Volume 20 — Texas Court of Appeals Reports

Tried below before F. B. Sexton, Esq., Special Judge. The indictment charged the appellant with the murder of Andy ■Flake, in Panola county, Texas, on the 20th day of January, 1884. His trial resulted in his conviction for manslaughter, and his punishment was assessed at a term of two years in the penitentiary. John Solomon, colored, was the first witness for the State.

Tried below before the Hon. F. E. Finer. The indictment in this case charged the appellant with the murder of J. W. Kerr, in Montague county, Texas, on the 2d day of Juljq 1885. His trial resulted in his conviction of murder in the second degree, and his punishment was assessed at confinement in the penitentiary for the term of five years. J. T. S. Stallings was the first witness for the State.

Tried below before the Hon. T. B. Wheeler. The indictment in this case charged the appellant with the murder of John Harris, in Comanche county, Texas, on the 14th day of October, 1884. His trial resulted in his conviction of murder in the second degree, and his punishment was affixed at a term of seven years in the penitentiary. William Barnes was the first witness for the State. He testified that the deceased, John Harris, was killed on Tuesday, October 14, 1884.

Tried below before the Hon. F. A. Williams. The indictment in this case charged the appellant with the murder of G. W. Montzingo, in Houston county, Texas, on the 27th day of October, 1883, by stabbing him with a knife. This is the second appeal prosecuted in this case, the penalty assessed on the last trial being confinement in the penitentiary for the term of five years.

Tried below before the Hon. J. A. B. Putman. The conviction in this case was for the theft of five head of cattle, the property of W. H. Perkins, in Hopkins county, Texas, on the 7th day of April, 1884. A term of two years in the penitentiary was the penalty assessed against the appellant. W. H. Perkins, the first witness for the State, testified that he lived in Hopkins county, Texas, about one mile north from Sulphur Springs.

Tried below before the Hon. F. A. Williams. The indictment charged the appellant with the murder of George Pitman, in Henderson county, Texas, on the 7th day of August, 1882. The conviction was for murder of the first degree, the penalty assessed being a life term in the penitentiary. Doctor P. E. A. Williams was the first witness for the State. He testified that he saw a dead body in Coon creek on the 19th day of August, 1882.

<p>Circumstantial Evidence — Charge of the Court.— Failure of the trial court to instructthe jury as to the law applicable to circumstantial evidence, when the case for the State rests solely upon that character of evidence, is fundamental error. See the facts of this case in illustration.</p>

<p>t. Theft — Possession—Variance.—• Indictment in this case alleged the ownership of the stolen property to be in M. W., and that it was taken from her possession. The proof showed that M. W. was a widow; that the stolen animal was the property of herself and her children by her deceased husband ; that M. W., if not a lunatic, had not been able to attend, and had not attended, to her business affairs for years; that she lived with S., her father, who attended to her business and was the guardian of her children, and had the sole care and control of the property when stolen. Held, that, under the facts, the indictment should have alleged that the property was taken from the possession of S.; or else it should have alleged the ownership in M. W. and her children, and charged that it was taken from the possession of S., who was holding the same for them. The variance between the allegation and proof of possession is fatal.</p> <p>2. Same.— Venue of the offense is an issue which, to support a conviction, must be affirmatively proved.</p>

<p>Former Jeopardy—Discharge of Jury—Charge of the Court.—See the opinion in extenso for circumstances under which it is held that the court, upon a former trial of the case, did not abuse the discretion conferred upon it to discharge the jury “ when they had been kept together such a length of time as to render it altogether improbable they could agree.” (Code of Criminal Procedure, article 701.) It is only when the discretion conferred by the said article has been abused to the prejudice of the rights of the accused, that this court will interfere. The trial court, therefore, did not err in instructing the jury on this trial to find the defendant’s pleas of jeopardy and former acquittal untrue.</p>

Tried below before the Hon. D. H. Scott. The indictment charged the murder of Mrs. E. Tighe in Lamar county, Texas, on the 18th day of May, 1885. Trial resulted in the conviction of the appellant for murder in the second degree, and his punishment was affixed at a term of five years in the penitentiary. Miss Maud Holmes, the daughter of the defendant, was the first witness for the State.

<p>Habeas Corpus on appeal from the County Court of Palo Pinto. Tried below before the Hon. E. K. Taylor, County Judge,</p>

Tried below before the Hon. H. Teichmueller. The conviction in this case was for an assault with intent to murder one Walter Moore, in Bastrop county, Texas, on the 2d day of November, 3884. A term of four years in the penitentiary was the penalty awarded.

Tried below before the Hon. J. C. Russell. The conviction in this case was for an assault with intent to murder, one Vidal Flores, in Starr county, Texas, on the 11th day of January, 1885. The penalty imposed was a term of two years in the penitentiary.

Error from the District Court of Cameron. Tried below before • the Hon. J. C. Russell. The writ of error in this case was prosecuted from the judgment of the trial court forfeiting the appearance bond of Guadalupe Beltran, bailed under a charge of felonious theft. The amount of the bond and judgment was $300.

Error from the District Court of Cameron. Tried below before the Hon. J. C. Bussell. This writ of error was prosecuted from the final judgment of the trial court on the forfeited bond of Guadalupe Beltran, bailed under a charge of felonious theft. The amount of the bond and judgment was $150.

<p>Theft—Charge of the Court.— Circumstantial Evidence being alone relied upon to establish the fraudulent taking of the alleged stolen animal, the trial court, by failing to give in charge the law governing such evidence, committed fundamental error.</p>

Tried below before the Hon. H. Teichmueller. The conviction in this case was for the theft of a horse, the property of James ¡Reynolds, in Fayette county, Texas, on the 29th day of October, 1884. A term of six years in the penitentiary was the penalty awarded. james ¡Reynolds was the first witness for the State. He testified that he lived near the town of Schulenburg, in Fayette county, Texas.

<p>1. Practice —Jeopardy—Bill op Exceptions.—It is not essential to the sufficiency of a plea of former jeopardy that a record of the proceedings on • the former trial shall be perpetuated by a bill of exceptions.</p> <p>2. Same.—Former Jeopardy is a constitutional and not a statutory defense to crime, and although the plea of former jeopardy is not one known to the statutory law of this State, and has no place assigned it in the regular order of pleading, it is a plea available to an accused, under the provision of the Constitution, and may be interposed even after the jury has been impaneled, and the plea of not guilty entered. The trial court, therefore, erred in striking out the defendant’s plea of former jeopardy in this case, upon the ground that, being filed after the jury was impaneled and the plea of not guilty entered, it was filed too late.</p> <p>3. Jeopardy—Case Approved.—A definition of jeopardy to which this court adheres was announced in Powell’s case, 17 Texas Ct. App., 345, as follows: “When a person has been placed upon his trial upon a valid indictment for an offense involving life or liberty, in a competent court, and á competent jury has been impaneled, sworn and charged with his case, he is ‘ put in jeopardy ’ within the meaning of the constitutional provision, and from a repetition thereof upon the same indictment, or upon any other indictment . ' for .the same offense, this constitutional shield forever protects him. Wherefore, after jeopardy has once so attached, if without lawful authority the trial court discharges the jury without his consent and before verdict, he cannot legally be again tried for the same offense.” See the opinion in extenso on the question.</p> <p>4. Same—Practice—Continuance—Jury Law.— Article 568 of the Code of Criminal Procedure provides that “ a continuance may be granted on application of the State or defendant after the trial has commenced, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had; or the trial may be postponed to a subsequent day of the term.” Held, that it is not contemplated by the said article that, in case of postponement of the trial, after the jury was impaneled, the court had also the right to discharge the jury; nor would it have such right even in the case of a continuance for the term, except upon a clear showing of necessity.</p> <p>5. Jeopardy — Case Stated.—- This case was originally reached and called on ' the 23d day of October, 1885, when both the State and the defendant announced ready for trial. A jury was legally impaneled and sworn, the indictment was read to them and the defendant entered his plea of “not guilty.” Thereupon the State’s attorney, upon' the ground that he had announced ready upon the incorrect information of the sheriff that the principal prosecuting witnesses were in court, moved the court to postpone the trial to a future day of the term, and discharge the jury, to which motion • the defendant objected that he was already upon trial, and was in jeopardy. The court overruled the objection, discharged the jury and postponed' the trial. Held, that the defendant was in jeopardy, and his plea of former jeopardy, interposed at the subsequent day when he was placed upon trial before another jury, should have prevailed. See the opinion in extenso on the question.</p>

