Volume 2 — Texas Court of Appeals Reports

Tried below before the Hon. F. P. Wood. The indictment was for the theft of two oxen. The jury found a verdict of guilty, and assessed the punishment at five years in the penitentiary.

<p>Appeal from the Criminal District Court of Dallas. Tried below before the Hon. S. Hare.</p> <p>The case is sufficiently stated in the opinion.</p>

Tried below before the Hon. B. E. Green, County Judge. The penalty imposed by the act of 1873 for violation of any of its provisions is a fine of not less than $10 nor more than $100.

<p>Appeal from the Criminal Court of Paris, county of Lamar. Tried below before the Hon. J. Q. Chenowith.</p>

<p>Appeal from the Criminal Court of Paris, county of Lamar. Tried below before the Hon. J. Q. Chenowith.</p> <p>So far as material, the facts are disclosed by the opinion of the court.</p>

Tried below before the Hon. R. R. Gaines. The indictment was for rape upon a girl of but little over eleven years of age. The opinion discloses such facts as are material to the rulings.

<p>Aggravated Assault by an Officer.—A policeman was conducting a prisoner to the calaboose, when the latter stopped and refused to go further, whereupon the policeman struck him over the head with a six-shooter-pistol. There, was no evidence that the prisoner was assaulting the policeman, and it was proved that other persons were within call, but that their aid was not sought by the policeman. Held, that under the circumstances the policeman was not justified in striking the blow, and his conviction for an aggravated assault is affirmed.</p>

<p>Appeal from the Criminal District Court of McKinney, in the county of Collin. Tried below before Richard Maltbie, Esq., special judge.</p> <p>The case is stated in the opinion.</p>

<p>1. Deadly Weapons.—The act of April 12, 1871, “to regulate the keeping and bearing of deadly weapons,” was not enacted to prohibit the keeping and bearing of the weapons therein mentioned, but merely to regulate the manner in which they are to be carried and used. The carrying of a pistol is not of itself a violation of the act, but becomes such when carried in a. manner and under circumstances prohibited thereby.</p> <p>2. Same.—The said act prohibits a horse-back traveler from carrying a pistol in his hands, or belted around him, unless he is exempted from the penalties of the act by some other exception than that relating to persons traveling.</p>

<p>1. Evidence.—A witness testified before an examining magistrate, but died before the trial of the accused in the district court, in which his testimony before the magistrate was offered by the prosecution, but was objected to because the witness, when he testified before the magistrate, had previously been rendered incompetent by his conviction for a felony, and his sentence to the penitentiary for a term still unexpired, as shown by exemplified copies of the judgment and sentence. The court below overruled the objection on the ground that the counsel for the state had not, before announcing for trial, been notified of the objection, and thus enabled, to show, if he could, that the witness’ competency had been restored by a pardon. Held, that the ruling was erroneous. The counsel for the state was not entitled to such notification; nor could a pardon be presumed or inferred from the fact that the witness, when he testified before the magistrate, was at large, and not serving out his sentence in the penitentiary.</p> <p>2. Same.—If the witness had been living and present, and his competency impugned as above indicated, the court below could have interrogated him for the purpose of proving that his competency had been restored by a pardon, if such was the fact. Pasc. Dig., Art. 3110.</p>

Tried below before the Hon. R. R. Gaines. The appellant and Albert Chiles, her husband, resided in the town of Sherman at the time of the homicide, having been married some twelve years. William Doss, the co-defendant of the appellant, lived with them ; and Albert Chiles, a short time previous to his death, spoke to a witness about the illicit connection existing between Doss and the appellant.

<p>1. Recognizance.—As a general rule, a recognizance for an appeal should, in designating or setting out the offense charged, follow the exact language used in the indictment. See this case for a recognizance held bad because it uses the disjunctive or in place of the conjunctive and, used in the indictment.</p> <p>2. Indictment — Recognizance. — Though in general an indictment, in charging an offense, may follow the words of the statute defining it, yet an exception to this rule exists when the statute makes it criminal to do this or that, mentioning several things disjunctively ; in which case the indictment, if it embrace all the prohibited acts, must use the conjunction and wherever the disjunctive or is used in the statute, else it will be bad for uncertainty. And in such a case the recognizance for an appeal must follow the indictment, not the statute. If, however, the disjunctive or is used in the statute merely to introduce an explanatory or equivalent clause, the indictment and recognizance may use it in the same sense.</p> <p>3. Recognizance.—Officers and clerks, in taking and recording recognizances on appeals, should inspect and follow the form prescribed in the act of April 27, 1871. 2 Pasc. Dig., Art. 6599.</p>

Tried below before the Hon. George H. Noonan. Held: or that there was any term of that court in session at the time the indictment was presented, or that the district court of Bexar county was held in and for Bexar county, or that the property was taken with the intent then and there to deprive the owner of its value, or that any legal offense had been committed.

Tried below before the Hon. George H. Noonan. The trial was had at the March term, 1875, and the appellant was found guilty by the jury, who assessed his fine at $150.

<p>Aggravated Assault—Indictment.—It is not sufficient to charge, as in the present case, that the accused did “ unlawfully and willfully make an aggravated assault and battery upon the person of one A. T., with intent to injure said A. T., contrary,” etc. The indictment should allege some of the particular acts or circumstances which are necessary, under the Penal Code, to constitute the offense. This rule, however, is not applicable to indictments for simple assaults and batteries, or to assaults with intent to murder.</p>

<p>1. Unlawful Herding of Stock.—The act of 1873, “to prevent the herding of stock on certain lands,” declares it unlawful, under certain circumstances, to herd any “ drove of horses or cattle,” etc. Held, that an information is not defective because it describes the stock as “fifty head of cattle,” instead of calling them a drove of cattle, etc.; nor because it fails to allege who owns the land—it being sufficient to charge that the accused is not the owner.</p> <p>2. Same.—The said act does not require that the “ resident,” whose protection is one of its objects, must be the owner of his residence, or that the information shall allege him to be such owner.</p> <p>3. Bill of Exceptions.—A recital in a judgment entry that the “defendant excepts” to a ruling of the court below is not tantamount to a bill of exceptions.</p>

<p>Appeal from the County Court of Wise. Tried below before the Hon. J. W. Patterson, County Judge.</p> <p>The opinion states the case.</p>

Error from the District Court of Lee. Tried below before the Hon. I. B. McFarland. The judgment final was rendered at the July term, 1875, of the court below. The case was brought up by writ off error.

