certificate of the minister of the gospel who solemnized the marriage of the said John Curry and Mary Counts, in Titus county, Texas, on the 6th day of July, 1876.</p> <p>Ben Wiley was the first witness for the State. He testified that he knew both of the defendants at and prior to the time mentioned in the indictment. He saw them married to each other some time in the spring of 1882. The marriage ceremony was performed on the bridge across Cypress creek, which marked the boundary line between Titus and Camp counties. It took place at about 9 o’clock at night, the two defendants, Parson Culpepper, L. M. Jones, Dick Wiley and witness being the only parties present. Since the date of that marriage the defendants have lived together as man and wife. Whether or not they so lived together prior to that marriage the witness was unable to say. Witness and Dick Wiley made a crop on Mr. Jones’s farm in Titus county in the year 1882. The defendants lived together on that farm during that time, and occupied the same bed. The L. M. Jones spoken of was the step-father of the witness and the grandfather of the defendant, Mary Curry, alias Mary Hildreth. Witness knew John Curry. The said John Curry was alive. Dick Wiley, the State’s second witness, testified substantially as did the first witness.</p> <p>Bev. J. T. Culpepper testified, for the State, that he solemnized a marriage between the defendants, on the bridge across Cypress creek, which marked the boundary line between Titus and Camp counties, on the night of April 14, 1882. Witness was sent for in the evening, and on his arrival at the house that night he was informed that the party had to go to the Cypress bridge to be married, as the marriage license issued in Camp county. The party accordingly repaired to the bridge, and the witness performed the ceremony of marriage between the defendants in the presence of L. M. Jones and Ben and Dick Wiley. Witness knew one John Curry, and knew him when he was married to Mary Curry, alias Mary Hildreth, one of the defendants in this case, in 1876. The said John Curry and the defendant Mary lived together as man and wife from the time of their said marriage until John Curry was sentenced and sent to the penitentiary in 1879. John Curry still survives. He returned to Titus county, for the first time after his sentence to the penitentiary, a week or two before the affidavit in this case, charging the defendants with adultery, was filed. That affidavit was made by the witness. The mother of the defendant Mary died while the said Mary was still a small child, and the said Mary, from that time until her marriage to Curry in 1876, when she was fifteen or sixteen years old, lived with her grandparents. Mary’s father was not in Titus county at the time of her marriage to Curry. Witness did not know his whereabouts.</p> <p>Sidney Suggs, the next witness for the State, testified that he saw the defendant Mary, on or about the 1st day of March, 1882, when she told him that she had heard from John Curry; that he was out of the penitentiary, and at work for Colonel Covey in Grayson county, Texas, and that she expected him home soon. A month or six weeks after this conversation, the witness, much to his surprise, heard of Mary’s marriage to Charles Hildreth.</p> <p>Mrs. M. J. Cress testified, for the State, that she had known the defendant Mary from her childhood. . Mary lived with her grandfather, who was the father of the witness, until her marriage to John Curry in 1876. Curry was sent to the penitentiary in 1879, and returned to Titus county in November, 1882. Witness had heard her father say, prior to November, 1882, that Curry was dead. Mary had lived with Charles Hildreth as his wife, ever since their marriage in April, 1882. When Curry returned to Titus county in November, 1882, he went to the witness’s house. Defendants both knew him to be there alive, but they never separated from each other, but continued and still continue to live together as man and wife.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. A. W. Moursund. The indictment in this case, filed December 11, 1884, charged the appellant with the murder of James B. O’Ban non, in Llano county, Texas, on the 22d day of July, 1884. His trial resulted in his conviction of murder in the first degree, and his punishment was assessed at a life term in the penitentiary. B. H. Laning was the first witness for the State.

Tried below before the Hon. George McCormick. The conviction in this case was for the theft of four head of cattle alleged to be the property of John and .Fred Duderstadt, in Gonzales county, Texas, on the 5th day of January, 1883. The penalty assessed against the appellant was a term at two years in the penitentiary. John Duderstadt was the first witness for the State. He testified that he was the John Duderstadt referred to in the indictment.

<p>Habeas Corpus on original applications from Navarro County.</p> <p>The opinion discloses the cases.</p>

Tried below before the Hon. A. S. Walker. The first count in the indictment in this ease charged the appellant and one Jeff Moore, jointly, with wilfully driving from its accustomed range in Williamson county, Texas, on the 29th day of May, 1884, the horse of S. M. Man tooth, without the consent of the owner, and with the intent to defraud the owner of the same. The second count charged, in usual form, the theft of the said horse.

Tried below before the Hon. D. P. Marr. Upon evidence which established against him a murder rarely paralleled in wanton atrocity, the appellant in this case was convicted of murder in the first degree, and awarded the death penalty.

<p>Appeals from the District Court of Cooke. Tried below before the Hon. F. E. Finer.</p> <p>The convictions in these cases, with their respective terms of imprisonment in the penitentiary, were, in the order of the case numbers, as follows: Robbery, five years; horse theft, eight years; theft, five years; murder in the second degree, eighteen years, and horse theft, fifteen years.</p>

<p>!• Manslaughter —“ Adequate Cause.”— The four illustrations of “ adequate cause ” set out in article 497 of the Penal Code are not the only ones which will reduce a homicide from murder to manslaughter. On the contrary, it had been laid down as a correct rule that “ any condition or circumstance which is capable of creating (and does create) sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection, whether accompanied by bodily pain or not, is adequate cause.”</p> <p>2. Same.— It is positively declared by article 492 of the Penal Code that no verbal provocation will justify an assault and battery; and article 596 of the same Code is equally positive in the declaration that “insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, or an injury to property, unaccompanied by violence, are not adequate causes ” sufficient to reduce a homicide from murder to manslaughter. But held that, though no one of these causes, alone and independent of the others, can be deemed adequate cause to reduce a homicide from murder to manslaughter, yet, if they all combine and exist conjointly with each other, they may, thus united, become such adequate cause. See the opinion in extenso on the question.</p> <p>3. Same — Evidence — Charge op the Court — Case Stated.— In a trial for assault with intent to murder it was in proof that C., the alleged injured party, charged the defendant with improper relations with his, C.’s, wife, . and that the defendant was claiming for himself the paternity of Mrs. C.’s child; which charges were emphatically denied by the defendant and were vehemently reasserted by C., who thereupon seized the defendant by his collar and shook him, when the defendant pushed C. off and patted him on the shoulder; that C. then ordered defendant to keep his hands off, and was still cursing defendant when defendant fired upon and shot C. through an arm. These facts being proved, the defendant proposed to disprove the charges made by C., and to show that his relations with the wife and child of C. had been and were entirely innocent and proper. This proof the trial court rejected as being too remote and irrelevant. Held, that, in view of the facts proved, the rejected evidence was competent and should have been admitted, and have been permitted to go to the jury in connection with a charge upon manslaughter to the effect that if, from the insults and assault, coupled together as adequate cause, they believed that the defendant committed the act under the immediate influence of sudden passion, such as anger, rage or sudden resentment sufficient to render his mind incapable of cool reflection, then they could find him guilty of no higher grade of offense than aggravated assault.</p> <p>4. Same —“ Cooling Time.”—It is a rule of law applicable to this class of cases that, “however great the provocation may have been, if there be sufficient time for the passion to subside and for reason to interpose, the homicide will be murder. But if the wound was given by the prisoner while smarting under a provocation so recent and so strong that the prisoner might be considered as not being at the moment the master of his own understanding, the offense will be manslaughter.” Under this rule, the proof in this case showing that, after C. was made to release his hold upon defendant, some two or three minutes elapsed before defendant fired, the court should have submitted to the jury the question of “ cooling time,” in connection with the charge upon manslaughter.</p>

Tried below before the Hon. J. E. Dillard, County Judge. The conviction in this case was for defacing a building in Kaufman county known as the school-house of the Baker Prairie school community. A fine of $10 was assessed against the appellant.