<p>1. Practice —Indictment.— If an indictment recites upon its face .that it Was presented in the district court of the proper county and State, by the grand jurors of said county, duly elected, impaneled, sworn and charged as such, the presumption obtaius that it was presented by a legal grand jury of "the proper county, and to prevail against such presumption, it devolves upon the defense, in its motion to set aside the indictment, to satisfactorily show that, in fact, the indictment was not the act of a legal grand jury of the county; and to do this, it is not sufficient to show merely that there is no entry upon the minutes of the court formally reciting the organization of the grand jury.</p> <p>3. Same — Grand Jury.— Indictment is not vitiated by the omission to enter upon the minutes of the court the organization of the grand jury which presented it. although correct practice requires the entry of such proceeding.</p> <p>3. Same—Amendment.— Before the trial was entered upon in this case, the trial court, upon the motion of the district attorney, caused to be entered upon the minutes nunc pro tune, the proper entry showing the organization of the grand jury which presented the indictment, and that the said grand jury was the legal and duly qualified grand jury of the proper county. Held, correct.</p> <p>4. Same.—It was not error to permit the clerk of the district court to amend his signature to the file mark on the indictment by appending thereto the initials designating his official character. Such a clerical omission can be supplied at any time under the direction of the trial court, and, besides, the filing, even without the amendment, was sufficient.</p> <p>5. Same.—Indictment for murder sufficiently alleged the name of the deceased as “ one Chino, whose other name is to the grand jurors unknown.”</p> <p>6. New Trial.— Newly Discovered Evidence does not entitle an accused to a new trial when the proceedings disclose a total failure to exercise diligence to obtain it upon the trial. Note in this case a failure of diligence, wherefore the trial court, in view of the evidence adduced, did not err in refusing a new trial upon the ground of newly discovered evidence.</p> <p>7. 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 Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>The conviction in this case was for the theft of a horse, the property of Epitacio Lujan, in Bexar county, Texas, on the 10th day of September, 1885. The penalty assessed against the appellant was a term of five years in the penitentiary..</p>

<p>Appeal from the District Court of Limestone. Tried below before the Hon. L. D. Bradley.</p> <p>The conviction was for the rape of Eliza McGee in Limestone county, Texas, on the 23d day of May, 1885. The penalty assessed against the appellant was a term of five years in the penitentiary.</p> <p>Eliza McGee was the first witness for the State. She testified that she lived with Mr. Dick Ward, on Honest Eidge, in Limestone county, Texas. The defendant, until May, 1885, lived in the same neighborhood, and near the said Ward’s house. After supper one Saturday night, late in May, 1885, the witness left Mr. Ward’s house to go to that of Charley Johnson, about a half-mile distant. The path between the two houses traversed a field. Witness met the defendant in that path at a point near where it left the growing corn and entered a cotton patch. The defendant said nothing, but caught witness, threw her down and despite her struggles and cries, pulled up her clothes, got on top of her, introduced his privates into hers, and went to work. Witness protested, begged and ordered him .to quit, but defendant, who was physically greatly superior, ordered her to “ hush up,” and persisted in having carnal knowledge of her. After he succeeded in carnally knowing her, defendant got up, told the witness to “go, Gf—d d—n her,” and that he would kill witness if she reported the transaction. He accomplished his purpose by force and over the protest and resistance of the witness. The point of contact was between two corn rows, on the ground. The ground was very wet from recent rains, and the violent exercise of assault and resistance muddied the witness’s clothing pretty much all over. While defendant had witness down, and was on top, Sam Favors, a brother to defendant, came along and remarked: “ Ah! I have caught you! ” Sam passed on, laughing. Within a few minutes defendant let witness up, and she continued on towards Charley Johnson’s house, crying. She met Charley on the way, told him of the outrage upon her, and showed him the place in the corn row where it took place. Charley went with her back to Hr. Ward’s, to whom witness complained of the outrage.</p> <p>Cross-examined, the witness said that she had no appointment to meet the defendant at any place on that night for copulative or other purposes. She had not passed her promise to accommodate the defendant with horizontal refreshment on that or any other night. He had never~befoFeTormed the carnal acquaintance of the witness. When she started to Charley Johnson’s house, the witness left several parties, including her brother, Bob HcGree, at her house, where a fiddle was being played for general amusement. She declined to wait for her brother, who said that he was going to Johnson’s after a while. The defendant had not been in the habit of slipping to and dividing with witness the use of her bed at night. He said nothing when he assaulted her. The witness did, on the examining trial, swear that when he caught her he said: “ I want some.” Hpon reflection the witness reiterates that statement. Witness had discussed the outrage upon her with several parties, but had never told Aline Thomas that she would not have reported defendant but for Charley Johnson. Johnson did not prevail upon her to report defendant. Witness had never, at the house of defendant’s mother, had a scuffle with defendant over a snuff box. The witness passed one night at the house of Eerva, the defendant’s mother, but did not on that night sit up with the defendant for a long time after everybody else in the house had retired. In answer to a question, the witness admitted that she told defendant’s counsel that, when assaulted by the defendant, she told defendant that she “ did not want to do it there, because they would be caught.” Defendant winked at witness on the examining trial, when witness dropped'BgrTiead and laughed.</p> <p>Re-examined, the witness stated that the brother, sister and mother of the defendant had tried to prevail upon her not to testify against the defendant. The conversation between Mr. Kincaid, the defendant’s counsel, as detailed by the witness, was conducted on his part in a peremptory, short manner. As a matter of fact, the witness did not, when assaulted by defendant, say to him that she did not want to engage in carnal exercise with him then and there because she was afraid of detection. The defendant had never detected witness and Sam Favors in carnal juxtaposition, standing up. Witness bad never had carnal intercourse with Sam Favors, standing up. Witness did not say to defendant, after Sam Favors passed them, while defendant had her down: “You have been talking about catching Sam, and now he has caught you.”</p> <p>Sam Favors, the defendant’s half-brother, testified, for the State, that he knew of the transaction which gave rise to this prosecution. On his way home through the field that night, the witness’s attention was attracted by voices about one hundred and fifty yards in advance of him. His first impression was that two parties were laughing and talking. When he reached a point between fifty and one hundred yards of the parties, he heard a woman’s voice calling “quit! quit!” Witness stopped a moment or two and listened to the woman’s voice continuing to call “quit! quit! ” He then walked on, and when he reached a point about thirty yards from the parties he saw them on the ground, and heard the voice of Eliza McGee say: “Quit, Jo., quit; somebody is coming.” Witness then pa,ssed them at a very short distance, and as he did so remarked: “ Aye-aye! I have caught you.” Eliza thereupon remarked to defendant: “How Jo., you have been talking about catching Sam, and he has caught you.” After he had passed the parties witness heard somebody whistling. Witness testified that he first heard and recognized Eliza McGee’s voice at a distance of about two hundred yards, but could not distinguish her words, and that when he had approached fiftyyards nearer he distinguished the word “quit” spoken by Eliza. Subsequent measurement of distances enables witness to testify more particularly, and his present testimony is not affected by the fact that the disagreement which, at the time of the examining trial, existed between witness and defendant has been since removed. Witness had carnally known Eliza McGee, and was once, while copulating with her in a standing position, detected by the defendant.</p> <p>Charley Johnson testified, for the State, that he lived on R. P. Ward’s place. After supper on the night of the alleged rape, witness started from home to go to the house of Sam Favors. On his way he heard Eliza McGee calling in distress. She said, as witness understood her: “ Do you take me for a fool? I am going to Groesbeeclc and have you put in jail.” She was then at least two hundred and fifty yards distant from the witness. Witness started towards her, and met her going towards his house. She was weeping, and told him that defendant had overpowered and outraged her. She then pointed out the place where she said the outrage had been perpetrated. The ground was so torn up that it looked like the scene of a bull-fight. Defendant’s feet had dug deep into the ground, leaving plain tracks. Witness advised her to go back and report the occurrence to Mr. Ward. She replied that she was afraid defendant would kill her if she did so. Witness then agreed to go with her, and did so. Mr. Ward was informed of the transaction, and suggested that investigation be postponed . until next day. The moon was shining on the night of the alleged rape. Witness could see the point on the trail where it was said that the outrage was perpetrated, from quite a little distance. It was about two hundred yards from where witness met Eliza, about four hundred yards from Ward’s house, and about five hundred yards from Sam Favors’s house, where the defendant lived.</p> <p>Cross-examined, the witness said that he was a preacher, but Eliza McGee was not a member of his church. He, witness, was a Baptist, while Eliza was a Methodist. Witness had no ill feeling for the defendant, but, on the. contrary, loved him. Before witness went to Mr. Ward about the alleged outrage, be went to Charley Bass, and then to Sam Favors. A path from Sam Favors’s house to that of his mother crossed the path on which the outrage was reputedly committed, not far from the point of commission.</p> <p>H. P. Ward testified, for the State, that Eliza McGee had worked at witness’s house for about eight years, for her food and clothing. She was a simple, silly-minded, childish negro. Witness saw her on the morning after her alleged rape. Her dress, behind, was muddy from head to foot. Witness went to the place of the alleged rape, and found the ground, covering a space of three or four feet in diameter, greatly torn up. A struggle had evidently taken place on the ground. Witness went to defendant’s house, called him out, and told him that he had placed himself in a troublesome position, and asked him why he did it. He replied: “ Eliza promised me some and I took it.” Eliza’s reputation for chastity was bad.— “about on an average with that of other unmarried negro women.”" The State closed.</p> <p>Will Terrell testified, for the defense, that the general reputation of Eliza McGee for chastity was very bad. That of Charley Johnson for truth and veracity was bad, and about an average'for a negro. C. B. Ward, Joe Peebles and Jeff Johnson testified substantially as did Terrell, except that Ward and Johnson said nothing about Charley Johnson’s reputation for truth and veracity.</p> <p>Aline Thomas, defendant’s half-sister, testified in his behalf that, about two weeks after defendant’s arrest, Eliza McGee told her that she had nothing to do with reporting the defendant for throwing her down in the corn field. Eliza’s reputation for chastity was very bad.</p> <p>Will Eavors, defendant’s brother, testified, for the defense, that Eliza McGee had passed many nights at his mother’s house where the defendant lived. Witness saw defendant and Eliza one night, at defendant’s mother’s house, scuffling in play .over a snuff box. Eliza’s reputation for chastity was very bad.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