<p>Appeal from the District Court of Bexar. Tried below before the Hon. George H. Noonan.</p>

Tried below before the Hon. Thomas E. Hogg, County Judge The indictment charged that the assault was committed “ with a certain stick, of the length of three feet, and of the thickness of one inch, which said stick was then and there a deadly weapon.”

Tried below before the Hon. E. P. Turner. The indictment was found in Travis county, where the parties lived, and where one trial was had, which resulted in a conviction; but, on appeal to the supreme court, the conviction was set aside (43 Texas, 414), and the accused then obtained a change of venue to Williamson county. The accused and Brechiani, the assaulted party, each kept bar-rooms in that section of the city of Austin known as Mexico.

Tried below before the Hon. B. L. Richey, County Judge. The nature and general features of this case are sufficiently disclosed by the opinion of the court; but, as the special pleas appear to have been drafted with more than ordinary care, it may serve a useful purpose to insert the material portions of them.

<p>Possession of Stolen Property.—It was error to charge the jury that a person found in possession of property recently stolen is held accountable for the theft unless he explains his possession of the property. The true rule is that such possession is merely a fact or circumstance for the consideration of the jury, in connection with the other evidence.</p>

<p>Appeal from, the County Court of Lamar. Tried below before the Hon. S. C. Bryson, County Judge.</p> <p>The case is fully and clearly stated in the opinion.</p>

Tried below before the Hon. C. C. Cummings, County Judge. The 2d head-note comprises the only description of the house given in the indictment, which was filed in the district court of Tarrant county on August 21, 1876. The transcript shows the county clerk’s file-mark on the indictment as of September 1, 1876, but contains no order of transfer by the district judge, or certified copies by the district, clerk, directed by the act of August 12, 1876.

Tried below before the Hon. R. R. Gaines. The indictment charged the appellant with an assault upon L. D. Hinchman with intent to murder, by shooting him with a pistol.

<p>Appeal from the Criminal Court of the city of Bonham. Tried below before the Hon. J. Q. Chenowith.</p> <p>The jury assessed a fine of $100 against the appellant.</p>

Tried below before the Hon. D. D. Claiborne. The indictment charged the appellant with the theft of a. horse belonging to one Martin. He applied for a continuance, alleging the absence of two witnesses by whom he-expected to prove that he bought the horse from one Martinez, and that one Santos had authority to sell the horse ,- that he had procured attachments for the witnesses and placed them in the hands of the sheriff, but they had not been returned.

Tried below before the Hon. George H. Noonan. In the motion to quash the special venire facias the causes assigned, were: 1st. That the writ was not obtained on motion of the prosecuting attorney, nor issued under order of court. 2d. That the jurors under the writ were not summoned in accordance with law. 3d. That the court did not caution the sheriff to summon qualified persons, informing him what the qualifications are. 4th.

Tried below before the Hon. George H. Noonan. The opinion sets out the indictment, and states all facts;, pertinent to the rulings. After the delivery of the opinion the counsel for the appellant moved for a rehearing; but the motion was overruled.

Tried below before the Hon. E. B. Turner. The indictment charged that, on June 20, 1876, between the hours of eight o’clock, p. m., and eleven o’clock, p. m., the defendant unlawfully, feloniously, and burglariously, by force and fraud, and by lifting the latches of the doors, did break and enter into the dwelling-house occupied by G. W. Banks, in said county, “with the fraudulent and felonious intent on the part of him, the said Simms, then and there to fraudulently take…

Tried below before the Hon. A. J. Booty. The indictment charged Peter Brown, Sam Mason, Henry Helm, and Bob White with a conspiracy to commit burglary.

Tried below before the Hon. J. L. Camp. The evidence in the case is set out in the opinion. Oil cross-examination of the state’s witness, Charles Robinson, counsel for the accused asked him if he did not bear ill-will to the family of the accused, because the children of witness, and Adeline Gay, his former wife, but the present wife of the accused, lived with the latter and his family.

The opinion of this court states the facts involved in the motion in behalf of the state to dismiss the appeal. A motion for a rehearing was made and overruled.

Tried below before the Hon. E. B. Turner. The indictment charged John Lindsay and the appellant with the theft of a certain black gelding, the property of W. L. Lubbock. Brown was the only party on trial.

<p>Appeal from the District Court of Bexar. Tried below before the Hon. George H. Noonan.</p> <p>The case is fully-disclosed in the opinion.-</p>

<p>1. Officers of the Law—Neglect of Duty,—The Code of this state makes; it a penal offense for any “officer of the law” (to wit, any magistrate, peace officer, or clerk of a court) to fail, either willfully or negligently, to perform any duty imposed on him by either the Penal Code or the Code of Criminal Procedure; and for any such failure, not otherwise defined and punished, he is deemed guilty of misdemeanor, and amenable to a fine-of not more than $200.</p> <p>2. Sheriffs are peace officers, and “officers of the law; ” and among the duties imposed upon them by law is that of exercising a supervision and control over the jails of their respective counties.</p> <p>3. Indictment of Sheriff as Jail-keeper.—An indictment is sufficiently specific which, in plain and intelligible words, charges a sheriff with neglect and failure to exercise over the jail of his county such supervision and control as the law requires him to exercise.</p> <p>4. Surplusage.—Redundant allegations in an indictment, not matter of description, are regarded as surplusage.</p> <p>5. Practice in Misdemeanors.—The charge of the court below in a misdemeanor case is not revisable in this court unless it was duly excepted to-when given.</p>

Tried below before the Hon. J. R. Fleming. There being no statement of facts, no outline of this case can be given. Its general character may, to some extent, be inferred from such of the instructions as are copied in the opinion. The verdict was negligent homicide in the first degree, and assessed a fine of $500.

Tried below before the Hon. J. P. Richardson. The indictment was filed December 1, 1874, and laid the time of the offense as January 1st of the same year

Tried below before the Hon. T. M. Paschal. In the opinion a reference is made to the 6th instruction given to the jury, which was as follows: “The declarations made by the defendant at the time he was found in possession of the hog, if freely and voluntarily made, and if not under arrest, when offered by himself in evidence, are admissible as such, and are entitled to such weight as you see proper to give them—those which are against himself' being taken to be true.” The…

Tried below before the Hon. A. J. Booty. In the opinion will be found the letter and postal-card in which the threats were communicated, and all other facts necessary to elucidate the rulings.