Tried below before the Hon. J. H., Rice, County Judge. The conviction in this case was for the theft of a pair of pants, of the value of $7, the property of Mallory & Allen, a firm composed of S. T. Mallory and Jacob Allen, in Navarro county, Texas, on the 1st day of December, 1882. The punishment assessed by the jury was a fine of $10, and confinement in the county jail for the period of one day. T. E. Triplett was the first witness for the State.

Tried below before the Hon. G. N. Aldredge. The conviction in this case, which was supplemented by an award of a term of twelve years and six months in the penitentiary, was for the rape of Emma Elapp, a female nine years of age, in Dallas county, Texas, on the 21st day of February, 1885. The State first introduced the prosecutrix, Emma Elapp, a female child nine years of age.

Habeas Corpus on. appeal from an order issued in chambers, on the 31st day of October, 1885, by the Hon. Pinckney S. Ford, county judge of Milam county, Texas, refusing to release the applicant, and remanding him to custody under a complaint charging him with the sale of intoxicating liquors, in violation of the “ Local Option Law.” The opinion sufficiently discloses the case.

Tried below before the Hon. L. D. Bradley. The appeal in this case is from the judgment final on the forfeiture of the bail bond of Jack Dixon, bailed on a charge of cattle theft. The amount of the bond and judgment was $750. The opinion discloses the case.

Tried below before the Hon. J. S. Sherrill, County Judge. The conviction was for an aggravated assault upon one Alex. Ablowich, the information alleging that the said aggravated assault was committed by the appellant, with a certain “ bois d'arc stick, the same being a deadly weapon,” in Hunt county, Texas, on the 18th day of August, 1884. A fine of $2o was the penalty imposed; Alex. Ablowich was the first witness for the State.

Tried below before the Hon. J. S. Sherrill, County Judge. The conviction in this case was for the theft, in Hunt county, Texas, on the 26th day of November, 1884, of an overcoat, of the value of $5, the property of A. Devveese. The punishment assessed against the appellant was a fine of $5 and confinement in the county jail for the terra of twenty-four hours.

Tried below before the Hon. J. A. B. Putman. On January 15, 1885, the grand jury of Hunt county indicted Asberry, Reuben and John Ricks jointly, charging them with theft of six hogs valued at $6 each, the property of O. B. Robinson, in Hunt county, Texas, on the 30th day of November, 1884. A severance was had, and at the July term, 1885, of the court, appellant was convicted and sentenced to two years’ confinement in the penitentiary.

Tried below before the Hon J. S. Sherrill, County Judge. The conviction in this case was for the sale of intoxicating liquor to J. M. Moody, a minor under the age of twenty-one years, without the written consent of his father, J. H. Moody. A fine of $20 was assessed against the appellant.

Tried below be> fore the Hon. J. E. Dillard, County Judge. The conviction was for wilfully obstructing a public road known as the Elmo and Hunt county line road, in Hunt county, Texas, on the 1st day of January, 1884. The, penalty imposed was a fine of $5.

<p>Appeals from the District Court of Navarro County. Tried below before the Hon. L. D. Bradley.</p> <p>The opinion discloses the cases.</p>

Tried below before the Hon. B. E. Beckham. The conviction in this case was for the theft of a horse, the property of B. H. Smith, in Parker county, Texas, on the 28th day of April, 1885. A term of seven years in the penitentiary was the penalty assessed against the appellant. B. H. Smith was the first witness for the State. He testified1 that, in April, 1885, he was living at the house of J. H. Frazier, near Agnes, in the county of Parker.

Tried below before the Hon. A. W. Moursund. The case is fully disclosed in the opinion. A full recital of the evidence would give no clearer statement of the inculpatory facts proved than is contained in the opinion. A term of two years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hon. F. E. Finer. The conviction in this case was for the theft of one head of cattle, the property of J. F. Wilkins, in Wise county, Texas, on the 1st day of April, 1885. A term of two years in the penitentiary was the penalty assessed against the appellant. M. W. Shoemaker was the first witness for the State. He identified the defendant as the man from whom, in October or November, 1884, he purchased the animal alleged to be stolen.

Tried below before the Hon. D. H. Scott. The conviction in this case was for the theft of a horse, the property of Newton Wilkes, in Fannin county, Texas, on the 4th day of August, 1884. A term of six years in the penitentiary was the penalty assessed. Newton Wilkes was the first witness for the State. He testified that he lived in Fannin county, Texas, and knew the defendant, whom he identified in open court.

Tried below before the Hon. D. P. Harr. The appellant in this case was convicted under an indictment which charged him with the theft of two horses, the property of Manuel Leal, in Atascosa county, Texas, on the 15th day of June, 1884. His punishment was assessed at a term of five years in the penitentiary. Manuel Leal was the first witness for the State.

Tried below before the Hon. Anson Bainey. Held: then and there feloniously, wilfully and with malice aforethought, did discharge and shoot off to, against and upon the said A. J. Saffell, and the said William.

Tried below before J. IT. Rice, Esq., Special Judge. The indictment in this case was joint against the appellant and J. M. Fuller. It charged them with the theft of two yearlings, one the property of T. C. Sparks, and the other the property of Mrs. A. Tickle, in Navarro county, Texas, on the 15th day of April, 1883.

Tried below before the Hon. J. C. Russell. The conviction in this case was for an assault with intent to murder, committed upon the person of one Encarnación Diaz, in Encinal county, Texas, on the 29th day of April, 1884. A term of ten years in the penitentiary was the penalty awarded. Quirino Perales testified, for the State, that in April, 1884, he was constable of Encinal county, which for judicial purposes was attached to Webb county.

Tried below before the Hon. T. M. Paschal. The indictment in this case charged the appellant with the murder of Peter Johnson, in Kinney county, Texas, on the 1st day of November, 1884. His trial resulted in his conviction of murder in the first degree, and the death penalty was affixed. Demetrio Hernandez was the first witness for the State. He testified that he lived on Mud creek, in Kinney county, Texas.

Tried below before the Hon. F. E. Finer. The conviction in this case was for the theft from the possession of T. W. Sims of three head of cattle, the property of J. C. Thomas, in Denton county, Texas, on the 20th day of December, 1884. A term of three years in the penitentiary was the penalty assessed against the appellant. ■ T. W. Sims was the first witness for the State.

Tried below before the Hon. T. M. Paschal. The conviction in this case was for an assault with intent to murder one John Holland, in Kinney county, Texas, on the 2d day of July, 1883. A term of two years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hon. E, P. Kearby, County Judge. The opinion sets out the charging part of the information, which discloses the case. The punishment assessed against the appellant was a fine of $50 and confinement in the county jail for the period of twenty-four hours.

Tried below before the Hon. J. H. Turner, County Judge. ■ The conviction in this case was for gaming with “ five corns.” The penalty assessed was a fine of $25.

Tried below before the Hbn. T. B. Wheeler. The indictment contained two counts. The first charged the appellant with the theft of one head of cattle, the property of some person to the grand jurors unknown, in Brown county, Texas, on the 27th day of October, 1883. The second count charged the theft of the same animal and alleged the ownership in H. Y. Smith. The appellant was convicted, and was awarded a term of two years in the penitentiary as punishment.

Tried below before the Hon. W. A. Blackburn. The conviction in this case was for the theft of a horse, the property of David Stricklin, in Burnet county, Texas, on the 30th day of June, 1885. A term of five years in the penitentiary was the penalty assessed upon the appellant’s plea of guilty.

Tried below before the Hon. J. S. Sherrill, County Judge. The conviction in this case was for the offense of selling intoxicating liquors in violation of the “ local option ” law. A fine of $25 was the penalty assessed. The opinion sufficiently discloses the case.

Tried below before the Hon. L. B. Cobb, County Judge. The conviction in this case was for selling intoxicating liquors in violation of the “ local option ” law, and the penalty assessed against the appellant was a fine of $25. The sale of the intoxicating liquor was conceded by the appellant, and he rested his defense upon the questions discussed in the opinion.

Tried below before the Hon. J. H. Turner, County Judge. The conviction in this case was had under an indictment (transferred from the district court) charging the appellant with selling intoxicating liquors without license. A fine of $300 was the penalty imposed by the jury.