<p>li Practice.—Continuance is properly refused if it be sought to secure testimony which, in the light of the evidence adduced, is not probably true.</p> <p>2. Theft—Evidence—Fact Case.— See the statement of the case for evidence held sufficient to establish the identity of the accused, and to support a conviction for theft.</p> <p>3. Same—Surprise. — The primary remedy against a surprise by reason of the self-contradictory testimony of a witness is' by seeking a continuance, or a postponement of the trial to a subsequent day of the term. But see the opinion for evidence held not to operate as a surprise.</p> <p>4. Same — Charge of the Court — Circumstantial Evidence.— This court will not reverse a judgment of conviction because of an erroneous charge upon the weight of circumstantial evidence, in the absence of a bill of exceptions or a showing of manifest prejudice to the rights of the defendant.</p>

<p>1. Theft—Term Defined.— “ Possession ” as used in the statutory definition of theft is constituted by the person unlawfully deprived of the property exercising actual care, control and management of the property, whether the same be lawful or unlawful.</p> <p>2. Same.— An animal on the range is, if there be a special owner, in the possession of the special owner if he has the actual care, control and management of the same.</p> <p>3. Same—Ownership—Indictment.—It is a well settled rule of pleading that the ownership of stolen property may be alleged either in the actual or special owner.</p> <p>4. Same —Pleading —Indictment —Evidence.—The common law rules of pleading which appertain to theft cases have been superseded in this State by rules prescribed by statutory enactment. Under the Code of this State, with respect to the theft of property having an actual and also a special owner, when it is sought, instead of alleging the ownership and possession in the special owner, to charge with respect to both owners, the indictment, to be sufficient, should allege the possession in the special owner, having the actual care, control and management of the same, and holding it for the real owner. The indictment in this case, alleging both the ownership and possession in P. H., is not supported by evidence which establishes the real ownership in P. H., but that the property was taken from the possession of G-. H., who had the actual care, control and management of the same. See the opinion in extenso for an elaborate discussion of the question, and for an elucidation of the differences between tire common law of larceny and the law of theft under the Texas Codes.</p>

Tried below before the Hon. W. H. Ford. The conviction was for the theft of a jam pole of the value of $2.50, the property of Patillo Higgins, in Jefferson county, Texas, on the 1st day of Hovember, 1884. The penalty assessed against the appellant was a fine of $25 and confinement in the county jail for the period of twenty-four hours.