Tried below before the Hon. T. M. Paschal. The indictment was filed at the October term, 1876, and charged the appellant with the theft of a bay gelding, of the value of $30, the property of Henry Hamilton, on June 10, 1876. The defendant sued out attachments for K. Merritt, a resident of Bexar county, and for Dan Merritt, a resident of Blanco county. The returns showed that the former was attached, but escaped from the sheriff, and that the other could not be found.

<p>1. Informations in the County Court.—The act of June 16, 1876, to “organize the county courts and define their powers and jurisdiction,” makes the affidavit, not merely a part, but a most important and fundamental part of an information.</p> <p>2. Same.—The information must charge the same offense as that charged in the affidavit on which it is based; and that offense must be one within the jurisdiction of the county court.</p> <p>3. Case in Judgment.—Affidavit charging an assault with intent to murder was made before a justice of the peace, who found probable cause for a charge of aggravated assault against the accused, and bound him over for his appearance before the county court. The county attorney filed iii the county court an information charging the accused with an aggravated assault. Held, that the count)' court had no jurisdiction.. The offense charged in the affidavit, being a felony,' was one of which that court could not take"jurisdiction, and was a different offense than that charged in the information; and the information itself, though it charged an offense within the. jurisdiction of the court, had no affidavit capable of supporting it.</p>

<p>1. Gaming-table or Bank.—If an indictment or information charge that the accused kept a table or bank for gaming, or that he exhibited a table or bank for gaming, it is sufficient, without other description of the table or bank, and without,giving it a name or alleging its name to be unknown.</p> <p>2. Same—Former Conviction.—To an indictment for keeping a bank for gaming on July 1, 1876, the accused pleaded former conviction, and adduced in evidence two judgments of conviction for keeping such a bank, under two previous indictments, found within twelve months prior to the-filing of the indictment on trial, one of which laid the time on the same day alleged in the indictment on trial. But there was no testimony identifying the offense on trial with either of those charged in the former indictments; and there was evidence that, on at least three occasions within twelve months, the accused kept and exhibited such a bank. Held, that under the evidence the plea of former conviction was not sustained, and the charge on trial was sufficiently proved.</p>

Tried below before the Hon. C. C. Cummings, County Judge. The charging clause of the information is set out in the first head-note. One witness testified that for several months the accused had lived at the Waco Tap House, in Fort Worth, Tarrant county. Witness never saw the accused do anything about the house except to take the place of his barkeeper whenever the latter went out; but never saw any one but the accused do that.

<p>Practice in this Court.—Appellant moves this court to incorporate in the record a paper acknowledged by the county attorney to be a substantial copy of a refused charge, which, having been lost, was not contained in the transcript. The attorney general opposes the motion. Motion overruled. The lost charge should be supplied by action taken in court below, conformably to Articles 4969 and 4970, Paschal’s Digest.</p>

Tried below before the Hon. A. J. Booty. For a statement of this case see that of Peter Brown v. The State, ante, p. 115. The law of Texas provides that no person can be convicted of any offense committed before he was of the age of nine years. Pasc. Dig., Art. 1638.

Habeas corpus before the Court of Appeals. The opinion fully discloses the case, and also indicates the arguments forcibly presented by counsel for the relator.

<p>1. Murder—Verdict.—In a trial for murder the verdict was: “We, the jury, find the defendant not guilty as charged, but we do find him guilty of murder in the second degree, and assess his penalty,” etc. It is contended that the first clause of the verdict acquits .the accused of every degree of culpable Homicide, and that the second clause, which purports to find him guilty of murder, in the second degree, is nugatory after such acquittal. But held that the verdict acquits the accused of nothing but murder in the first degree, and finds him guilty in the second degree. It would, however, have been in simpler and better form if it had said “not guilty of murder in the first degree,” instead of “not guilty as charged.”</p> <p>2. Same.—The rulings in Slaughter v. The State, 24 Texas, 410, and in Buster v. The State, 42 Texas, 315, respecting verdicts, explained.</p> <p>3. Evidence.—See the opinion for evidence held sufficient to sustain a conviction for murder in the second degree..</p>

Tried below before the Hon. N. M. Burford. The indictment was filed in February, 1873, and charged the appellant with the murder of Robert Montgomery, October 1, 1872. The cause came to trial at the January term, 1876, of the district court. There was no controversy as to the means by which the deceased came to his death, nor that the appellant was the person who fired the fatal shot.

<p>Appeal from the District Court of Bexar. Tried below before the Hon. George H. Noonan.</p> <p>The case is stated in the opinion of the court.</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. George H. Noonan.</p> <p>The case is fully disclosed in the opinion.</p>

Tried below before the Hon. A. S. Broaddus. The clause in the indictment quoted in the head-note was followed with allegations of a battery, but with none of the circumstances of aggravation enumerated in Article 2150, Paschal’s Digest. The motion to quash was on the ground that no offense was charged in plain and intelligible words, and because no circumstance of aggravation was alleged. The trial below was in January, 1876, and the appeal taken to the supreme court.

Tried below before the Hon. A. J. Booty. The most material facts are either stated or clearly indicated in the opinion of this court. The indictment contained the ordinary allegations of caption and asportation, without any special characteristics of an indictment for receiving stolen property.

<p>1. Assault.—A. threatening gesture, though made under circumstances indicating an immediate intent to commit a battery, does not constitute an assault, unless it be coupled with an ability to inflict injury.</p> <p>2. Hew Trial on the Evidence.—Anew trial was refused below, and there-is testimony supporting the conviction ; but such testimony was contradicted in its material features, and a decided and unmistakable preponderance of evidence disproves the corpus delicti. Held, that a new trial must be allowed.</p> <p>3. Reasonable Doubt.—The evidence was conflicting, and the accused asked a charge presenting the doctrine of reasonable doubt. Held, error to-refuse the charge, in view of such evidence.</p>

<p>1. Interpretation op the Codes.—The courts must be governed by the-rules of interpretation prescribed by the-Code of Criminal Procedure; but, when a state of case arises for which the Code prescribes no rule, it. commands recourse to the rules of the common law.</p> <p>2. Computation op Time.—As a general rule the law takes no cognizance of fractional parts of a day; and another general rule is that, in computing-time from, the doing of an act, or the happening of an event, the day on. ' which the act was done, or the event happened, is not to be counted.</p> <p>3. Same—Special Venire.—The Code of Criminal Procedure, Article 554 (Pasc. Dig., Art. 3022), directs that “ no defendant in a capital case shall be brought to trial until he has had one day’s service of a copy of the-names of persons summoned under a special venire facias," unless he waives the same. Held, that, in computing the “one day’s service,” both the day of the service and the day of the trial must be excluded. At least one entire day must intervene between the day on which the service was-had and the day on which the trial begins.</p> <p>4. Same—Case in Judgment.—Accused, being indicted for murder, was served at one o’clock, p. m., with a copy of the special venire, and at three o’clock, p. m., of the next day was compelled to go to trial; to which he duly excepted. Held, that the accused was deprived of a legal right; that the-error is material, and a reversal mandatory, under Article 672 of the Code of Criminal Procedure. Pasc. Dig., Art. 3137.</p>