Tried below before the Hon. T. B. Wheeler. The conviction was for the theft of a steer, the property of George Hill, in Brown county, Texas, on the 20th day of August, 1884. A term of two years in the penitentiary was the penalty assessed against the appellant. W. W. Hood was the first witness for the State.

. Error from the County Court of Kaufman. Tried below before the Hon. J. E. Dillard, County Judge. The writ of error in this case was prosecuted from a final judgment on the forfeiture of the bond of ¡Neil McIntyre, bailed upon a charge of misdemeanor theft. The amount of the bond and judgment was $100.

Tried below before the Hon. J. H. Turner, County Judge. The appellant in this case was convicted for selling whisky in violation of the “ local option law,” and fined the sum of $35. The opinion embraces that portion of the agreed statement of facts essential to the completeness of this report.

Tried below before the Hon. J. H. Bice. The conviction in this case was based upon an information which charged that the appellant, by force and threats of force, prevented one B. A. Wilson, a deputy tax collector of Navarro county, Texas, from collecting certain taxes due by him. The punishment assessed was a fine of §100, and confinement in the county jail for the period of three months. B. A. Wilson was the first witness for the State.

Tried below before the Hon. T. B. Wheeler. The conviction in this case was for the theft of a horse, the property of W. L. Spraggins, in Comanche county, Texas, on or about the 17th day of April, 1884. The penalty assessed against the appellant was a term of ten years in the penitentiary. W. L. Spraggins was the first witness for the State. He testified that he knew the defendant, whom he pointed out in court.

Tried below before the Hon. I. B. McFarland. The indictment in this case charged the appellant with the murder of John Davis, in Washington county, Texas, on the 10th day of August, 1884, by cutting him with a knife. His trial resulted in his conviction of manslaughter, and his punishment was assessed at a term of two years in the penitentiary.

Tried below before the Hon. T. B. Wheeler. The conviction in this case was for the theft of one head of cattle, the property of some person to the grand jury unknown, in Comanche county, Texas, on the 1st day of July, 1885. A term of two years in the penitentiary was the penalty assessed against the appellant. Tom Stewart was also charged in the indictment, but the appellant was alone upon trial, a severance having been awarded.

Tried below before the Hon. T. B. Wheeler. The conviction was for the theft of a cow and calf, the property of J. C. Gray, in Comanche county, Texas, and the penalty assessed against the appellant was a term of two years in the penitentiary. The evidence is sufficiently summarized in the opinion of the court.

Tried below before the Hon. Benton Randolph. The conviction in this case was for the theft of a colt, the property of David Solley, in Grimes county, Texas, on the 25th day of October, 1883. A term of five years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hón. J. G-. Bussell, County Judge. The-opinion of-the court discloses the nature of the case, and states sufficiently the import of the evidence adduced upon the trial. The penalty imposed was a fine of $-10.