<p>Appeal from the District Court of Webb. Tried below before the lion. J. C. Bussell.</p> <p>The opinion sufficiently discloses the case. A term of two years in the penitentiary was the penalty awarded.</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>Upon an indictment which charged her with the murder by poison of Alfred Owens, in Bexar county, Texas, on the 221 day of June, 1885, the appellant was convicted of murder in the first degree,, and was awarded a life term in the penitentiary.</p> <p>Doctor Lowery was the first witness for the State. He testified that he was called to see the deceased professionally on June 22, 1885, and arrived a few minutes before his death. When he arrived he found the deceased in a state of collapse and in a dying condi-, tion. He was suffering with cramps, vomiting and purging. His symptoms were those of arsenical poisoning. Witness prescribed" for the deceased and for a little girl who was sick at the same time. The prescriptions written by witness were introduced and identified. The defendant, the deceased’s wife, and some small children were present when the witness arrived. On his cross-examination the witness stated that the symptoms of the deceased were such as attended cholera and cholera morbus as well as arsenical poisoning. Witness made no post-mortem examination of the body of the deceased.</p> <p>George H. Kalteyer was the second witness for the State. He testified that for sixteen years past he had been by profession a drug-. gist and chemist. On the 22d day of June, 1885, he was applied to by Justice Neuendorf to make a chemical analysis of the contents' of the stomach of Alfred Owens, deceased. He accordingly made arrangements to do so, provided the glass jar for the transfer of the stomach to his laboratory, and received the jar containing a stomach, said to be that of Alfred Owens, on the night of June 22, 1885. The jar, with the stomach tied at both ends, was brought to witness’s place of business about 9 o’clock on the night of June 22, by Deputy Sheriff Krempkan. Witness opened the stomach the same night in the presence of Doctor Brannagel, who recognized it as the stomach of the deceased. He then locked the stomach in his laboratory, to which no one but himself had access. On the next day, June 23, witness analyzed the contents of the stomach. He found it about one-fourth filled with a liquid substance. Witness found in the stomach eighteen and four-tenths grains of white arsenic, which was a sufficient amount, independent of what had been absorbed by the tissues of the spleen, stomach, liver and general circulation, to kill a half dozen people. It is the poison thus absorbed that produces death. Arsenical poisoning is symptomized by vomiting, .purging, cramp and constant thirst. On the following day Deputy Sheriff Krempkan brought to the witness at his laboratory an oblong dish, a round plate and a cup and saucer. There was grease but no arsenic on the oblong dish. On the round plate the witness found some grease and some crystals of white arsenic. The witness identified the round plate in evidence, and pointed out the crystals of arsenic. He also produced the eighteen and four-tenths grains of arsenic taken by him from the stomach which he analyzed.</p> <p>, Cross-examined, the witness stated that he was not present at the postmortem examination. He could not say of his own knowledge that the stomach analyzed by him was the stomach of Alfred Owens, but it was given to him as the stomach of the said Owens, and was identified as Owens’s stomach by Doctor Brannagel. Witness did not know who owned the dish, plate and cup and saucer delivered to him by Krempkan', nor from whose possession they passed intoKrempkan’s hands.</p> <p>August Krawitz was the next witness for the State. He testified that he was a member of the jury of inquest which sat upon the body of Alfred Owens, and suggested to Justice of the Peace Heuendorf the propriety of a post-mortem examination. Witness was present and saw Doctor Brannagel open the body, and helped him to remove, the stomach and place it in a glass jar. Witness then, in company with Henry Krempkan, took the glass jar containing the stomach, and drove in a buggy to the drug store of George Kalteyer. Krempkan took the jar containing the stomach from the buggy into the drug store, and delivered the same to George Kalteyer. Ho one tampered with the stomach from the time it was removed from the body until it was delivered to Kalteyer. Witness found a dish and plate on the table in the kitchen of the deceased’s house, and as he-looked upon their contents with suspicion, he took them to Kalteyer on the 23d day of June. The stomach, just as it was taken from the body, except being tied at both ends, was delivered to Kalteyer between 8 and 9 o’clock on the night of June 22, 1885.</p> <p>George Smith testified that he was a clerk in the drug store of George Kalteyer, in San Antonio, Texas, and was so employed in June, 1885. On the evening of June 21, 1885, the evening prior to the death of Alfred Owens, the defendant carae to Kalteyer’s drug store and asked for “ rough on rats.” As that poison sold for fifteen cents per package, and as the defendant had but ten cents, the witness advised her to take arsenic, which would as effectually exterminate rats. Witness sold her three or four ounces of white arsenic, and told her to mix it with corn meal in saucers, and place the sauceis within the reach of the vermin. He cautioned her to be very careful, as the arsenic was a deadly poison. Witness gave her the arsenhe in a package labeled “poison,” and on which was the caricature of a skull and cross-bones, and wrote plainly across the package the word “ arsenic.” Defendant did not tell witness that any one sent her for the poison, and witness entered her name on the poison booTc as ihe person to whom the poison was sold.</p> <p>Johnny Johnson was the next witness for the State. He testified that he resided in San Antonio, Texas, was eighteen years old, and in June, 1885, was employed at the “ White Elephant.” He was acquainted with, but was not related to, the defendant. Alfred Owens, the step-father of the defendant, died in San Antonio on Monday, June 22,18S5. Witness saw the defendant on Sunday morning; and on Saturday night preceding the death of Owens, witness saw the defendant at the colored skating rink, and escorted her home about B o’clock on that night. Witness could not recall all that was said by himself and defendant on the way to the defendant’s home from the skating rink. Defendant, however, said that her step-father, the deceased, habitually mistreated her, refusing to permit her to go out, and that she had determined to poison him with rat poison. Witness advised her not to talk in that manner, as she certainly did not mean what she said. Defendant replied: “You don’t believe me, but you will see, and if you don’t quit going with those other girls I will fix you too.” On the second Saturday prior to the Saturday night on which this conversation took place, the defendant talked to witness in a like strain about the deceased. She stated in plain terms that she' was going to kill her step-father, “fix” the witness, and kill herself. Witness saw and talked with the defendant a short while between 9 and 10 o’clock on the morning of June 22, 1885. She then had two prescriptions in her hand, and said that she was going after medicine for her step-father, who was sick with the cholera. This was at the “White Elephant.” She left and shortly returned, when witness asked her what was the matter with her step-father. She replied: “Idid not poison him.” She left, and returned later, when she said that her step-father was dead, and asked witness for a dollar to buy shoes to wear to the funeral. Witness, not having the money •then, told her he would bring it to her that night. He went to her 'house that night, but did not see her. Witness attached no importance to the defendant’s threats to kill her step-father with “ rough on rats.” Defendant, when her home was reached on Saturday-night preceding the death of her step-father, said that she did not want to enter the house, as she was afraid the deceased would whip ■her. On the first day of the proceedings in the justice’s court, and ¡before the witness had testified before that tribunal, be asked the defendant if she did not kill her step-father. She replied: “I don’t give a d—n if I did.” The justice’s court-room was then crowded.</p> <p>Cross-examined, the witness stated that the defendant first threatened, in his presence, the use of “ rough on rats,” near the colored church, and about a week before the death of Owens. Witness could not say whether it was on her first or second call at the “ White Elephant,” on the fatal Monday, that she volunteered the statement that she did not poison the deceased. It was on the first day of the proceedings in the justice’s court that defendant, in answer to witness’s question if she did not kill her step-father, answered: “I don’t give a d—n if I did.” Defendant testified before that tribunal on that day.</p> <p>■H. Luhting, druggist, testified for the State that he filled the two prescriptions in evidence which w7ere signed by Doctor Lowery. Ho arsenic or other poison entered into the compound of either.</p> <p>'Eliza Johnson, the next witness for the State, testified that she and the defendant w7ere sisters, and were step-daughters of the deceased, Alfred Owens. The defendant, witness, her sister Charlotte, -her mother and the deceased were at home together on the night of Sunday, being the night preceding the death of Owens. Defendant and his wife, who went to the -springs on that evening, got back about sundown. Some time afterwards deceased’s wife went to 4)ed, and deceased went to visit the witness’s Aunt Lilly. Defendant then, in the presence of witness, took some meat, and with a spoon spread a white substance over it, pressing the white substance into it with the spoon. Defendant gave witness a small piece of meat 'before witness went to bed, telling witness, in reply to her inquiry, that the white, foaming substance on the meat was produced by the ¡fat. Deceased ate of the meat at breakfast on the following (Monday) morning, and went off to his work. He afterwards returned -home. After deceased and his wife went to the springs,-and while they were gone, defendant left the house, saying that she was going to get a watermelon. She came back empty-handed so far as the witness knew, and said that she failed to get a melon. Witness saw her put the white substance on the meat, but knew nothing about where or how she procured it. Witness was sick on the morning after she ate of the meat. She vomited a great deal and had cramps in the stomach. She heard the deceased say that he was sick, but did not know how he was affected.</p> <p>Cross-examined, the witness stated that she was in bed and did not know when the deceased came back from her Aunt Lilly’s on the night before his death. The substance on the meat tasted sweet to the witness. Witness slept all night after eating the meat, which was but a very small piece, and she was not sick until next morning. The piece eaten by the witness was a fragment of the meat which had the white substance on it. Deceased died on the day after the witness ate the meat. The meat was put in a round plate similar to the plate in evidence.</p> <p>Annie Owens, the wife of the deceased and the mother of the defendant, testified for the State that she and her husband went to the San Pedro springs on the evening before the death of the deceased, and returned home shortly after dark, or about 8 o’clock. She left defendant and her children at the house. Very soon after her return, the witness ate a small piece of meat and some roasting ears, and went to sleep. She did not know when the deceased, who on his return from the springs went to the house of his brother, near by, came back. The witness cooked the meat on Sunday, and she, deceased, defendant and the remaining two children ate of it at dinner on that day. When she started to the springs, after dinner, witness put the remnant of the meat in the stove for the deceased’s supper. On her return from the springs, and after eating a small piece of the meat, the witness put the remainder on a plate on the table so that the deceased, if hungry, could find it on his return. When the deceased got up the next morning he said that he felt unwell and would not go to his place of work if he could get his brother to go in his stead. His brother could not go, and the deceased went. He returned after about one hour, complaining of feeling very unwell. He vomited before he got into the house. Witness then sent for Doctor Lowery, who prescribed for deceased. She then sent defendant to Mrs. Haneisen for the money to pay for the medicine, and then sent her father-in-law, Columbus Christopher, to get the prescriptions filled. Deceased, though vomiting and purging violently, did not complain of severe pains before the doctor arrived. He went to the water-closet in the yard before the doctor’s arrival, where he was seized with vomiting and purging, and was assisted into the house by his mother and the witness. The medicine prescribed for the deceased, of which he took but one dose, was a liquid. The doctor prescribed powders for the girl Eliza, who was also sick. But little meat was left on the bone from dinner, and it was placed by witness on the table accessible to deceased for his sapper, but she was asleep when deceased returned from his brother’s, and did not see him eat.of it.</p> <p>The defendant, who was the witness’s first child, was born about, five years after emancipation. The witness had reproached the deceased about his relations with another woman. Witness had heard of his improper relations with the woman, and had been told that he had a child by her, but she had never seen the deceased in bed with the woman. Witness could not be positive whether it was Columbus Christopher or the defendant who took the prescriptions to the drug store. Deceased said that the meat tasted like it had peppermint on it,— that something was the matter with it, and to throw it away. Witness did so, and saw her dog eat it. She after-wards saw vomit near the gate, but did not see the dog throw it up. Defendant did not come home on the Saturday night preceding the death of Owens until between 2 and 3 o’clock. About 1 o’clock on that night deceased went to the place where witness had put the defendant at work, to look for her, and found that she had not been at work for a week. When she got into the house on Saturday night, or more properly Sunday morning, witness told her that she intended to whip her soundly on Monday. Witness identified the plate, dish, cup and saucer, in evidence.</p> <p>Henry Krampkan was the next witness for the State. He testified that he was a deputy sheriff of Bexar county, Texas, in June, 1885. Witness was present at the post-mortem examination of the body of Alfred Owens, and saw the stomach taken from the body. The stomach was placed in a glass jar, and then, by witness and Krawitz, was taken to Kalteyer’s drug store, and by the witness in person was placed in the hands of George Kalteyer, in exactly the same condition in which it was taken from Owens’s body. The plate, dish, cup and saucer in evidence were found in Owens’s house, and were taken to Kalteyer on the day following the delivery to Kalteyer of the stomach. The defendant told witness that the package containing the residue of the poison could be obtained from the privy, if it had not sunk. Search failed to discover it. The coroner’s inquest was held on 22d, 23d, 24th and 25th days of June, 1885. Johnny Johnson was a witness at the inquest. Defendant was not arrested until after Johnson had testified before the coroner’s inquest. It was the impression of the witness that defendant was arrested on June 24th, after all the witnesses had testified. Defendant went to the house of the witness’s mother on the night of the first day of the inquest, saying that she was afraid to go elsewhere. She went but was not taken to the inquest on the 23d day of June.</p> <p>Matilda Miller testified, for the State, that she saw the defendant at her (witness’s) house on Sunday evening before Owens’s death. She had a parcel marked “arsenic” in her hand, and said that she was going to use it to kill rats. She came to witness’s house again on the next morning, said that she wanted to occupy the water-closet a few minutes, and went to it. She also told the witness that deceased and the girl Eliza were then very sick with the cholera morbus. Witness saw nothing of the package marked “arsenic” on that morning, either in the hands of the defendant or in the water-closet. About 3 o’clock on the same day, defendant told witness that Owens was dead, and in the same connection, without question or suggestion from witness, volunteered the statement that she did not poison him. At the same time she said that she got the poison for a Mexican woman who had gone to the country. Witness asked her who the Mexican woman was. She said that she did not know, but could prove her statement by two white children. Julia Douglass was at witness’s house when defendant came there with the arsenic on Sunday evening.</p> <p>Cross-examined, the witness declared that she could read print, and read the word “ arsenic ” on the parcel brought to her house by defendant on Sunday evening. Being tested as to her ability to read print, witness failed to read a word on the title page of a volumn of the Court of Appeals Reports.</p> <p>Julia Douglass, the sister of the witness Matilda Miller, corroborated the latter’s testimony in every particular, and added that to questions as to the particulars of Owens’s death, propounded by witness on Monday evening, defendant said: “You bother me; don’t ask so many questions.”</p> <p>Philip Monier testified, for the State, that his and Owens’s yards joined. A cat and two of witness’s chickens died and swelled up, about the time Owens died. The cat went crazy before death. ETo post-moriem examination of either the cat or chickens was made.</p> <p>Mary Jane Meyer testified, for the State, that she met the defendant about 2 o’clock on the day of Owens’s death. Without question or suggestion, defendant said: “ I did not poison my father, for I thought too much of him.” She had not then been accused, so far as witness knew. Matilda Miller remarked to witness, in defendant’s presence, that she saw defendant with poison on the day before. The defendant replied that she procured that poison for a Mexican woman, which fact she could prove by two white children. The State closed.</p> <p>Columbus Christopher, the first witness for the defense, testified that he took the prescriptions to the drug store and had them filled for the deceased, just before his death. Witness got the prescriptions from the defendant at the corner of Houston and Flores streets. Defendant did not go to the drug store.</p> <p>Doctor Jialteyer, for the defense, testified that arsenic was a white powder with no taste but a faint sweet metallic flavor. Arsenic spread upon meat would not dissolve and become absorbed ; it would not foam or bubble, but would cover the meat like so much sand.</p> <p>Mary Christopher testified, for the defense, that the deceased was her son. About one hour before his death, witness arrived at his house, having been sent for by his wife, Annie Owens. Annie told witness that Alfred was very sick and was in the water-closet, from where she was unable to get him back into the house. Witness went to the closet, helped deceased to his door, where Annie joined her and helped her get him into the house and to bed. The doctor was then sent for, and witness’s husband dispatched for the medicine, After Alfred’s death Sarah Miller said to defendant: “You poi-</p> <p>soned Alfred 1 ” Defendant threw up her hands and replied: “ Don’t bother me; I got the poison for a Mexican woman.” Witness asked her who the Mexican woman was. She said: “She has gone to the ranche. You ask me too many questions; don’t bother me.” Deceased and his wife did not get along well. They frequently quarreled.' Deceased often told witness that he could not get along with Annie and would have to quit her. Deceased treated defendant well, and got along well with her, but often said that she was an incorrigible liar.</p> <p>Annie Owens, testifying for the defense, said that when the deceased complained of the meat she smelled it, but could detect no odor. Deceased said that it tasted of peppermint, but that it may have been traversed by a centipede. Witness did not hire Uncle Joe Muncey to make her a voudoo bag, nor did she ever attempt to bribe him to voudoo any one.</p> <p>Charlotte Hightower testified that she had a child by deceased. She asked Doctor Lowery if Alfred had been “ voudooed.”</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. J. C. Russell. The conviction was for the burglary of the store-house of Ludovico Hoglia, in Webb county, Texas, on the 27th day of September, 1885. The penalty assessed against the appellant was a term of two years in the penitentiary. The transcript brings up no statement of the case.