<p>1. Murder—Indictment.—The Penal Code and Code of Criminal Procedure have abrogated the common-law requirement that an indictment for murder should aver the part of the body upon which the mortal wound was inflicted.</p> <p>2. Same.—Smith v. The State, 43 Texas, 643, and Nelson v. The State, 1 Texas Ct. of App. 41, explained or overruled. Williams v. The State, 1 Texas Ct. of App. 465, distinguished and explained.</p>

<p>Appeal from the Criminal Court of the city of Calvert. Tried below before the Hon. N. W. Battle.</p> <p>The indictment was filed on December 21, 1875, and the case came to trial in the court below in February, 1876, shortly before the abrogation of the special criminal courts by the Constitution of 1876, which became operative on April 18th of that year.</p> <p>C. H. Bowles, the first witness for the state, knew Sam. Middleton in his life-time, and knew he was dead. Deceased was shot in the leg, and an inch or two above the ankle, about September 15, or 18, 1875. His leg was amputated about twenty days afterwards, and he died about thirty hours, after the operation. Witness could not say that his death was the effect of the wound, but stated that he was not able-to work after he was shot. Dr. McLendon visited him twice, and performed the amputation. Witness sent for several doctors as soon as the injury was inflicted, but they did not come. McLendon’s first call was on the fourth day-after the deceased was shot.</p> <p>Julia Middleton, the widow of the deceased, testified that the accused came to the residence of the deceased and shot at him in his yard. His first shot missed the deceased, and the latter cursed at him. Just at that time witness was-round the house, and did not hear what was said by the-deceased and the accused. The accused used a pistol, and his second shot hit the deceased on the bone of his ankle. The accused then broke and ran. Two men carried the deceased into the house and put him on the bed. He never got out of bed afterwards. Witness waited o.n him after he was shot. Witness was near him when he was shot. He was standing still, with his pipe in his hand, and his side toward the accused, who was about ten yards distant and facing the deceased. The deceased had no pistol, but in the house he had a sun. Before the accused shot he said to the-deceased, “ I dare you to move; I will kill you.” Mr. Bowles sent for a doctor when the deceased was shot the accused did not send for any, so far as witness knows. Dr. Welch came first, and wanted to cut off deceased’s leg with a hand-saw. Three days afterwards Dr. McLendon came and put the leg in a box, and about a week after that he came again and cut it off. The shooting took place on á Monday morning, just after sunrise.</p> <p>Rena Canada, for the state, testified that she was standing in the door of deceased’s house when the accused shot him with a pistol. The accused fired two shots, one of which hit the deceased and he fell to the ground. Witness-did not hear the deceased use any oaths to the accused.</p> <p>Dr. John McLendon, for the state, testified that he was a practicing physician at Calvert in 1875, and was called to see a negro man named Sam Middleton, and found him with a gun-shot wound in his leg. The bone of the leg was fractured half-way from the ankle to the knee. It was a compound fracture.. Witness found the man in good condition and doing well, and was then of opinion that he would recover if properly cared for. Witness put the limb in a box which he made for the purpose. Some days afterwards witness found the man in a very low condition; the wound was suppurating, and witness was obliged to amputate the limb. Witness was informed that the man died soon afterwards. In witness’ opinion the amputation was necessary. It is not possible to say whether a wound of this character be mortal or not. There are many causes why gun-shot wounds prove fatal, such as general bad health or lack of attention. In the present case it is very hard to decide the cause of the death. At witness’ first call, it was his opinion that deceased would recover and have the use of his leg, if proper attention was given him and witness’ directions were observed ; and witness could not say whether he died from the wound or from the. amputation. The wound alone was not, in the opinion of witness, necessarily mortal.</p> <p>Nora Williams, for the defense, stated that she was the wife of the accused, and knew the deceased in his life-time. On a Sunday night, in 1875, witness and her husband were in their bed, and a man named Nelse Echols in another bed in the same room, when, some two or three hours before day, the deceased broke into the house, and went to the fire-place and took some bread out of a skillet, and then seized the skillet by the handle and struck the accused three blows with it on the head, as hard as he could. At the first blow witness sprang out of bed and cried out murder, and did all she could to stop the accused, who, as soon as he struck the last blow, went out of the house. The head of the accused was cut open in two places by the blows, and he was so badly hurt that he could not get out of bed for an hour. When he got up he went out of the house, but where he went to witness could not say.</p> <p>Berry Edwards, for the defense, stated that one Monday morning, in September, 1875, the deceased came to his house and told him that the accused had shot his dog, and he intended to kill the accused if it was the last thing ho did. Deceased then went away. About sunrise, the same morning, the accused came to witness’ house and asked for his pistol, which was then in possession of witness and was loaded. After witness gave the accused his pistol the accused said that some one had come into his house and beat him over the head with an iron skillet; and witness informed accused that the deceased said he intended to kill him, and had told witness that he had been to the accused’s house that night. The accused was cut in the head, and had it tied up in a cloth, and there was blood on his face, neck, and shirt. The accused went away, and soon afterwards witness heard two shots, and went up to the house of the deceased and found him shot in the leg.</p> <p>Nelse Echols, for the defense, confirmed Nora Williams’ account of the attack on the accused, in the latter’s house, the night before the shooting.</p> <p>John Westley, for the defense, testified that he lived on the same plantation and in the same yard with the deceased, in 1875. On the morning of the shooting the accused came to witness’ house and they had a talk. The accused was not angry, but was frightened. He went from witness’ house towards that of the deceased, and witness followed him. The deceased was standing some twenty steps from his door, and the accused went up to about fifteen steps of him, and -said, “ Sam, why did you try to kill me last night? ” The deceased replied, “Yes, Gr—d d—n you, I did try to kill you, and I will kill you, if it is the last thing that I do.” At this time the accused was standing still. When the deceased said he intended to kill accused he was advancing towards the accused, with his right hand in the pocket of his pants. The accused then put his hand behind him and drew out a pistol, and said to the deceased, “ Don’t you come any closer to me.” The deceased continued to advance, and the accused fired his pistol, missing the deceased with his first shot, and hitting him in the leg with the second. The deceased fell to the ground, and the accused walked away. While the fuss was going on, witness was standing about ten steps from the parties. Julia Middleton was behind the house until after the first shot. The deceased had his hand in his pocket all the time. He was a dangerous man, and would carry out any threat he made. All the people on the plantation were afraid of him.</p> <p>On cross-examination this witness testified that when the accused came to his house he said to the witness, “ John, what do you think? Sam tried to kill me last night.” Witness said, “ Did he? ” and he replied, “ Yes, and I am going to ask him what he means by it.” Accused had no pistol in his hand at witness’ house. Witness did not see the deceased have a pipe in his hand or mouth while the fuss was going on, nor sec him have any pistol.</p> <p>Two other witnesses for the defense proved that the deceased was a dangerous man, likely to execute his threats.</p> <p>The jury found the accused guilty of murder in the second degree, and allotted to him twelve years in the penitentiary.</p>