<p>Appeal from the District Court of Mason. Tried below before the Hon. A. W. Moursund.</p> <p>• This appeal is prosecuted from a conviction for burglary, and a judgment in accordance with the verdict, which assessed the penalty at a term of five years in the penitentiary. The indictment charged the burglary of the dwelling-house of August Apelt, in Mason county, Texas, on the 10th day of June, 1884, and the theft therefrom of certain personal property of said August Apelt, consisting of one gold breast-pin, one pair of cuff buttons, one jack-plane, four towels, and one six-shooter.</p> <p>August Apelt was the first witness for the State. He testified that he lived in Mason county, Texas, about five miles northeast from the town of Mason. He was acquainted with the defendant, whom he identified in court. The witness, in company with his wife, left his home on the 10th day of June, 1884, in the morning, to spend the day at the house of a neighbor. Leaving home he closed all of the doors to his house, and saw that all of the windows were down. On his return that evening he found one of the windows raised, and the articles stored in the house were scattered about in great confusion. Investigation disclosed that several articles had been taken from the house, and among them, which witness then missed, were a suit of clothes, a half sack of coffee, a jack-plane, a gold breast-pin, a pair of sleeve buttons, a clothes brush, four towels, some knitting cotton, and a lady’s overcoat which belonged to his wife. Witness then proceeded to search for indications of the presence of an intruder, and found foot-prints about the place made by someone walking in stocking-feet. The witness and Fritz Lei-fester followed this track from the house through a small field, for about four hundred yards, when it was lost. Following this trail a second time, witness found his six-shooter where it had been dropped by the person who took it from the witness’s house.</p> <p>Acting upon certain information which he obtained from persons living in the neighborhood, the witness, on the morning after the burglary, went to the town of Mason and sued out a search warrant to search the premises .of the defendant. He then went to the defendant’s house with Sheriff Butler, and aided in the search, which, resulted in the discovery in a trunk of the gold breast-pin, the sleeve buttons, the clothes brush, the four towels, the jack-plane, and the knitting cotton. The sheriff got the trunk bey from the defendant’s wife. The defendant and his brother Charley were out at the cow pen when the witness and the sheriff first came in view of the house. As soon as he saw the witness and the sheriff, the defendant started off in the direction of his father’s house, and passed around his own house as though to avoid the sheriff. The sheriff intercepted and arrested him. While the search of the premises was in progress, the defendant managed to elude Messrs. Ainsworth and Henry, in whose charge the sheriff left him, and escaped. The sheriff and Fritz Leifester pursued him on horseback, but failed to overhaul him. The house of the defendant was situated about one mile and a half distant from the witness’s. The track which the witness followed from his house through the field, and on which he found his six-shooter, led in the direction of the defendant’s house. The witness never gave the defendant permission either to enter his house or to take the articles mentioned therefrom. Witness had never recovered the half sack of coffee.</p> <p>Cross-examined, the witness testified that he was absolutely certain that the articles mentioned as those taken from the defendant’s trunk were his, the witness’s, and were taken from his house on the 10th day of June, 1884. The defendant was a married man and lived in a house separate from his father, but in the same yard. Witness had known the defendant some three or four years, and believed that the defendant was possessed of enough intelligence to discriminate between right and wrong. The defendant made trades on his own account, and exchanged labor with his neighbors, day for dajL</p> <p>J. C. Butler, sheriff of Mason county, Texas, testified, for the State, that on or about the 12th or 13th day of June, 1884, the witness August Apelt came to the town of Mason and procured warrants for the arrest of the defendant, and for the search of the defendant’s house for stolen goods. These warrants were placed in the witness’s hands for execution, and the witness, with Apelt and Fritz Leifester, repaired to the defendant’s house, which was situated about six miles from town. Just before the house was reached, witness saw the defendant out at his cow lot. When he saw the Avitness and his party, the defendant scaled his fence and started, by a back way, either to his own or the house of his father, which two bouses Avere situated in the same inclosure about forty yards apart. Witness intercepted the defendant and told him he was under arrest. Defendant, hoAvever, refused to stop, even when the witness laid his hand on him, and struggled so violently in his effort to reach the house that he tore his shirt and clothing. Having secured his arrest, the witness left the defendant in charge of James Ainsworth and George Henry, and proceeded to execute the search warrant. The search resulted in the discovery, in the bottom of a large trunk in the defendant’s house, of a gold breast-pin, a pair of sleeve buttons, four towels, one jack-plane, one clothes brush, and some knitting cotton; all of which articles Apelt claimed as his property, and to have been taken from his house. Defendant’s Avife was present. She refused at first to surrender the key to the trunk, declaring that it contained only infants’ clothing. After a long parley witness told the defendant’s wife that unless she surrendered the key he would be compelled to take the trunk to Mason. Thereupon she exacted a promise from the witness not to kill the defendant, and gave up the key. While the search of his trunk was in progress, the defendant escaped from his guards and got into his father’s house. He presently emerged with a Winchester rifle in his hand, passed back with it through his father’s house, and ran off through the fields. Witness and Leifester mounted their horses and attempted to pursue him, but could make no progress horseback over the boggy ground. Defendant made good bis escape, but was subsequently, after about six months, recaptured by the witness in San Angelo, about one hundred and twenty miles distant from Mason. If defendant was ever back in Mason county after,his escape in 1884, until he was brought back by the witness, the witness did not know it.</p> <p>: James Ainsworth testified that he was at the defendant’s house when the latter was arrested for the burglary of Apelt’s house in-June, 1884. Defendant was left in charge of the witness and George Henry while Sheriff Butler, Apelt and Fritz Leifester were in the house searching for Apelt’s missing, articles. He ran into his father’s house and presently rethrned to the front door with a Winchester rifle leveled on witness and Henry. He then sprang through a rear window and ran off through a field. Sheriff Butler and Fritz Leifester pursued him on horseback but failed to overtake him. The witness saw the defendant again late that evening, near Valley Springs, in Llano county, which was about fifteen miles distant from his home. He was coming down a mountain when witness first saw him on that evening, the Winchester still in his hands but the butt pointed towards witness. He hallooed to witness,came to the camp where witness and Henry were, laughing, and-passed the night in that camp. He said that night that he was sorry he went into August Apelt’s house; that Ragety Hampty had' txvo pistols, pulled them out and showed them to him, and then took position and stood watch while he went into Apelt’s house.-. Defendant then asked if the sheriff and Apelt found anything in' tiis house. Witness told him what they found, and he remarked “ Why in the h—11 didn’t my wife and Charley hide them so he ¿ouldn’t find them ? ” Witness asked him to tell where the- half sack-of coffee was; that it would do no one any good now, and that if-he would tell witness where to find it, he, witness, would -get- it and return it to Apelt. ' Defendant replied that the coffee was safe and’ would do somebody some good,- and refused to tell- the .witness where it was. Defendant slept that night in the brush about one hundred yards from the camp. He slept on his gun, and, after breakfasting with witness and Henry next morning, went off through the woods. He boasted of his ingenuity in making his escape. He said that while the women folks were “ taking on,” and he waving his hands as though to quiet them, he kept getting gradually closer to the house of his father until near enough, when he sprang through the door and secured the gun.</p> <p>George Henry was the next witness for the State. His testimony " was almost verbatim the same as that of the witness Ainsworth, even to the conversation with the defendant at camp on the night after the escape, about the half sack of coffee, which he related in the same words, as having transpired between himself and defendant.</p> <p>Fritz Leifester testified, for the State, that he went with Sheriff Butler to the defendant’s house to execute a search warrant on the day after the burglary of Apelt’s house. Most of the articles claimed by Apelt to have been taken from his house were found in a large trunk in the defendant’s house. Witness saw the tracks described by Apelt at Apelt’s house, and followed them through a small field and across a branch in the direction of the defendant’s house. Witness told Apelt if the burglar was the man whom he suspected, his tracks would be found in the field at the branch spoken of. Accordingly, they went to the branch and found the tracks there. Apelt then went to Mason and sued out papers for the arrest of the defendant and the search of his house.</p> <p>Cross-examined, the witness testified that he had known the defendant during the past five years, and that, for that time at least, the defendant had borne the reputation of being a petty thief. He had often heard the defendant accused of pilfering small articles. He had, since he had known the defendant, regarded him as a weak-minded man. His mind seemed to run principally on thieving and stealing,— such at least was the witness’s opinion, based upon frequent conversations with him. He had often mentioned small articles to the witness and asked witness to what amount bail would be exacted if he stole them, and on one occasion he asked witness if, after stealing a yearling, should he do so, and forfeiting his bond, could he still be prosecuted for the theft. Witness was not on good terms with defendant,— “ don’t like such fellows.”</p> <p>Ee-examined, the witness testified that he had never heard of the defendant returning or paying for anything he had ever stolen, and he was perfectly satisfied that the defendant had ample ability to comprehend the nature of his acts, and distinguish right from wrong in regard to theft.</p> <p>Samuel Garnett testified, for the State, that he lived between the houses of defendant and A pelt. Shortly after noon on the day that Apelt’s house was burglarized, witness saw a man with a bundle on his back crossing the field, going from the direction of Apelt’s house towards defendant’s house. That man passed witness’s house at a distance of about two hundred yards. Witness was satisfied then, and is satisfied now, that that man was the defendant.</p> <p>Cross-examined, the witness testified that he had known the defendant for several years. He had never considered him very intelligent, but thought him capable of distinguishing the right from the wrong in regard to the appropriation of other people’s property. Defendant was a married man, and attended to his business just as his neighbors did. Witness had frequently exchanged work with him on terms of equality. The State rested.</p> <p>Charles Watenbaugh testified, for the defense, that he had lived in Mason county some twenty-two years, over twenty of which, or from his early childhood, he had known the defendant. The defendant from his early boyhood was simple-minded, and had never, in the opinion of the witness, been of sound mind. He has always been prone to say and do foolish things. The witness did not regard him sufficiently sound of mind to distinguish right from wrong. He has always been known, during witness’s acquaintance with him, as “ Crazy Jake.”</p> <p>Wilson Hey, district and county clerk of Mason county, was the next witness for the defense. He testified that during his acquaintance with the defendant, extending over, several years, defendant had been known as “ Crazy Jake Schuessler,” Witness had always regarded him as simple, wreak-minded and foolish, but could express no opinion as to his ability of distinguishing the right and wrong of theft.</p> <p>1. P. Badger testified, for the defense, that he had the defendant in his employ some two or three years prior to this trial, and paid him the ordinary wages for such work as he did. He was a weak-minded, foolish person then, and the witness did not think him capable of distinguishing right from wrong.</p> <p>Doctor D. J. Grandstaff testified, for the defense, that he was a practicing physician. He had known the defendant for the last seven or eight years, during which time he had frequently met and conversed with him. Witness regarded him as weak-minded. He had, in the opinion of the witness, but little mind. He had some mind, and perhaps enough'to know the moral and legal wrong of theft, but witness could not say positively that he had or had not. He had never treated the defendant for either mental or physical disorder. As a general rule, kleptomaniacs will display no disposition to retain and secrete stolen articles, but will usually, when charged with the theft, either return or pay for the articles, if able.</p> <p>Doctor C. K. Gatliff testified that he had known the defendant as a weak-minded person for fifteen years at least. Witness could not say that he was unable to distinguish right from wrong as to to theft. Witness had never examined him with reference to his mental organization, but he certainly was not well balanced mentally.</p> <p>Several witnesses testified, for the State, in rebuttal, that the défendant was possessed of enough mind to know the right or wrong of theft. They had frequently heard of defendant stealing small things, but never heard of his returning or paying for anything he had stolen.</p> <p>The motion for new trial was based, in part, upon the affidavits of several witnesses, setting forth facts upon which they predicated their belief that the mind of the defendant was so impaired that he was totally unable to distinguish between right and wrong as to the crime of theft. The opinion of the court states the purport of the affidavit of the counsel for the defense in support of the motion for new trial.</p>