Tried below before the Hon. D. H. Scott. The indictment charged the appellant and Arch Saddler jointly with the theft of a gun from the possession of F. W. Beeves, who was holding the same for W. A. Beeves, the owner; the gun being of the value of $25. The theft occurred in Bed Biver county, Texas, on the 27th day of October, 1885.

Tried below before the Hon. E. Maltbie. The conviction was for the felonious theft of hogs, the property of W. H. Bledsoe, in Grayson county, Texas, on the 25th day of March, 1885. A term of two years in the penitentiary was the punishment awarded the appellant.

Tried below before the Hon. D. H. Scott. At his separate trial upon the same indictment which charged Jesse Jackson, this appellant was convicted of the theft of a gun, of value exceeding $20, the property of W. A. Reeves, from the possession of F. W. Reeves, in Red River county, Texas, on the 27th day of October, 1885. The penalty assessed against the appellant was a term of two years in the penitentiary.

Tried below before the Hon. R. Maltbie. The conviction in this case is founded upon an indictment which charged the appellant with the burglary of the house of Henry McLure in the day-time, and the theft therefrom of the personal property of the said McLure of the value of $50. The venue was laid in Grayson county, Texas, and the offense was alleged to have been committed on the 27th day of January, 1885. A term of two years in the penitentiary was the penalty imposed.

Tried below before the Hon. George D. Heal, County Judge. The conviction was for illegally marking five hogs, of the aggregate value of $10, the property of Burke Haynes, without the consent of the said Haynes, and with intent to defraud him, the said Haynes. The offense was alleged to have been committed in Grimes county, Texas, on the loth day of March, 1885.

Habeas Corpus on original application from Galveston County. The case is fully disclosed in the agreed statement of facts set out below, and in the opinion of the court.

Tried below before the Hon. Gustav Cook. The conviction in this case was for the embezzlement of certain articles of clothing, of an aggregate value exceeding $20, the property of Jacob Bernheim and Hathan Bed lick, copartners, composing the mercantile firm of S. Jacobs, Bernheim & Co. The venue was laid in Galveston county, Texas, and the offense was alleged to have •been committed on the 22d day of June, 1884.

Tried below before the Hon. George McCormick. ■ The conviction in this case was for the theft of two horses, the property of W. A. Clark, in Wilson county, Texas, on the 1st day of July, 1884. The penalty assessed against the appellant was a term of five years in the penitentiary. W. A. Clark was the first witness for the State. He testified that he lived in Gonzales county, Texas, in 1884. During the month of February of that year two mares of his disappeared from the range.

Tried below before the Hon. E. Maltbie. The conviction in this case was for swindling J. W. Tong, and the punishment assessed by the jury was a term of seven years in the penitentiary.

Habeas Corpus on appeal from the District Court of Johnson. Tried below before the Hon. J. M. Hall. The applicant in this case was committed to the custody of the sheriff of Johnson county, Texas, without bail, by a mittimus issued on the 2d day of January, 1886, by S. H. Brown, justice of the peace of precinct Ho. 1 of Somervell county, Texas, there being no safe jail in the said county.

Tried below before the Hon. W. E. Collard. The indictment in this case charged the appellant with the murder of Buck Scales, in Milam county, Texas, on the 27th day of February, 1885. His trial resulted in his conviction for manslaughter, and his punishment was assessed at a term of two years in the penitentiary. Mrs. Miranda Scales was the first witness for the State.

Error from the District Court of Lavaca. Tried below before the Hou. E. Lewis. The. writ of error in this case was prosecuted from a judgment final forfeiting the appearance bond of C. Middleton, bailed under a charge of theft. The amount of the bond and judgment was $400.

Tried below before the Hon. A. W. Moursund. The opinion sets out the charging part of the indictment under which the appellant was convicted of an assault with intent to rape Willie Ogle, a female, in San Saba county, Texas, on the 10th day of April, 1885, and for which he was awarded a term of two years in the penitentiary.

Tried below before the Hon. T. L. Hugent. The conviction in this case was for the rape of Ida Turk, in Cory-ell county, Texas, on the 30th day of May, 1885, by means of force and threats. The penalty assessed against the appellant was a life term in the penitentiary. Miss Ida Turk was the first witness for the State. She testified at great length, her evidence covering twenty-three pages of the transcript.

Tried below before W. E. Goodrich, Esq., Special Judge. The indictment in this case charged the appellant and one Joe Williams, jointly, with the theft of a beef-steer, the property of William Gay, in Guadalupe county, Texas, on the 21st day of April, 1877. The appellant was brought to trial alone, at the November term, 1885, of the district court, and was convicted, his punishment being assessed at a term of three years in the penitentiary.

Tried below before the Hon. Benton Randolph. The indictment charged the appellant with an assault with intent to murder one F. R. Stringer, in Grimes county, Texas, on the 10th day of December, 1881. He was convicted of an aggravated assault, and the punishment assessed against him was a fine of $250.

Tried below before the Hon. T. L. Nugent. The conviction in this case was had upon an indictment which charged the appellant and four others, jointly, -with the theft of five head of cattle, the property of Mat Hammons, in Erath county, Texas, on the 10th day of April, 1885. A term of two years in the penitentiary was the penalty assessed. The record brings up no authorized statement of facts.

Tried below before the Hon. George McCormick. The conviction was for the theft of a horse, the property of Howe Little, in Guadalupe county, Texas, on the 13th day of August, 1885. The penalty awarded the appellant was a term of five years in the penitentiary. The opinion sufficiently indicates the purport of the inculpatory evidence. The defendant introduced no evidence. The motion for new trial raised- the questions discussed in the opinion.

Tried below before the Hon. H. C. Pleasants. The appellant was convicted under an indictment which charged him with the theft of a horse, the property of one Tom Holt, which, said horse was taken from the possession of John Anders, who held the said horse for the said Holt, in De Witt county, Texas, on the 24th day of September, 1884. The penalty assessed was a term of five years in the penitentiary.

Tried below before the Hon. J. I. Perkins. The conviction was for perjury in falsely swearing to the teacher’s affidavit upon a check or voucher upon the county school fund. The penalty awarded was a term of five years in the penitentiary. The substance of the testimony upon which the conviction was had is sufficiently indicated in the opinion. The money paid to the defendant on the check was subsequently refunded by him to the county judge.

Tried below before the Hon. H. C. Pleasants. The conviction in this case was for the theft of a horse, the property of William Blackwell, in De Witt county, Texas, on the 13th day of September, 1884. The penalty assessed was a term of five years in the penitentiary. W. A. Blackwell was the first witness for the State.

Tried below before the Hon. A. S. Walker. The indictment, in three counts, charged the appellant and A. Eisner jointly, first with wilfully taking into their possession, driving, using and removing from its accustomed range a certain horse, the property of Phil. P. Cage, T. E. Cage and J. J. Cage, composing the firm of Phil.

Habeas Corpus on appeal from the District Court of Lavaca. • Tried below before the Hon. George McCormick. By indictment filed on the 12th day of February, 1886, the relator was charged with the murder of one J. A. Campion, in Lavaca county, Texas, on the 18th day of October, 1885. On the same day that the indictment was filed the relator sued out a writ of habeas corpus, upon the hearing of which bail was refused, and the relator was remanded to the custody of the sheriff.