<p>Appeal from the District Court of Colorado. Tried below before the Hon. E. Lewis.</p> <p>The indictment was for assault with intent to murder, and the verdict, guilty, with five years’ service in the penitentiary.</p> <p>The entry in the minutes of the court below, to which reference is made in the opinion and the head-note, is as-follows:</p> <p>“ Sept. 6th, 1876. This day the grand jury appeared in open court, with their foreman, and presented the following indictments, to wit:</p> <p>“The State of Texas v. Levi Anderson. No. 1478. Assault with intent to kill and murder.”</p>

Tried below before the Hon. N. W. Battle. The indictment was for the theft of an ox. The verdict was, guilty, assessing the punishment at two years in the penitentiary.

Tried below before the Hon. E. B. Turner. The indictment was presented in February, 1876, and charged the appellant with threatening to take the life of J. J. Strickland, on the 27th of the preceding December. The trial was had in March, 1876, in Lampasas county, to which the venue had been changed from Burnet, where the indictment was found. It will be observed that a rehearing was allowed, and the case reversed and remanded.

<p>1. An Indictment is not vitiated by bad spelling.</p> <p>2. Indictment.—Being indicted for theft of a “gilding of bay color,” the accused moved to quash the indictment on the ground, substantially, that there is no such thing or property as a gilding. But held, that the meaning is plain, and the accused could not have been misled by such a mistake in the spelling of the word gelding.</p>

<p>Appeal from the County Court of Dallas. Tried below before the Hon. R. H. West.</p>

<p>Appeal from the District Court of Houston. Tried below before the Hon. R. S. Walker.</p>

<p>1. Indictment.—Property stolen was described in the indictment as “a certain mare, to wit, a certain sorrel mare (filly), three years old,” etc. Held, that the indictment charges the theft of a mare.</p> <p>2. Allegata.—Unnecessary descriptive allegations do not vitiate an indictment, but impose upon the state the burden of proving them.</p> <p>3. Separation of Jury.—Separation of a jury, or of one member from the rest, except with the permission of the court and consent of the parties, is prohibited by the Code, and ordinarily constitutes ground for new trial.</p> <p>4. Same—Case Stated.—A juror left his fellows a short distance to attend a call of nature, but spoke with no one, and was in view of the bailiff. Held, not cause for a new trial.</p> <p>5. Charge of the Court.—It was proved that the owner’s brand on the stolen animal had been changed, and the accused, being suspected, was asked why he had changed it, to which he replied that he had bought it from one D., and it was his property. But D. testified that he had never sold it, or any such animal, to the accused. On this proof the court below refused to charge the law relevant to a taking under honest claim of ownership. Held, that the ruling was correct.</p>

Tried below before the Hon. B. T. Estes. The indictment charged George Frazier and the appellant with the murder of Clint Hunter, on June 24, 1874. The deceased was found by the roadside mortally wounded by gun shot. His dying declarations designated Frazier and the appellant as the perpetrators. The parties were all freedmen. Frazier obtained a severance. The jury found the appellant guilty of murder in the second degree, and allowed him seven years of the penitentiary.

<p>1. Final Judgment.—After reciting the .verdict of guilty, which assessed twenty-five years’ confinement in the penitentiary, the judgment entry proceeded to state that “therefore it is considered by the court that the defendant, Frank Choate, is guilty as found by the jury; ” and then concluded by committing the defendant to jail to await sentence. Held, not a final judgment. The entry should have further shown that the defendant was condemned to be punished as determined by the jury, setting out the amount and duration of punishment to which, by reason of the indictment and verdict, he had become liable.</p> <p>2. Same.—Clerks and prosecuting attorneys are specially referred to the cases of Mayfield v. The State, 40 Texas, 289, and Anschincks v. The State, 43 Texas, 587, for directions how to enter up final judgments in criminal cases.</p>

Tried below Before the Hon. X. B. Saunders. The judment entry is condensed in the head-note. After reciting the verdict, its full text was as follows : ‘ ‘ Therefore it is considered by the court that the defendant, James T. Trimble, is guilty as found by the jury.

Tried below before the Hon. G. Cook. The charging part of the indictment was as follows : “That George H. Bourse, late of the county aforesaid, on the twentieth day of the month of February, in the year of our Lord one thousand eight hundred and seventy-seven, in the said county of Galveston, in the state of Texas, with force and arms, then and there four bales of cotton, each of the value of fifty dollars, of the corporeal personal property of Julius Runge, Julius Kauffman,…

Tried below before the Hon. D. M. Prendergast. The material facts will be found in the opinion. With their verdict of guilty, the jury awarded the accused three years’ employment in the penitentiary.

<p>Appeal from the District Court of Kerr. Tried below before the Hon. T. M. Paschal.</p>

Tried, below before the Hon. S. Ford. The deceased, James Monroe, resided in Robertson-county, about three miles from the town of Bremond. On Sunday morning, August 19, 1876, he was found in his house, prostrate and speechless from mortal wounds inflicted on the head. He died during the day, but without being able to communicate anything. . Susan Smith was the first person who discovered his condition. She testified that she lived near him, and milked his cows for him.

Tried below before the Hon. S. Ford. The indictment charged theft of quite a number of United States treasury-notes, from the denomination of $100 to that of $500, besides sundry coins, the property of D. D. Fowler. The verdict was, guilty, with five years in the penitentiary.