<p>1. Constitutional Law — Grand Jury—Case Approved.—A constitutional grand jury of this State, such as alone is competent to return a valid indictment, is composed of the exact number of twelve persons. See the opinion in extenso for the subject discussed and elaborated, and note the approval of the decision in the case of Lott v. The State, 18 Texas Ct. App., 627.</p> <p>2. Same — Practice.— Note the approval of the rule laid down in Lott’s case, supra, to the effect that, notwithstanding the failure of the Code to authorize a motion tp quash an indictment upon the ground of such illegal organization of the grand jury which presented it, objection either by motion to quash or in arrest of judgment is available as against the indictment.</p> <p>3. Same.— Challenge to the Array of the grand jury upon the ground that it'was composed of another than the constitutional number of twelve persons is not authorized by article 377 of the Code of Procedure; when independently construed, nor when construed in connection with articles 378, 380 and 381; ’ Indeed, in view of the constitutional provision restricting the member- - ship-of the grand jury to twelve persons, it is beyond the power of the Legislature to enact a law requiring such a challenge, inasmuch as one accused of a felony can only be held to answer to an “ indictment ” (Bill of Bights, section 10), and an indictment can only be presented by á constitutional grand jury. See the opinion in extenso on the question.</p> <p>4. Same.— It is insisted in behalf of the State that the objection to the indictment, being raised for the first time in this court, comes too late. Held, that the position is not well taken. No objection can come too late which discloses that a person has been put to answer for crime in a manner violative of his legal and constitutional rights. A valid indictment is an indispensable prerequisite to a legal prosecution for a felony, and if it be affirmatively disclosed by the record that the pretended indictment was returned by an unauthorized body of men, assuming to act as a grand jury, all the acts of such a body must be held void, and no laches of the accused will cure the irregularity. The Legislature, therefore, even had it been so disposed, had no power to invest the courts of this State with jurisdiction to try for felony in any manner other than that prescribed by the Constitution. See the opinion in extenso on the question.</p> <p>5. Same.— The effect of article 357 of the Code of Criminal Procedure, which provides that “ the jury commissioners shall select from the citizens of the different parts of the county sixteen persons to be summoned as grand jurors for the next term of the district court,” especially when construed in connection with article 376 of the same Code, cannot beheld to authorize the organization of a grand jury composed of any number of persons not less than twelve nor more than sixteen. Such a construction is not only unwarranted by the language of the act, but, if it were inevitable, it would be without binding force, in view of the twenty-ninth section of the Bill of Rights, which declares, in effect, that the Constitution is the paramount law of this State, and that its provisions shall prevail over all conflicting legislative enactments.</p> <p>6. Same.— To obviate the objection that the grand jury which presented the indictment was composed of thirteen persons, the State insists that one of the thirteen persons can be treated as an intruder, and that it was the duty of the accused, at the proper time, to except to the indictment under the second subdivision of article 523 of the Code of Criminal Procedure, upon the ground that some person not authorized by law was present when the grand jury was deliberating, or was votitig upon the accusation against him. Held, that the position is without merit, because the convocation of a valid panel of a grand jury is an indispensable precedent to any proceeding on the part of the accused, and a valid panel is composed of twelve and not thirteen members. Note the qucere of the court as to which of the thirteen persons composing an illegal panel could be objected to as an intruder, and note also the suggestion that it would be beyond the power of the Legislature to authorize the trial court to legalize a grand jury which, under the Constitution, is illegal, by permitting the defendant to designate which of the members of the panel in excess of the constitutional number should be treated as intruders.</p>

<p>Appeal from the District Court of Shelby. Tried below before the Hon. J. G. Hazlewood.</p> <p>The conviction was for a simple assault, and was had upon an indictment which charged an aggravated assault, the aggravation alleged being that the assault was committed in a court of justice then in session. A fine of §10 was the punishment imposed.</p> <p>The opinion sufficiently states the purport of the evidence.</p>