Tried below before the Hon. T. L. Rugent. The indictment in this case charged the appellant with the murder of R. R. Hamilton, in Erath county, Texas, on- the 18th clay of December, 1878. He was brought to trial at the April term, 1885, of the district court of Erath county, and was found guilty of murder of the first degree, and was awarded a life term in the penitentiary as punishment. The first witness for the State was James D. Hamilton, the son of the deceased.

Tried below before the Hon. F. E. Finer. The conviction in this case was for the robbery of K. Fortman, in Cooke county, Texas, on the 12th day of January, 1885. A term of nine years in the penitentiary was the penalty assessed against the appellant. The opinion of the court discloses the history of the case. The transcript brings up no statement of facts.

Tried below before the Hon. J. I. Perkins. The indictment charged the appellant, jointly with John Kennedy and G. W. Miller, with the murder of George W. Taylor, in Cherokee county, Texas, on the 15th day of March, 1884. The appellant, being alone upon trial, was convicted of murder in the first degree, and his punishment was assessed at a life term in the penitentiary. F. P. O’Brian was the first witnéss for the State.

Tried below before the Hon. 1. B. McFarland. The indictment in this case charged the appellant with conspiring with one Ben. Hunt and one Charles Withers to commit the crime of burglary in the night-time by forcibly entering the store-house of J. T. Beeves & Bro., in said Burleson county, Texas, with the intent to steal therefrom. The conspiracy is charged to have been entered into on ■' the 13th day of November, 1885.

<p>Appeal from the County Court of Brazoria. Tried below before the Hon. H. Masterson, County Judge.</p>

District Court of Kaufman. Tried below before the Hon. Anson Eainey. The conviction was for the burglary by force, with intent to commit theft, of the mill house of H. J. Snow and Frank Pude, in Kaufman county, Texas, on the 4th day of March, 1885. A term of two years in the penitentiary was the penalty assessed against the appellant. Dick Mathews and Alf Gantt were joined in the indictment, but appellant was alone upon trial. Frank Pude was the first witness for the State.

Tried below before the Hon. E. Maltbie. The indictment charged the appellant with the murder of Jack Goodwin in Grayson county, Texas, on the 27th day of August, 1885. His trial resulted in his conviction of murder in the first degree, and his punishment was assessed at a life term in the penitentiary. Albert By waters was the first witness for the State.

Tried below before the Hon. E. E. Beckham. The indictment in this case charged the appellant with the murder of one Frank Boldin, in Tarrant county, Texas, on the 19th day of August, 1885. His trial resulted in his conviction of murder of the first degree, his punishment being affixed at a life term in the penitentiary. Mrs. W. H. Eix was the first witness for the State.

Tried below before the Hon. E. Maltbie. The conviction in this case was for the robbery of E. H. Pierce, in Grayson county, Texas, on the 20th clay of October, 1885. The penalty assessed by the jury was a term of ten years in the penitentiary. E. H. Pierce was the first witness for the State. He testified that be was a farmer, and lived near Howe in Grayson county, Texas. He came to Texas from Tennessee over four years ago.

Tried below before the Hon. E. Maltbie. This is the companion case to that of Bond v. The State, ante, page 421. As in that case, the conviction was for the robbery of E. H. Pierce, in Grayson county, Texas, on the 20th day of October, 1885. It was based upon the testimony of the same witnesses who testified in Bond’s case, to substantially the same facts. The penalty assessed against the appellant was a term of ten years in the penitentiary.

<p>Appeal from, the County Court of Gonzales. Tried below before the Hon. John S. Conway, County Judge.</p> <p>This conviction' was had under an information charging the appellant with betting at a certain banking game exhibited for the purpose of gaming. A fine of $20 was assessed against the appellant.</p> <p>The substance of the testimony adduced upon the trial was that the defendant was the proprietor of a certain game of monte, exhibited and dealt in the town of Gonzales. That, on the day alleged in the information, one Sam Lockridge bet money upon a certain card thrown out by the defendant as the exhibitor of the bank or dealer, and that the defendant bet the said Lockridge that he had made a bad bet. It was testified that, under the rules of monte bank betting, the dealer or owner of the banking game cannot or does not bet at bis own banking game; that he bets as banker against the bettors at the banking game; that, if the dealer or owner of the banking game bets with the bettor, as in this case, it is the banking game enlarging the bet to that amount on the part of the bank against the bettor, and that the exhibitor as banker does not bet against his own money. This was the same act for which the defendant had pleaded guilty of exhibiting a banking game.</p> <p>The motion for new trial raised the question discussed in the opinion.</p>

<p>Self-Defense — Charge of the Court.—See the opinion in extenso for a charge of the court upon self-defense, held insufficient because it failed to instruct the jury clearly that the existence of the reasonable apprehension of actual or apparent danger was to be considered from the standpoint of the defendant at the time of the homicide, and not from that of the jury in the light of the facts proved. See the opinion on the question.</p>

<p>Appeal from the District Court of Bell. Tried below before the Hon. W. A. Blackburn.</p> <p>The conviction in this case was for the nocturnal burglary of the store-house of Blair & Wear, in Bell county, Texas, on December 10, 1885. A term of two years in the penitentiary was the penalty assessed against the appellant.</p> <p>Hugh Wear was the first witness for the State. He testified that he was the junior member of the firm of Blair & Wear, family grocers, Belton, Bell county, Texas. The defendant was frequently employed to do chores about the store of Blair & Wear, and when so engaged passed, at will, in and out of the store. Late on the evening of December 10, 1885, witness ordered the defendant to close the back door of the store in the usual manner, by adjusting an iron pin. Defendant closed the door, reported that he had secured it, and left. Witness found, before he left, that the door was not secured, and that the pin was but loosely inserted. Witness fastened the door with the pin and closed the store for the night. He found the back door of his store open on the next morning. The iron pin had been bent and forced out of the hole into which it fastened. Witness, upon examination of his goods, missed some candy and a small pistol which was usually kept in the show-case. When the defendant came to the store on that morning, witness charged him with the burglary. He at first denied that he had anything to do with the burglary. Witness told him that he, witness, knew all about it; that he had the defendant; that the defendant was seen in the store, and he might as well own up and tell all about it. Defendant then left the store and in a short time returned writh the pistol and delivered it to the witness. The witness told the defendant that he had been seen in the store, but, as a fact, witness knew nothing of his having been seen in the store. Ho one had the consent of the witness to enter his store on that night or to take the pistol or candy.</p> <p>John Blair testified, for the State, that he was the senior member of the firm of Blair & Wear, and usually slept in the store at night. He was not in Belton on the night of the burglary, and gave no one consent to enter the store.</p> <p>Lon Hudson testified, for the State, that about 4 o’clock on the morning of December 11,1885, he passed the store of Blair & Wear and noticed that a light was burning inside, and that the back door was open. He did not look into the store to see who was in there. The State closed.</p> <p>Miles Parker, a freedman of color, and the father of the defendant, testified, for the defense, that the defendant was born on the 27th day of October, 1873, and was therefore past twelve, but under thirteen, years of age. He was born on Heed’s place, about two and a half miles west of Belton. Witness was present at defendant’s birth, and knew that the defendant would not be thirteen years old until his next birthday. Witness had endeavored to teach the defendant the right. He had sent him to school but stopped him because he learned nothing. Witness did not think him any more intelligent than ordinary boys of his age. Defendant came home before dark on the night of December 10, 1885, and, with the exception of about thirty minutes during which he was gone to escort his grandmother home, he was at home until breakfast next morning. Witness had a conversation with Mr. Wear about the burglary on the morning after it occurred, but could not recollect exactly what he said to Mr. Wear. He, however, did not tell Mr. Wear that defendant was fourteen, nor that he was thirteen years old. He told Mr. Wear that the defendant was in his thirteenth year, which was the truth. Witness had no register of the defendant’s birth, and located the time of his birth purely from memory. He entered the birth of the defendant (by memory) in a testament when the defendant was six years old. That testament was lost years ago. The witness did not sleep with the defendant on the night of the burglary. He merely supposed that the defendant was at home throughout the night, because he usually stayed at home all night. Witness was a preacher.</p> <p>The State recalled Hugh Wear in rebuttal. Mr. Wear testified that Miles Parker was in his store on the morning after the burglary, and told witness, in answer to the direct question as to defendant’s age, either that he was thirteen or fourteen years old. It was the witness’s recollection that he said fourteen.</p> <p>The State then made profert of the defendant, and introduced Messrs. Wear, Blair, Hudson and Karnes, who testified that they knew the defendant but did not know his age. They knew him to be a boy of average intelligence, and that he had sense enough to know right from wrong, and to know that it was wrong to break into a house at night and steal.</p> <p>The motion for new trial raised the question discussed in the opinion.</p>