Tried below before the Hon. J. Q. Chenowith. The parties and nearly all the witnesses in this case were negroes. The deceased, who was known both as Dan Harmon and Dan Edwards, was the father-in-law of the appellant. In the opinion of this court will be found a complete development of the case so far as concerns the dying declarations, which, of themselves, disclose the version of the conflict relied oil by the prosecution.

Tried below before the Hon. D. M. Prendergast. The indictment was against the appellant and one Carver, which explains why the opinion speaks of the “ defendants.” They severed in their trials. Verdict of guilty was returned in the appellant’s case, with a term of two years in the penitentiary.

Tried below before the Hon. S. R. Frost, County Judge. Appellant was convicted of simple assault, and fined $25. The opinion fully discloses all facts underlying the rulings made. Nevertheless, the counsel for the appellant make such a presentation of the res gestae as reporters do not willingly let die ; ’ ’ and they also moot some very suggestive legal questions touching the statutory law of assaults as affected by the relation of husband and wife.

Tried below before the Hon. T. M. Paschal. The indictment was for an assault with intent to murder one Milton Kennedy. The jury found the appellant guilty, and awarded him two years in the penitentiary. The difficulty occurred at Kerrville, in July, 1875. According to the evidence for the state, Kennedy and Nash appear to have been on familiar terms.

Tried below before the Hon. W. A. Blackburn. Mack Peppers, the deceased, was a youth about seventeen years old, when, on December 27, 1876, he was shot and instantly killed by Lee Primus, the appellant, at a crossing of the Colorado river, in the county of Burnet. The appellant is a negro, and it is implied, rather than stated in the evidence, that he and the other persons present were youths or boys, and all mutual acquaintances.

Appeals from the County Court of Dallas. Tried below before the Hon. R. H. West, County Judge. The opinion disposes of two cases appealed by Cohn and one appealed by Hawes.

Tried below before the Hon. J. R. Fleming. The case is fully disclosed in the opinion of the court. The jury found a verdict of guilty, and a fine of $500 against, each of the defendants.

<p>Appeal from the District Court of Johnson. Tried below before the Hon. D. M. Prendergast.</p> <p>The charge was theft of a mule worth $100.</p>

<p>Appeal from the District Court of Wise. Tried below before the Hon. J. A. Carroll.</p>

Tried below before the Hon. J. B. Rector. The case came to trial in April, 1876. The judge gave in charge to the jury the penalty prescribed in the Penal Code, to wit, a fine not exceeding $100. The penalty provided for in the act of 1873 is “not less than ten nor more than twenty times ” the claim speculated in.

Tried below before the Hon. George H. Noonan. The appellant and Thomas Boyett were jointly indicted, but separately tried, for the murder of Ed Sappington. The facts of the homicide are fully stated in the case of Boyett v. The State, ante, p. 93; and in the opinion herein rendered will be found such matters as are peculiar to the present case.

<p>Appeal from the County Court of Johnson, Tried below before the Hon. H. W. Barclay, County Judge.</p>

<p>1. Informations.—Affidavit alleged that the defendant, on a day designated, “did commit the offense of disturbing religious worship, contrary,” etc. The information. founded thereon charged, with full and appropriate averments, that the defendant, on the day named in the affidavit, unlawfully and willfully disturbed a congregation. assembled for religious worship, etc. The defendant excepted to the affidavit because it alleged no known offense, and to the information because not supported by a sufficient affidavit. Held, that the information, taken in connection with the affidavit, is sufficient to support the conviction.</p> <p>2. Practice in this Court.—When errors are not assigned in a misdemeanor case, this court will consider such only as go to the foundation of the action.</p>

Tried below before the Hon. D. M. Prendergast. This case was before the supreme court, on a former appeal, and is reported in 43 Texas, 503.

<p>1. Charge of the Court.—The general rule that without a statement of facts-the charge to the jury will not be revised is subject to exception when, in the abstract and under any state of evidence, the charge in a felony case-was manifestly erroneous, and may have prejudiced the rights of the accused; and such error may, as in this case, consist in omissions and implication, as well as in affirmative misdirection of the jury.</p> <p>2. Same.—Without a statement of facts this court cannot hold erroneous the-refusal of a requested instruction which may or may not have been applicable to the case as made by the evidence. The presumption is that, there was no evidence requiring the instruction.</p> <p>3. Verdict.—Trying a charge punishable with the penitentiary for “not less than one year nor more than two years,” the finding of the jury was, “We, the jurors, find the defendant guilty, and assess the punishment twelve months in the state penitentiary.” Held, a good verdict.</p>

<p>Appeal from the District Court of Milam. Tried below before the Hon. S. Ford.</p> <p>The opinion sufficiently states the case.</p>

<p>1. Venue.—Proof of the venue of the offense must he shown by the record. This court cannot presume that such proof was made, but inadvertently omitted from the statement of facts.</p> <p>2. Same—Statement of Pacts.—Judges and prosecuting officers cannot be too careful in seeing that the proof of venue, if made at the trial, is shown by the statement of facts.</p> <p>3. Theft—Charge of the Court.—In a trial for theft it was error to so charge the jury as to permit the conviction of the accused without proof of guilty knowledge or intent.</p>

Tried below before the Hon. D. M. Prendergast. The indictment charged that, on February 3, 1877, with force and arms, in the county of Limestone and state of Texas, the accused, “ then and there, into the store-house there situated of Samuel Richardson, which said storehouse the said Samuel Richardson then and there occupied and used, in which said store-house the said Samuel Richardson was then and there doing the business of a retail merchant, and was then and there…

Tried below before the Hon. J. L. Camp. The deceased was a child of four or five years of age, and, according to a witness for the accused, was his child. The child died on a night early in July, 1875, a few hours after the defendant had given him a severe whipping or beating.

<p>Appeal from the District Court of Webb. Tried below before the Hon. E. Daugherty.</p>

<p>Appeal from the District Court of Waller. Tried below before the Hon. W. H. Burkhardt.</p> <p>The case is stated in the opinion.</p>

Tried below before the Hon. E. Walker, County Judge. The special plea set out the dates and particulars of the first information and trial, so as to identify the offense with that now on trial.