<p>Appeal from the District Court of Grimes. Tried below before the Hon. Benton Randolph.</p> <p>The appellant in this case, under an indictment which charged him with the murder of Henry Welden, in Grimes county, Texas, on the 12th day of April, 1884, was convicted of manslaughter, and was awarded as punishment a term of three years in the penitentiary.</p> <p>Doctor, John Buchanan was the first witness sworn by the State. He testified that on the morning of April 13, 1884, he examined the wound upon the body of the deceased. He was shot through the right breast and in the liver. The wound was unquestionably mortal.</p> <p>Cross-examined, the witness stated that the skin of the deceased was powder-burned, indicating that, when the fatal shot was fired, the muzzle of the gun was held very close to the body. There was but one wound, which was circular in shape and ragged at the edges. The ball ranged a little downward. From the position of the wound it was evident that the deceased and his slayer were facing each other when the fatal shot was fired.</p> <p>Coleman Howlin testified, for the State, that Henry Welden was shot on Saturday, April 12, 1884, and died on the next day at J. C. McIntyre’s place, in Grimes county, Texas. Witness knew the defendant, from whose house he lived some seven hundred or eight hundred yards distant. Witness, who had been to mill on that Saturday, reached home about sundown. He asked his children on his arrival where their mother was. They told him that she was at Welden’s. Witness then saw her and defendant at the gate talking. Witness went up to where they were, and asked Clark, defendant, if he had said that witness threw his mule in the ditch and killed it. Defendant replied: “Ho, I did not say it, but I am going to kill you.” Those present at the time were Bose Moore, the deceased and his wife, defendant and his wife, and witness and his wife. Defendant then rolled up his sleeves to fight witness. He next caught up a stone, but deceased took it from him. He then got a piece of a rail, which deceased took from him after he started towards witness with it. The wives of the witness and the defendant then became involved in a quarrel. Witness’s wife out-talked defendant’s wife, when defendant’s wife called witness’s wife a bitch. The defendant said: “ My wife is no more of a bitch than yours is,” and ran to his gun. Deceased got the gun. Defendant cried to him: “Turn it loose; I am going to kill the yellow son-of-a-b—h,”—or perhaps “ sons-of-b—hs.” Deceased had hold of the muzzle of the gun, which the defendant held at the stock end. The gun was discharged and killed deceased. The deceased’s sole part in the affair was to prevent a quarrel. He had no quarrel with the defendant. Witness had no weapon of any kind, nor did he use or attempt to use a weapon. Witness did not assault or strike, or attempt to assault or strike, the defendant. Witness did nothing but attempt to prevent the defendant from injuring him. Defendant was neither scratched nor bruised during the fracas. Witness went off for a doctor to attend the deceased.</p> <p>Cross-examined, th% witness said that he and the defendant were friendly before the difficulty. The difficulty occurred between sundown and dark. When defendant said that he was going to kill witness, he laid his gun down on some grass. It was some fifteen feet from where the fatal shot was afterwards fired to the point where the defendant first laid his gun down. Witness supposed that the gun was moved by the deceased when the quarreling first began. With the report of the gun, defendant said to witness: 6‘ Turn me loose; Welden is shot.” The gun dropped and witness picked it up, and presently, by his request, gave it to the defendant. The rock was picked up by defendant before the fight between the women, and the rail afterwards. The women fought for some time. Witness’s wife got defendant’s wife down, and witness and defendant parted them.</p> <p>Hester Welden testified, for the State, that the deceased was her husband. Harriet Nowlin, the wife of the witness Coleman Nowlin, said that she wanted to see Aus. Clark. When she met him she asked him if he had accused her husband, Coleman, of killing his mule. Defendant replied: “No; but I intend to kill him.” Defendant caught up, apparently for use, first a rock, then a rail, and then his gun. Deceased caught the gun, when defendant said to him: “ Turn it loose; I want to kill thed—d yellow son-of-a-b—h.” Coleman Nowlin was of a lighter color than deceased. Coleman Nowlin’s wife and defendant’s wife went to fighting as soon as they met. Defendant’s wife called Coleman’s wife a “ d—d yellow-legged b—h.” Defendant then said: “My wife is no more of a bitch than yours.” Coleman replied: “Don’t you call my wife ab—h.”- No one but defendant, deceased and Coleman Nowlin had hold of the gun. Coleman did nothing but dodge behind the deceased during the scuffle.</p> <p>Cross-examined, the witness said that the parties met at the gate. The women fought after the defendant picked up the rock;and rail. No one had hold of the gun when it was discharged except the defendant. As soon as the gun fired defendant threw it down and ran off, and his wife picked it up and ran into the house with it. Witness did not hear the defendant say to Coleman.:; “ Turn me loose; the man is shot.”</p> <p>Re-examined, the witness said that defendant’s remark, when deceased caught the gun, was: “Turn the gun loose; I want to kill Coleman.” The gun went off and shot deceased. Deceased told defendant and Coleman to part their wives, and they did so. Defendant did not ask Coleman for the gun after the shooting. Iiis wife took the gun into the house. *</p> <p>Rose Moore testified that she was present and saw the difficulty in which the deceased was killed. The defendant has just returned home from hunting, when he was accosted by Harriet Nowlin with the question; “Did you say that my husband ran your old horse into a ditch?” Defendant replied that he did, picked up a rock and then a rail, and then the wives of the defendant and Coleman Nowlin engaged in a fight. The defendant called Coleman Nowlin’s wife a long-legged yellow bitch, when Coleman ran at him and said: “ You call my wife a bitch 1” Defendant ran too, and got his gun. Deceased caught the gun, when defendant said that he was going to kill the yellow son-of-a-b—h. They struggled over the gun — defendant at the stock and deceased at the muzzle. Coleman had the gun about the center. Deceased was endeavoring to suppress a fight. Coleman Nowlin did not strike the defendant during the fracas. Witness was related to none of the parties.</p> <p>Cross-examined, the witness said that Coleman Nowlin had one hand on the defendant’s shoulder when the gun was discharged. He was saying something to the defendant at the time, but witness could not hear what it was. The discharge set fire to deceased’s clothing and the defendant extinguished it. Witness then told defendant he had better summon some one to do something for deceased, and defendant left at once for Jerry Shelton’s house for help. The State closed.</p> <p>Dannie Clark, the wife of the defendant, testified, in his behalf, that the defendant and the deceased’s little boy went hunting together on the day of the killing. On his return home the defendant went into his yard to shoot a rabbit. Harriet Nowlin called him to the gate, and asked him if he had accused her husband, Coleman, of throwing his horse into a ditch and killing him. The defendant replied simply: “No, I did not.” While they were at the gate Coleman Nowlin came up. Harriet Nowlin then struck the witness, an 1 she and witness engaged in a fight, and were separated by their husbands. Harriet called witness a bitch, and defendant said to Harriet: “My wife is no more of a bitch than you are.” Thereupon Coleman Nowlin struck the defendant; defendant struck back, and several blows were passed. Defendant then caught up his gun. Deceased caught hold of the gun at the other or muzzle end. Coleman Nowlin seized the gun in the center, and worked his way to defendant and caught defendant from behind. The gun was then discharged, shooting the deceased.</p> <p>Cross-examined, the witness said that Nowlin did strike the defendant. The defendant at no time during the difficulty picked up a rock and a rail. He did not say that he would kill Coleman. He did not tell deceased to turn the gun loose and that he wanted to kill the “ yellow son-of-a-b—h.” Coleman had the gun in the middle just before it was discharged. Deceased had nothing whatever to do with the quarrel. Just before defendant caught up his gun Coleman Nowlin thrust his hand in his pocket as if to draw a knife, but witness saw no knife. Defendant, deceased and Nowlin lived on the same farm and were friendly with each other prior to the difficulty. Witness had not discussed this case with the defendant nor any one else.</p> <p>Jerry Shelton testified, for the defense, that on Sunday morning, after the doctor left, the deceased, in witness’s presence, told the preacher that he could not possibly recover. Later on the same day witness asked deceased if defendant shot him on purpose. Deceased replied: “ No, he did it accidentally.” Deceased then turned in his bed, spoke no more, and died within two or three hours.</p> <p>Cross-examined, witness said that he asked the question of the deceased because he saw the near approach of his death, and wanted to know the truth about the matter. Defendant was not related to the witness, but was an orphan boy raised by the witness’s mother.</p> <p>J. L. Dickson testified, for the defense, that about 1 o’clock on the morning of April 13, 1884, the defendant came to his house, waked him up, and told him that he had accidentally shot the deceased in a struggle with Coleman Nowlin, and surrendered himself to the witness, who was then the justice of the peace.</p> <p>Doctor Uriah Haynie testified, for the defense, that he had known the defendant about six years, during which time they had resided in the same neighborhood. He knew his general reputation in the neighborhood during that time to be good as a quiet, peaceable, law-abiding boy. John P. Boan and Sam H. Garvin testified substantially as did Doctor Haynie.</p> <p>In rebuttal, the State introduced the testimony of Fannie Clark as reduced to writing, on the examining- trial. It reads as follows:</p> <p>“ I am the wife of the defendant. The defendant saw a rabbit in the yard and got his gun and went out there to shoot it. Defendant went hunting on that evening with Hester Welden’s little boy. The sun was setting when the defendant and the boy got back. While the defendant "was in the garden, Harriet Nowlin called him. They were standing up there talking, and while they were talking Coleman Nowlin came up. I went up there at that time. Coleman Nowlin said to the defendant that he had been running over him long enough, and that he intended to put a stop to it. Defendant said that he had not bothered him, and asked how he could bother him when he had not been about him. Coleman Nowlin had a rock in his hand. Defendant’s gun was lying on the ground, and he picked it up, and Coleman kept making up to him. Defendant said: “Don’t come up to me,” and at that time Henry Welden, the deceased, came up and took hold of the gun, and then Coleman came up and caught the gun between the deceased and the defendant, and kept working until he got behind the deceased. When the gun fired Coleman Nowlin had it in his hands, for I tried to get it away from him. I did not see my husband roll up his sleeves. The sun wTas down when me and Harriet had the fight, and that was before the shooting. Coleman Nowlin’s wife, after our fight, called mea bitch. The defendant then said: “My wife is no more a bitch than your wife.” Coleman and defendant went to fighting again. My husband only owns two sows and two pigs.”</p> <p>Cross-examined. “Defendant told me he was going out to shoot a rabbit. I did not see the rabbit. I don’t know who shot the gun. Defendant was out in the pasture when Mrs. Nowlin called him. The gun was lying flat on the ground when I went up to "where they were. At the time of the shooting, I wTas in a manner right close to them. Coleman Nowlin was not at the deceased’s back when the gun fired. I did not say that he was at the deceased’s back when the gun fired. Coleman Nowlin was at the defendant’s back when the gun fired, and had hold of the defendant and of the gun. I don’t know which hand Coleman had the gun in. I was not excited, but was perfectly cool.”</p> <p>Ee-examined. “ I don’t know what defendant means. I do know that Coleman Nowlin was at Austin Clark’s back when the gun fired, and was not at Henry Welden’s back. Coleman Nowlin, Henry Welden and my husband were struggling over the gun at the time it fired. I don’t know who shot the gun. Just after the shot Coleman Nowlin had the gun, and I ran up to take it away from him, and he, Coleman Nowlin, told me I should not have it, and at that time my husband was turning Henry Welden over, putting out the fire. It was about eighty or a hundred yards from where my husband had the gun to kill the rabbit to where the killing took place, and near the trail from Hester Welden’s house to our house, and it is all in the same pasture.”</p> <p>The motion for new trial raises the questions discussed in the opinion.</p>

Tried below before E. W. Terhune, Esq., Special Judge. Tlie conviction in this case was for an assault with intent to murder A. M. McRae, in Hunt county, Texas, on the 1st day of June, 1885. A term of two years in the penitentiary was the penalty assessed by the jury. H. J. Ross was the first witness for the State.

<p>1. Malicious Mischief — Charge of the Court.— The appellant was convicted of pulling down the fence of one A., without his consent. The proof showed that appellant was a tenant of A.’s on land separated by a cross fence, which A. owned, from other land occupied by C., and that, to recover some of his hogs which had strayed across the fence into the inclosure of C., theap-i pellant, without A.’s consent, pulled and left down a panel of the fence. It was also proved that the crops had all been gathered and that A.’s field contained nothing which could have been injured by stock. Under this state of proof the court refused a special charge to the effect that “the fence of A. would in law be the fence of defendant, and if the fence in question was the fence of said A,, but inclosed defendant’s land, defendant would have the right to let down said fence and call his hogs into the field.” Held, that in refusing the special charge the court erred, because the appellant was a joint owner with A. of the fence during his tenancy, and had the same lights in and to the fence that A. had. The rule that a joint owner of a fence has no right to pull down or injure the same without the consent of the other joint owner, will not authorize a conviction when, in a case like the present, it appears that no injury was nor could have been done, and that the purpose of the accused was a legitimate one.</p>

<p>1. Murder — Indictment.— It is, in this State, a well-established principle of criminal pleading, that an indictment, to be sufficient, must charge affirmatively, and not by way of conclusion, all of the acts and omissions which enter into the composition of the offense sought to be charged. Under this rule, to charge murder, the indictment must not only allege that the accused, with his malice aforethought, murdered the deceased, but that he hilled the deceased. See the opinion in extenso on the question.</p> <p>2. Same — Arrest op Judgment.— The charging part of the indictment in this case reads as follows: “That Ned Strickland, late, etc., on the 10th day of December, 1884, in said county and State of Texas, did then and there, with malice aforethought, murder Allen Forsyth, by shooting him with a gun.” Held, fatally defective in that it does not charge affirmatively that the accused, with his malice aforethought, hilled Allen Forsyth; wherefore the motion in arrest of judgment should have prevailed.</p>