<p>1. Practice—Evidence.—It is a statutory and well settled rule of evidence in this State that “ when part of an act, declaration, conversation or writing is given in evidence by one party, the whole may be inquired into by the other.” And it is further enacted that, “when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.” (Code Crim. Proc., art. 751.) See the opinion for evidence properly admitted under this rule.</p> <p>3. Same.—Article 3353 of the Revised Statutes provides that “ copies of the records of all public officers and courts of this State, certified under the hand and seal (if there be one) of the lawful possessor of such records, shall be admitted as evidence in all cases where the records themselves would be admissible." Held, that the said article is cumulative in effect and not restrictive, and therefore does not affect the rule or right with regard to the admissibility of the originals as evidence. An original writ of attachment is competent evidence of its issuance and existence.</p> <p>3. Same.— The doctrine obtains in this State that if a process, fair and regular on its face, is placed in the hands of an officer for service, he will be protected in serving it, although he may know of the existence, back of it, of facts which render the process null and void. The trial court, therefore, committed no error in refusing to permit the defendant, after the State had introduced the original writ of attachment in evidence, to introduce the affidavit and bond upon which the writ was founded, to show that the said affidavit and bond were defective, nor in refusing, at a later stage of the trial, to admit evidence to show that the officer knew of the defects in the bond and affidavit.</p> <p>A Same.—The State proved, on a trial for murder, that when the deceased, in his official capacity as constable, sought admission to the house of the defendant, the defendant met him with a gun in his hand, and, in reply to the deceased’s remark: “ Old man, you look like you were on the war-path,” the defendant replied, in substance, that he had once been whipped and beaten like a dog and driven from home, and, therefore, wanted to know the business of every man who came to his house. In explanation of the fact thus proved by the State, the defendant proposed to prove by his wife that some four months before the homicide, one M. and his wife came to defendant’s house and called witness out, and that M. covered the defendant with two six-shooters and forced him to assume and retain a kneeling posture while Mrs. M. chastised him with a quirt; and that in consequence of that, and of threats of further violence, the defendant abandoned his home and moved off with his family. Held, that the proposed evidence was properly excluded in view of the proof that the deceased announced the legal and official character of his presence, and that the homicide was committed more than an hour afterwards, and several miles distant from the defendant’s house.</p> <p>5. Same.— That a witness did not hear the whole of a conversation, and was therefore unable to repeat it either in words or substance, is no reason for refusing to permit him to testify to such words as he did hear. See the opinion in illustration.</p> <p>6. Same.— Both the English and American systems of practice require that when a manacled prisoner is brought to the bar of the court for trial, his manacles shall be removed, except in extreme cases when the safe custody of the prisoner and the peace of the tribunal imperatively demand the retention of the manacles. The defendant in this case was brought into court chained in a gang with several other prisoners. As soon as he was seated within the bar the court ordered the removal of his shackles. His counsel saved an exception to the action of the sheriff as illegal and calculated to prejudice the defendant before the jury. The trial judge explained the exception as follows: “ The sheriff deemed it unsafe to deal with the number of prisoners he had to bring out, without chaining them together, and the chains were removed by my order as soon as I saw they were in the court room.” Held, that the sheriff was authorized to exercise precaution commensurate with the safe custody of bis prisoners, and the action of the court in the matter was proper.</p> <p>7. Same.— Appellant and J. E. K. were impleaded in the same indictment. J. E. B. was placed upon trial as soon as the jury in this case retired to consider of their verdict. Pending verdict in this case the court sent to the jury room for the indictment in order to arraign J. E. B. upon the same. The purpose for which the indictment was withdrawn was not communicated to the jury in this case. Held, that the proceeding was without error, or prejudice to the defendant.</p> <p>8. Same.— Ex parte writings, attached to the transcript as addenda or explanatory notes, become no part of the record, and will, as in this case, be stricken out, and not considered.</p> <p>9. Murder — Fact Case.— See the statement of the case for evidence held sufficient to support a conviction for murder in the second degree.</p>