<p>1. Construction of Statutes.—The general rule that, of several conflicting statutes, the latest prevails, is applicable, though such latest statute be but a municipal charter, or a special act.</p> <p>2. Legislative Power.—In the absence of constitutional restrictions, it is competent for the legislature, by charter or special act, to empower a municipality to license within its limits occupations which are illegal and punishable under the general laws of .the state; and a municipal charter and by-laws may, expressly or by necessary implication, thus supersede the general law on such subjects, within the limits of the corporation.</p> <p>5. Licensed Houses of Prostitution.—The Penal Code of 1858 punishes, for misdemeanor, keepers of houses of prostitution. By special act of the legislature of 1871, power to license such houses was conferred upon the corporate authorities of Waco, who by ordinance provided for such licenses, but reserved the right to annul any city license on repayment of unearned license money. Held, that the special act of 1871, and the municipal ordinance, exempted from the operation of the Penal Code a licensed keeper of a bawdy-house within the corporation, so long as the license remained in force; and that a repeal of the ordinance, before the expiration of the license, did not revoke or annul the license unless the license money for the unexpired term was repaid or tendered to the licensee. And, further, that a municipal license, so obtained and unannulled, constituted a defense in a state court to an indictment under the provisions of the Penal Code for keeping "a house of prostitution within the limits of the licensing municipality.</p> <p>4. Considerations based upon public policy or moral principles, impugning legislation of this character, should be addressed to the legislature or the municipal authorities, not to the courts.</p>

Tried below before the Hon. S. Ford. The indictment charged the appellant with the murder of Woods McLellan, on September 16, 1876. The deceased was a negro, and lived in a cabin on the farm of the accused.

Tried below before the Hon. S. R. Frost, County Judge. The evidence for the state is disclosed in the opinion. A witness for the defense differed somewhat from the prosecuting witness, and testified that the defendant commenced drawing his pistol instantly after the board was seized by the prosecuting witness.

<p>Appeal from the District Court of Johnson. Tried below before the Hon. D. M. Prendergast.</p>

<p>Appeal from the District Court of Denton. Tried below before the Hon. J. A. Carroll.</p>

<p>Aggravated Assault.—The word officer, as used in Article 488 of the Penal' Code, which defines aggravated assaults, includes not only the officials designated in the preceding Article 339, and in Articles 52, 53, and 54 of the Code of Criminal Procedure, but also all other persons legally-authorized to perform public duties. A policeman of an. incorporated: town or city is an officer within the meaning of Article 488 of the Penal Code (Pasc. Dig., Art. 2150).</p>

Tried below before the Hon. J. P. Richardson. The indictment in this case was returned into court October 21, 1875, charging the appellant with the murder of George McNelly, on the 17th of the same month. At a subsequent day of the same term the case came to trial, resulting in a verdict of guilty of murder in the first degree, with imprisonment for life assessed as the punishment.

<p>Theft—Evidence.—See this case for evidence held insufficient to show a, felonious intent, notwithstanding the accused participated in the killing of the stolen beef, and afterwards falsely denied possession of part of the meat.</p>

Tried below before the Hon. L. W. Moore. The opinion of this court discloses all material facts. The appellant was found guilty, and his punishment was assessed at five years in the penitentiary.

Tried below before the Hon. E. Lewis. The indictment charged the appellant with the theft of a beef.steer of the value of $15. The verdict is recited in the opinion of this court.

<p>Appeal from the District Court of Guadalupe. Tried below before the Hon. E. Lewis.</p>

Tried below before the Hon. J. A. Carroll. The indictment was for assault with intent to murder F. W. Ball. The jury returned a verdict of guilty of aggravated assault, and assessed the punishment at a fine of $1,000 and two years’ imprisonment in the county jail.

Habeas Corpus sued out to the Court of Appeals. The relator, Dennis Call, Jr., alleged that he was illegally restrained of his liberty by the sheriff of Orange county, by virtue of a judgment rendered by the county court of said county, to the effect that the state of Texas have and recover of the relator the sum of $5 and costs of suit, and that he remain in the custody of the sheriff until-said fine and costs are paid Relator alleged that the cause wherein said judgment…

Tried below before the Hon. B. E. Green, County Judge. The charge against the appellant was resisting and opposing an officer’s making an arrest of one Hewitt. The verdict was, guilty, with a fine of §250.

<p>Appeal from the District Court of Hunt. Tried below before the Hon. G. J. Clark.</p> <p>The accused, it seems, made a raid one night on a neighbor’s smoke-house, broke into it, and stole half a side of bacon. Hence this indictment.</p> <p>The loser was a witness for the .state. His account of finding and identifying his meat was as follows :</p> <p>“ I wont to Johnson Haney’s and told him I had lost the meat, and that he was suspicioned. He said he was innocent. I. asked him to show me his meat, and- he did so. He took out one or two pieces from a box he had it in, and then stopped. I told him to go on, and he then got out a piece that I recognized' as mine." It was about a half of a middling. I had split a middling open, and sold ,him half of it, a few. days before, and the piece missed was the other half. I tried to fit it to the piece he had, and which I had sold him, and it fit verbatum.”</p>

<p>1. Repeal of Penal Law.—When a law defining an offense and prescribing-a penalty therefor has been repealed by an act which provides no saving clause for such offenses already committed, convictions for such offenses pending on appeal must be set aside.</p> <p>2. Same—Theft from a House.—The act of August 21, 1876, repealed Article 764 of the Penal Code, which defined and punished theft from a house as a specific offense, and the repealing act provides no saving of prosecutions pending for violation of said Article. A conviction under-said repealed Article pending in this court on appeal is set aside in the-present case.</p> <p>3. Remand for Trial in such Cases.—The indictment in this case being sufficient to charge simple theft, the cause is remanded to the court below. (But see Montgomery v. The State, post, 618, overruling this disposition of' convictions for theft from a house pending in this court, and holding that the repealing act of 1876, in connection with Article 15 of the Penal Code, exempts such offenders from further prosecution.)</p> <p>4. Charges of the Court in felony cases must be signed by the presiding judge.</p>

Tried below before the Hon. W. A. Blackburn. The evidence is summed up in the opinion of the court. It does not disclose the cause of the hostility between the deceased and the defendants. The murder was committed in January, 1876.

<p>Gaming—Evidence.—A conviction for playing cards at “a house for retailing spirituous liquors.” was had on evidence that the playing was done in a house which was on the same town lot with a drinking saloon, but nowise connected with the saloon, or controlled by its keeper, and which was accessible to the public otherwise than through the saloon. Held, that the evidence does not sustain the conviction, and it was error to refuse a new trial.</p>

Tried below before the Hon. M. H. Bonner. The case is stated in the opinion of the court. The extract from the indictment embodied in the third head-note omits the phrase held to be surplusage.