<p>1. Murder — Evidence.— See the opinion in extenso for declarations of the deceased which, upon a murder trial, were properly admitted as part of the res gestee, though not made in the presence of the accused nor at the immediate scene or instant of the homicide.</p> <p>2. Same.— Three witnesses for the State testified that they heard the fatal shot and the outcry of the deceased, and ran immediately to where the deceased was lying, and asked him who shot him, and that, in reply, he named the defendant. The answer was objected to upon the ground that it was embraced within the rule qualifying dying declarations, which were admissible only after the laying of the proper predicate. Held, that the evidence was strictly res gestee, and was therefore properly admitted.</p> <p>3. Practice — Jury Law.— The verdict of a jury is not to be impugned merely because, during its deliberations, the jury were in charge of a deputy sheriff who testified on the trial as a witness for the State.</p> <p>4. Murder — Fact Case. — See the statement of the case for evidence held sufficient to support a capital conviction for murder.</p>

<p>Appeal from the District Court of Ellis. Tried below before the Hon. Anson Rainey.</p> <p>The death penalty was assessed against the appellant by the jury which convicted him of murder in the first degree upon an indictment which charged him with the murder of Fannie Young, in Ellis county, Texas, on the 2d day of April, 1885. The appellant and his victim were both negroes.</p> <p>Mattie Henderson was the first witness for the State. She testified that the deceased, whose proper name was Fannie Henderson, was her mother. Witness’s father, from whom the defendant took the deceased, was still living in Dallas county. Defendant and deceased “ took up ” together two or three years before the homicide, and lived together as man and wife, but were unmarried, until the death of the latter, on the 5t.h day of April, 1885. They lived together at the town of Palmer, in Ellis county, the deceased going under the name of Fannie Young. Just after dark on the night of April 2, 1885, while the witness was engaged in preparing supper, the defendant, having the coal sack in his hands, told witness and deceased that he was going to the depot to get some coal; that he would bring the sack of coal down the track of railroad as far as the point where some box cars were then standing, where the deceased and witness must come and get it, so that he could return to the depot. He told the witness to leave the front door slightly ajar, so that the light from the inside of the house would shine outside. He left with the sack in his hand.. After he had been gone scarcely long enough to have walked as far as the depot and back, a shot was fired into the house, and the deceased, who, at the time was standing at the table partaking of bread and milk, fell to the floor, shot through the head. Witness saw no one, nor did she hear any one about the premises, at, just before, or just after the shot was fired. When her mother fell the witness ran, screaming, to town, and told Mr. Hancock and others what had transpired at home. A great many persons soon gathered at the house, and the deceased, still alive, was removed from the room in which she lay into another, and the white people left in quest of the defendant. About 11 o’clock on that night the witness found the coal sack spoken of, filled with coal, in front of the house and near the fence, where it remained until the next day. During the night some time the defendant came to the window of the house and called to some one to bring him his coat, pencil and pocket-book. He spoke to the witness, and asked her: “Mat., do you think I killed your mother?” Witness replied: “ I do not know, Pa, but it looks very like it, or you would come into the house.” He replied, “ Well, if you have got that in your head, good bye.”</p> <p>Jim Wilson started to take the coat and pencil out of the house to defendant, when defendant started to run. Wilson called to him: “Hold on; I am not after you.” Defendant then stopped, got his coat and pencil and went off. About two weeks before the shooting the defendant came home drunk, got mad with the deceased, burned up some of her furniture, and told her that he would kill her if it took him twenty years. Witness had often heard the defendant threaten to kill the deceased. Hot many days before the shooting the witness heard him say to the deceased: “Fan., suppose I should kill you, what do you want done with Mat. ? ” Deceased replied that she would want Mat. (witness) to live with Mrs. Dunlap. Witness attended the examining trial, and there saw a pair of socks in the possession of Mr. H. 0. Evarts which, she thought, belonged to the defendant. They were white socks with red tops, and were such as the witness had washed for him the day before the shooting. Those socks were new, and the witness washed them for the first time on the day stated. The defendant, on the day of the shooting and for some time previous, wore a pair of old boots, one of them being run down at the heel and the other having no heel at all. Ho one lived at the house in which the shooting occurred except the defendant, the deceased and the witness. Defendant was kind and considerate when sober, but very quarrelsome when drunk. He was sober on the day of the shooting. He brought a sack of flour home on that day — the first thing he had contributed to the household since he burned the furniture up some six weeks before. He spaded up the garden on the same evening. Ho one save defendant, deceased and witness had been at the house on that night prior to the shooting, nor had there been any disturbance of any character. Deceased and defendant were about the same age, and the deceased was thirty-two years old at her death.</p> <p>A. A. Vestal testified, for the State, that he lived at Palmer in Ellis county, and had known the defendant and the deceased since they located in that town, about two years before the shooting. They lived together as man and wife, and the witness knew the deceased only as Fannie Young. Witness heard of the shooting of Fannie Young on the night it happened, but did not go to the house until the next day. Witness went into the kitchen, which was the south room, and the room in which it was said the woman was shot, and there saw blood and brains on the floor. It was evident to witness that the fatal shot was fired through the south window. The window was such as is known as a “slide window,” and the slide was open an inch or two. Witness went out to examine the outside of the window and vicinity. He found discoloration on each side of the opening of the window, left by the slide, and which he smelled and found to be powder-burn. He found the track of a man in his sock feet, about three feet from the window, the toe of the track pointing towards the window. Witness back-trailed this sock track from the window around and west of the house to the fence in front of the house, directly up to a sack of coal which lay on the ground near the fence. Witness then went back to the window and trailed the tracks the other way. From the window they went a short distance south to the corner of a gin lot, which they crossed, and passed thence over a ravine through some plowed ground towards H. 0. Evarts’s house. Witness trailed the tracks to Evarts’s hog pen, which was about one hundred steps distant from his house. The tracks xvere sock tracks all the way, the threads in the sock being plainly imprinted in the mud. Three or four days after this, the witness saw the defendant crossing a field at some distance from him. Witness went and examined one of the tracks made by the defendant as he crossed the field, and then went to the gin house lot and compared the measure to one of the tracks he trailed through it on the day after the murder. He was not absolutely positive that the track he measured in the gin lot was one of the tracks be found on the trail he followed on the morning after the killing, but thought it to be. That track, however, and the track made by defendant in the field corresponded in measurement. Witness had seen the feet and the foot-prints of the defendant, and was of opinion that the sock tracks he followed compared in size, shape and general appearance with the defendant’s foot and track. Answering a question propounded by the defense, witness said that he thought the defendant killed the deceased.</p> <p>y. O. Evarts was the next witness for the State. He testified that he lived in Palmer, and was the constable of the Palmer precinct. He had known the defendant and the deceased as man and wife for about two years. He knew the deceased only as Fannie Young, the name by which she was known in Palmer. Defendant and the deceased lived in a house about three hundred yards northwest from witness’s house. The witness was at home on the night and at the time that Fannie Young was shot, but heard no report of a pistol or other weapon. A short time after dark on that night the defendant came to witness’s house and told witness that a crowd of armed men were in and about his house, creating a disturbance, and requested witness to go over there and disperse them. Witness, thinking the defendant on a spree, told him to go home, and to send him word if the men were still there and disturbing him. Defendant left witness’s house, going towards the railroad, which was a direction opposite from his home. Witness remarked to his wife: “ That negro is not going home.” About fifteen minutes later two boys came to witness’s house and told witness that Fannie Young had been shot. Witness went immediately to the house, where he found a crowd already gathered. The deceased, shot through the head, but still living, lay on the floor in the south room or kitchen. Her brains were then oozing out, running on the floor. She was taken up and removed into another room, where she died three or four days afterwards. Search was unsuccessfully made for the defendant that night. Witness went back to the house next morning and examined the south window of the kitchen. The slide was pressed back far enough to make an opening about two inches in width. Powder-burns stained each side of this opening. The powder-burns were fresh.</p> <p>Witness, with A. A. Yestal, trailed a track made bjr a man in his sock feet, from the window in the general direction stated by Yestal in his testimony. This track stopped on a small moss bank within ten feet from witness’s door. The party who made the track lost a sock just after passing the witness’s hog pen, from which point on a short distance the track was of a man with a sock on one foot, and the other foot bare. The man lost his second sock a short distance from where he lost his first, and thence on the track was of a barefoot man. Witness looked for and found both socks, and produced them on the examining trial. They were wet and muddy when the witness got them. Witness tried them on the defendant’s foot at the examining trial, and found them to fit. Witness crossed from the grass plot or moss bank to the trail on which the defendant left his, witness’s, house, the night before, going towards the railroad, and found the barefoot tracks of a man which corresponded in shape, size and appearance with the barefoot track on the other side of the bank, which led to that point from the point where the last sock was lost. Witness followed that track towards the railroad to a point where the ground showed some one tó have sat down. From that point on to the railroad the tracks were of a boot or shoe, the right of which was run down at the heel, and the left with no heel at all. On the day of but before the shooting occurred, the witness saw the defendant in the town of Palmer, wearing an old pair of boots, the left of which had no heel, and the right heel being run down. The old boots worn by the defendant on that day compared in shape, size, dilapidation and appearance with the tracks which witness found between his house and the railroad. The railroad was about one hundred yards from witness’s house. Mo other than the tracks described were found on the trail between the witness’s house and the railroad. Mo others than those described were found between the houses of the witness and the defendant, and those commenced about ten feet from where the defendant stood as he talked to witness on the night before. Defendant was unsuccessfully searched for during some five or six days before his arrest.</p> <p>Jim Wilson, the next witness for the State, testified that he lived in the town of Palmer, Ellis county, three or four hundred yards north of the house in which the defendant and the deceased lived. Witness was at home when the shooting of Fannie Young occurred. Witness went to defendant’s house soon after the shooting, where he remained a short time and returned home. Some time after he got home, or about 9 o’clock that night, the defendant came to his house, stopped outside at the chimney corner, and called the witness to him. Witness asked him what he was doing out there at that time of night. He replied that, en route home from the depot, he saw a crowd of armed men at his house and did not know what it meant, and wanted to know of the witness if anything was the matter. Witness replied that some one had shot his wife Fannie. He then asked if they accused any particular person of doing it. Witness replied that if he, defendant, did not go home they would accuse him of it. The defendant insisted on the witness going out of his house to join him. Witness threw his door open and started out with a shot-gun, when the defendant ran off. Witness then took his wife to Fannie Young’s house to sit up with her through the night. During the night some time defendant came to the window of the front room and asked for his coat, pencil and pocket-book. He called to and asked Mat. Henderson if she, Mat., thought that he had killed the deceased ifat. replied that she did not know, but that, since he would n< ,o into the house, it looked very much like it. He replied that since she had got that idea into her head he would say good-bye. Witness started towards him with his coat, when he started to run. Witness called to him that he was not going to arrest him, when the defendant came up, got his things, and left.</p> <p>Em. Wilson, the wife of the last witness, testified for the State, corroborating her husband as to what transpired at Fannie’s house after she and her husband went there to sit up.</p> <p>Bob Jones testified, for the State, that he went to Palmer two or three days after the deceased was shot, and remained over one night. In going across a field he met the defendant, who then had a pistol in his hand. At a distance of about eight feet he presented it at the witness and ordered him to stop. He told witness that it would not be well for anybody to run up on him and attempt to arrest him. This occurred on a moonless night, but witness saw the pistol distinctly.</p> <p>D. Harper, testifying for the State, said that he was one of the parties who searched for, and, after five or six days, arrested the defendant. Witness found him in an old cotton house, covered up, except his head, with cotton seed. He was suffering from a very severe wound which was inflicted on the night before by some one of a party which undertook to arrest him.</p> <p>W. L. Hancock testified, for the State, that he lived near the house occupied by the defendant. He was at home when the killing occurred. Mattie Henderson came to witness’s house, screaming, on that night, and told witness that some one had shot her mother. Witness dispatched his boy to notify Constable Evarts, but, being a cripple, did not go to the house himself. About three.weeks before the shooting, the defendant got drunk, went home and got mad with the deceased, created a disturbance and burned up some furniture. He was prosecuted and fined, and worked out his fine on the street. The witness afterwards, in talking to him about his conduct, told him that if he did not mend his ways he would get his neck broken or break into the penitentiary. He replied that he did not care a d—n; that if the deceased had not reported him he would not have been punished; that the witness need not be surprised to hear at any time that h—11 had been raised at his house. The defendant was not drunk when that conversation took place, but was drunk the night before. On another occasion the witness heard violent quarreling at defendant’s house. Some one, witness did not, know who, hallooed to witness to come down there or a negro would be killed. The defendant and the deceased at that time were standing in their yard.</p> <p>Deputy Sheriff Will McCue testified, for the State, that his searching party ran upon the defendant in the brush near Palmer on the night before his arrest in the cotton house, and witness called to defendant to halt. Defendant threw his hand behind him and ran, and some one of the party fired on him.</p> <p>The defense offering no testimony, the case closed.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. J. E. Dillard, County Judge. The appellant was convicted of a simple assault, and was fined in the sum of $5, under an information which charged him with an aggravated assault and battery upon C. Y. Sanders, in Kaufman county, Texas, on the 20th day of April, 1885. The opinion states succinctly the testimony of the prosecutor Sanders, which comprises all of the important evidence for the State.

Tried below before the Hon. A. S. Walker. Held: and the defendant, who was on board, was arrested. His gun was found in the engine cab. Witness delivered the gun to the county attorney, and, as he did not examine it critically, would not recognize it now. He saw J. N. Stewart draw the charges from the gun after the arrest of the defendant.

Habeas Corpus on appeal from Hunt County. Tried in chambers before the Hon. J. A. B. Putman, Judge of the Eighth Judicial District. The applicant was held under an indictment which charged him with the murder of Anna Smith, in Hunt county, Texas, on the 2d day of July, 1885. He was awarded a writ of habeas corpus, but, upon the same being heard in chambers, he was denied the privilege of bail and remanded to the custody of the sheriff.

Tried below before the Hon. J. M. Duncan, County Judge. The conviction in this case was for the sale of intoxicating liquors on Sunday, and the penalty imposed was a fine of $20. The opinions disclose the case.

Tried below before the Hon. F. J. McCord. The indictment charged the appellant, Tom Kennedy and Scott Hendricks jointly, with the murder of Edmond Hill, in Van Zandt county, Texas, on the 17th day of August, 1883. The appellant was tried alone, a severance having previously been awarded, and was convicted of murder of the first degree, his punishment being assessed at a life term in the penitentiary.

Tried below before the Hon. F. J. McCord. The appellant in this case, a severance from his co-defendants, Iven Thompson and Scott Hendricks, having been awarded, was tried upon an indictment which charged him, jointly with his co-defendants, with the murder of Edmond Hill, in Van Zandt county, Texas, on the lYth day of August, 1883. He was convicted of murder in the first degree, and his punishment was assessed at a life term in the penitentiary.

Tried below before the Hon. George McCormick. The conviction in this case was for the burglary of the storehouse of Samuel Brown and J. W. Peebles, in Gonzales county, Texas, on the 10th day of December, 1883. A term of seven years in the penitentiary was the penalty assessed. S. H. Brown was the first witness for the State.

Tried below before the Hon. T. M. Paschal. The indictment in this case charged the appellant with the murder of Eobert Fly, in Medina county, Texas, on the 11th day of September, 1883. His trial resulted in his conviction of murder of the first degree, his punishment being assessed at confinement in the penitentiary for life. -Wilkey was the first witness for the State. He testified that he lived between three and four miles from Hondo City, in Medina county, Texas.