Tried below before the Hon. E. Dougherty. The indictment charged the date of the burglary as of October 13, 1876, and alleged no value to the property intended to be stolen.

Tried below before the Hon. B. S. Williams, County Judge. The charge was aggravated assault by an adult male on a female. Verdict of conviction, and fine of $100.

<p>1. Officers.—The act of April 7, 1873, “to regulate the conduct of public officers,” so far as it requires from officers a report of public moneys collected by them, and subjects them to indictment for failing so to report, applies to ministerial officers only, and not to justices of the peace.</p> <p>2. Same—Indictment.—To charge a violation of said act it is not sufficient to allege that the officer failed to make a report; the indictment must allege that he had collected such moneys, and had failed to make report thereof as required by the act. Acts 1873, 34.</p>

<p>1. Final Judgment.—The judgment entry duly recited the proceedings prior to the verdict, and also the verdict itself, which found the accused guilty and assessed a fine against him, and then the entry concluded thus: “ It is therefore ordered, adjudged, and decreed by the court that the sheriff take the defendant in custody until the fine and costs are paid.” Held, not a final judgment of conviction.</p> <p>2. Appeals do not lie from judgments overruling motions for new trial. Early cases countenancing such appeals have been overruled.</p>

Tried below before the Hon. S. Ford. The case is disclosed in the opinion. The testimony expected from the absent witness, Smith, is embodied in the fourth head-note.

<p>Appeal from the County Court of Titus. Tried below before the Hon. J. F. Wilkinson, County Judge.</p>

<p>1. Charge of the Court.—Other law than that applicable to legitimate deductions from the evidence should not be given in charge to the jury, because calculated to mislead.</p> <p>2. Same on Degrees of Offenses.—Law applicable to less degrees of the offense charged in the indictment should not be given to the jury unless there be evidence before them requiring such law to be given them. See the opinion for a state of facts in a trial for assault with intent to murder, in view of which a charge upon aggravated assault would have been inapplicable and improper.</p> <p>3. Assault with Intent to Murder.—Armed with a pistol and an open dirk-knife, accused provoked and brought on a personal conflict, during which he shot, and attempted to kill, his antagonist. Held, that passion, engendered by the conflict, can supply no mitigation of the offense from an assault with intent to murder to aggravated assault.</p> <p>4. Drunkenness does not mitigate voluntary crime.</p>

<p>1. Theft.—An indictment for the theft of several articles may allege an aggregate value to the whole, without alleging a separate value to each of the articles. But it has been decided in this state that, to convict under such an indictment, the proof must show the theft of all the articles.</p> <p>2. Certainty.—An indictment charged the theft of sundry different articles of clothing and household goods, describing them only by number and name, and alleging an aggregate value to the whole, with a statement that a more specific description was to the grand jurors unknown. Held, to be sufficiently certain to enable the accused to plead the judgment in bar of another prosecution for the same offense—which is the statutory criterion of certainty in an indictment.</p> <p>3. Ownership.—If a married woman has been abandoned by her husband, the ownership of community property stolen from her possession may be alleged to be in her.</p>

Tried below before the Hon. D. M. Prendergast. The appellant and Walter Howeth, the deceased, together with two brothers named Davis, all young men, had been drinking; in the town of Alvarado on the evening of the killing, and left town early-in the night and. in company. About a mile from the town Howeth was shot through the. head and killed.

Habeas Corpus on appeal from a judgment in chambers, rendered by the Hon. B. T. Estes, Judge of the Fifth Judicial District.

Tried below before the Hon. G. J. Clark. This record discloses a case of a peculiar and remarkable character, necessitating a careful statement of the facts. The indictment was filed in the court below on January 25, 1877. It charged that James A. Morris, S. L. Morris, Jasper Morris, W. M. McComas, J. D. Marse, and Mrs. Eliza Davis, the appellant, did, on January 9, 1876, murder a peddler named Miller, with an ax.

<p>Appeal from the County Court of Hunt. Tried below before the Hon. H. B. Simonds, County Judge.</p> <p>The case is stated in the opinion.</p>

<p>1. Change of Venue.—It is no longer questionable that, when the defendant asks a change of venue on account of prejudice or influential combination against him, the court may examine his supporting affiants touching their means of knowledge respecting the matters alleged in their affidavits.</p> <p>2. Same.—The discretion vested in the district judges to determine the truth and sufficiency of applications for change of venue is a judicial, not a personal, discretion, and subject to revision by this court, on appeal, when duly presented by bill of exceptions.</p> <p>S. Same,—A change of venue cannot be granted upon a different ground than that specified in the application.</p> <p>-4. Same—Case Stated.—Accused and his three supporting affiants swore positively to an influential combination against him, etc. The court below, despite objection by the accused, examined his affiants, and they disclosed their ignorance of such a combination, but concurred in stating that such prejudice existed against the accused that he could not get a fair trial in the county. Held, that the application was correctly overruled, though no countervailing witnesses were called to disprove the alleged combination.</p>

<p>1. Immunity by Repeal of Penal Law.—The act of August 21, 1876, which-took effect from its passage, repealed Article 764 of the Penal Code, which' defined and punished theft from a house as a specific offense, and the-repealing act makes no provision respecting cases pending. Held, that such cases are controlled by Article 15 of the Penal Code (Pasc. Dig., Art. 1617), and, therefore, offenders against the repealed Article cannot be punished therefor, even though indictments against them were pending at. the time of its repeal.</p> <p>2. Same—Case Stated.—In 1874, while Article 764 of the Penal Code was in-force, appellant was indicted for theft from a house, of property worth $100. In December, 1876, and subsequent to the repeal of that Article, he-was placed on trial, and, according to the record, “elected to be tried under the new law,” and the judge gave in charge to the jury the law-applicable to theft of property worth $20 or over, except that he charged the penalty prescribed by the repealed Article, the maximum of which was less than that of theft of property worth $20. The jury found the-accused guilty of theft of property worth more than $20, and assessed his-punishment at two years in the penitentiary, which was the minimum penalty prescribed by the repealed Article, and also the minimum for theft of property worth $20 or over. Held, that, inasmuch as the repealing act made no provision for pending cases, the conviction must be set aside and the cause be dismissed.</p> <p>3. Case Overruled.—Hubbard v. The State, ante, p. 506, so far as it conflicts with the above rulings, is overruled.</p>