<p>Appeal from the District Court of Cooke. Tried below before the Hon. F. E. Finer.</p> <p>Upon the same indictment which charged him jointly with his father (ante, page 455) with the murder of J. D. L. Johnson, in Cooke county, Texas, on the 14th day of February, 1885, the appellant was convicted of murder in the second degree, and was awarded a term of twenty years in the penitentiary.</p> <p>The witnesses for the State, upon the trial of J. H. Rainey, with one exception, testified against this defendant, their statements in the two cases being substantially the same. In his testimony in the trial of the former case, the witness Floyd did not state, as he did upon this trial, that this defendant fired his second shot through the head of deceased, just as the deceased fell to the ground from the effects of the first shot. Mr. Ward, who testified upon the trial of J. H. Rainey, ivas not examined upon the trial of this defendant. Mrs. H. Ward and Sam McGee, in addition to thé witnesses who testified for the State in J. H. Rainey’s case, testified in this case.</p> <p>Mrs. Ward testified that, in February, 1885, she lived on Stewart’s place in Sadler’s Bend, Cooke county, Texas, which place was near the public road leading to the Jimtown crossing of the Red river. On the evening that J. D. L. Johnson was killed, witness was at the wells, near the Jimtown public road, watering some cows. While witness was at the wells, two men passed her traveling north over the public road. Witness did not know the Raineys personally. One of those men rode a roan horse. The other was riding in a two-horse wagon which contained some millet straw. The man in the wagon was the older of the two men, and wore considerable beard over his face. He had a shot-gun. About thirty minutes after the wagon and the two men passed, three men on horseback, one of whom was John Stewart, passed the wrells rapidly traveling in the same direction the wagon had gone. As the first two men passed the wells, witness heard the older man in the wagón say to the younger man on horseback: “ Let us hurry and get across Red river, and maybe they won’t bother us.” The younger man replied: “They will not take you while I live, and I will fight till I die.” The witness could not identify the defendant as either of the two parties alluded to.</p> <p>Sam. McGee testified, for the State, that he knew Serena Helson, the plaintiff in the attachment which the deceased was attempting to execute at the time he was killed. During the month of Hovera ber, 1884, the defendant came to the witness’s house, and stopped at the fence. He did not get off his horse. During the conversation that ensued, the witness asked the defendant if “ they ” were going to the Ration. He replied that he did not know; that he did not know what might turn up; but that if they did go, they were not going to pay that note,— the note upon which the attachment was based. He then directed witness to tell Mrs. Helson that the note was executed under duress, and that they were not going to pay it. He further told witness that if they did go to the Ration and J. D. L. Johnson ever made an attempt to attach any of their property, he would kill Johnson. Mrs. Helson was the witness’s step-grandmother, was seventy years old, and “she could not duress any one.”</p> <p>Cross-examined, the witness stated that he had no personal knowledge of the fact, if such was the fact, that his brother went to Rainey’s house, and compelled old man Rainey, at the muzzle of two six-shooters, to kneel down and submit to a whipping with a quirt at the hands of his wife. If witness’s brother made old man Rainey sign the note referred to, witness did not know it.</p> <p>The narrative of Elmer Rainey, the first witness for the defense, was given somewhat more in detail upon this than upon the trial of his father. He testified on this trial that when the deceased and Lowery rode up to J. H„ Rainey’s house, in Cooke county, on the evening of February 14, 1885, the defendant and J. H. Rainey, witness and Bill McDonald were at the crib, loading J. H. Rainey’s wagon with millet. Johnson and Lowery came to the house from the south. They rode up to the fence about forty yards from the crib, dismounted, hitched their horses, and jumped over the fence, when Johnson drew his pistol, and started towards the crib. J. H. Rainey then started to the house. Johnson and Lowery turned and started to the house. Defendant, witness and Bill McDonald then went through the yard and met Johnson and Lowery at the steps, some twelve or fifteen feet from the house. About that time J. H. Rainey appeared with his gun in his hand. Johnson said to J. H. Rainey: “Old man, you look like you were on the war-path.” J. H. Rainey replied: “ Mo farther than to protect myself; besides, I want to know a man’s business when he comes here. I have been whipped and beaten like a dog until I had to leave my home.” Johnson said: “I have no papers for you and Jim, but I have papers for Elmer. Is this him?” referring to witness. J. H. Rainey replied: “Yes, that is him; serve your papers on him.” Johnson then produced and read a warrant for the arrest of the witness for carrying a pistol. J. H. Rainey asked Johnson if he would be permitted to bail the witness. Johnson asked who he proposed to give as surety. J. H. Rainey replied that he would give Jim Wright. Johnson said that he would accept Wright. J. II. Rainey then asked Johnson if he had a blank bond with him. Johnson-sat down to fill out the bond while J. H. Rainey, defendant and witness went to the crib to finish loading the wagon with millet. Witness threw the millet out of the crib and J. II. Rainey and defendant loaded it into the wagon. Meanwhile Johnson came to a point near the crib and sat down. When the wagon tvas loaded, witness and Johnson went to thé house for witness to get his coat. At the house Johnson met Mrs. McDonald, and asked her what she was doing there, Mrs. McDonald replied that her husband had rented the place for the year, and that they were going to live there. Johnson said in reply to her: “You nor none of the Raineys shall live here, if I have to kill the last d—d one of you.” Witness got his overcoat and went out and mounted his horse, and all of the parties started off towards Jim Wright’s, J. H. Rainey going in front. Lowery and witness rode next, and defendant and Johnson brought up the rear. They traveled in that order until they reached the point where the roads forked. J. II. Rainey kept on the Jim-town road instead of taking the fork to Wright’s house. Johnson told Lowery to take witness on to Wright’s and let him give bond, and that he, Johnson, would be back presently, after riding a piece with defendant. Witness saw no more of them on that evening. The only papers served by Johnson on anybody on that evening were the papers he served on the witness.- Johnson stated distinctly that he had no other papers.</p> <p>Cross-examined, the witness stated that his brother, the defendant, did not stop at the forks of the road, but kept on down the Jimtown road. He did not tell Johnson or Lowery what to do with the witness. Witness was seventeen years old at that time, and lived with J. H. Rainey in the Chickasaw Mation. The defendant lived at the J. H. Eainey “ old place ” in Cooke county. Witness did not tell any of the party what Johnson said to Mrs. McDonald in the house. While in the house the witness got his six-shooter and placed it in the waist of his pants. Johnson did not see him get it, nor did the witness tell him. After waiting at the forks of the road for some time, Lowery wrote on a piece of paper: “I am gone to Marysville,” and went to Marysville. Bill McDonald had a bay horse and a black horse. He owned but the two. Defendant rode a roan horse.</p> <p>The defense next read in evidence the deposition of Mrs. M. J. McDaniel. The'transcript sets out the answers, but not the interrogatories. The answers read as follows:</p> <p>To the first interrogatory the witness answers: “My name is M.■ J. McDaniel. I am thirty years old. I live in the Chickasaw Nation, ‘ B. 1. T?</p> <p>2. “ I was residing on J. H. Eainey’s place, about two and a half miles northwest from Marysville. I resided there about one and a half months. I left on the loth of February, 1885.</p> <p>3. “ I saw J. H. and J. E. Eainey at the house on the place where I was living.</p> <p>4. “ I saw J. D. L. Johnson on the Eainey place on the 14th day of February, 1885. When I first saw him lie was coming across from Captain Twitty’s. Mr. Lowery was with him.</p> <p>5. “ They were riding towards the house. Mr. Johnson had a pistol. If Mr. Lowery had one I did not see it. Mr. Johnson was standing at the west yard gate with his pistol in his hand.</p> <p>6. “ They were riding when I first saw them.</p> <p>7. “ They dismounted and hitched their horses. They came up through the lot towards the crib and stables, and then turned toward the west yard gate.</p> <p>8. “ J. H., J. E. and Elmer Eainey and James Eainey’s wife and Bill McDaniel. They all met at the west yard gate. Mr. Eainey came into the house, picked his gun up from the bed, and ran out to the gate where they were standing. Mr. Johnson said: ‘Mr. Eainey, we never speak, but I see you are on the war-path.’ Mr. Eainey said: ‘I have been abused and beat like a dog, and run off from my home, and when any man comes to my place I would like to know his business.’ Mr. Johnson said: ‘Mr. Eainey, I have no papers for you, nor none for Jim Eainey. I have papers for Elmer Eainey.’ Mr. Eainey said: ‘ What is it for?’ Mr. Johnson said: ‘For carrying a. pistol.’ Mr. Johnson then asked: “Isn’t that Elmer?’ Mr. Eainey said: ‘Yes, and if you have papers for him, serve them; ’ and he servéd them. Mr. Eainey then asked him if Elmer could give bond, and Mr. Johnson asked him who he would give on his bond. Mr. J. H. Eainey said: ‘Mr. Jim Wright.’ Mr. Johnson told him that Wright was good. Mr. J. H. Eainey then asked him if he bad a blank bond, and told him to write one out. Mr. Johnson sat down on the steps and began to write one out, and all of the above named parties went out to the stable, and when Mr. Johnson got done he went out there too.</p> <p>9. “ The next I saw of Mr. Johnson was when he came to the house with Elmer, for Elmer to get his overcoat.</p> <p>• 10. “Mr. Johnson asked me what I was doing there. I told him my husband had rented Mr. Eainey’s place for the year. He said we had better leave; that he would kill every G—d d—d Eainey of the name, and every renter, before they should live on the place.</p> <p>11. “I told my sister, my husband and J. E. Eainey what Mr. Johnson said. I told them right straight.</p> <p>12. “ The first time I saw J. H. Eainey with a gun that day was when he brought it with him from the B. I. T. He brought it in the house and laid it on my bed. He came with a wagon and team after hay.</p> <p>13. “Mr. Johnson served no papers on any one except Elmer Eainey. He said that he had no papers for J. H. or J. E. Eainey.</p> <p>14. “ J. D. L. Johnson and Lowery left the farm with the three Eáineys between 2 and 3 o’clock.</p> <p>• 15. “I next saw them on Eed river between 3 and 4 o’clock; J. II. Eainey, J. E. Eainey, John Stewart, Mr. Floyd and Bill McDaniel.</p> <p>16. “My husband, Bill McDaniel, and two little children. I was afraid to stay at the Eainey place, as he, Johnson, had threatened our lives. When I first saw them, I was in about two hundred and fifty yards of them. I was in one hundred and fifty yards of them when the shooting commenced.</p> <p>17. “We left just as soon as we could saddle our horses. My husband and two little children. We left because Johnson had threatened our lives. We went down on the west side of Mr. J. H. Eainey’s farm in a path leading around the east side of the Crow farm and on to the Jimtown crossing.</p> <p>18. “We went a near road.</p> <p>19. “When I first saw them Mr. J. II. Eaineynvas driving pretty .fast, and Mr. J. D. L. Johnson and his party were running after Mr. Eainey as hard as they could go. Mr. Jim Eainey was behind'him .some ten or fifteen feet. . i</p> <p>20. “I was one hundred and fifty yards from them. Nobody was between me but Mr. Johnson and James Rainey, Floyd and Stewart. Mr. Johnson ran his horse around in front of Mr. Rainey’s horses, dismounted and caught Mr. Rainey’s horses by the bridle. Mr. Rainey jumped out on the right-hand side with his gun in his hand, and he and Mr. Johnson met about midway of the team, each advancing upon the other. Johnson had his gun in his hand. They took hold of each other’s guns. At this time the other parties dismounted behind the wagon. Mr. Stewart had a gun, but Mr. Floyd had none that I could see. While Mr. Johnson and J. H. Rainey were scuffling, Floyd ran up and caught hold of Mr. Johnson, and then ran back to Stewart. I then saw a pistol in Floyd’s hands. At this time Mr. Johnson’s gun was fired, it looked like, in Mr. Rainey’s face. This was the first shot fired. J. E. Rainey was then standing about ten feet behind Stewart and Floyd, and they were standing about ten feet south of the wagon. J. E. Rainey then, with his pistol in his hand, ran in between Stewart and Floyd. As he did this, Mr. Stewart raised his gun up to his shoulder as if he was going to shoot, and then let it down and raised it up the second time. As J. E. Rainey ran through, another gun was fired, but I don’t know who fired it. J. E. Rainey then ran up to where Johnson and J. H. Rainey were standing, and fired two shots at Johnson. At the second shot Johnson fell. Jim wheeled around instantly and shot twice at John Stewart. At the second shot witness saw Floyd staggering around with his hands up to his face. When Jim Rainey fired at Stewart, Stewart dropped his gun and ran, and then Stewart and Floyd got on their horses and ran. J. E. Rainey got on his horse and J. IT. Rainey into his wagon, and they started across Red river, J. E. Rainey a little in front. We,— myself, husband and children,— then went back home the way we came. I begged my husband to go back, for I was afraid to cross the river. My husband went down to rent us a house on Captain Twitty’s farm and stayed all night.</p> <p>21. “I am afraid to go [back to court?] for my life has been threatened by Bill Johnson, if I appeared as a witness any more, I am too poor to pay my expenses.</p> <p>Her</p> <p>“M. J. M McDaniel.”</p> <p>Mark.</p> <p>The answers to the cross-interrogatories read as follows:</p> <p>1. “I first saw Mr. Johnson and Lowery coming across from Captain Twitty’s about 3 or between 2 and 3 o’clock.</p> <p>2. “ J. H. Rainey, J. E. Rainey, Elmer Rainey and Bill.McDaniel. They were out at the crib and stables. J. H. and J. E. Eainey were at the barn.</p> <p>3. “ J. E. Eainey stopped at the west gate. J. H. Eainey came into the house and got his gun, and went back out there, where they were standing.</p> <p>4. “ J. H. Eainey came to the house just as soon as Johnson and Lowery came inside of the lot. He, J. H. Eainey, came in a fast walk and came in my house. He got his gun off the bed and then went to the west gate where they were standing.</p> <p>5. “I answer this in the above.</p> <p>6. “ Hot more than a half hour. They went out at the west gate. J. E. Eainey, J. II. Eainey, Mr. Lowery and Elmer Eainey all left together. -</p> <p>7. “We left just as soon as we could saddle our horses. I don’t know how long it was. I went to the river that evening. My husband, Bill McDaniel, and two little children went with me. I don’t know how long, but just as soon as we could ride it. I got back home the same evening. My husband and two children.</p> <p>8. “We saddled up our horses and went to the river. I rode to the river. We saddled two horses. We went around the west side of Mr. J. II. Eainey’s farm, and on the east side of Crow’s farm. I carried one child, and my husband the other.</p> <p>9. “I was in one hundred and fifty yards of where Johnson was killed. He was shot with a pistol. When I first saw Mr. J. H. Eainey and Mr. J. D. L. Johnson, J. E. Eainey, Mr. Stewart and Floyd, they and J. E. Eainey were going towards Mr. J. II. Eainey’s wagon. Mr. Johnson ran around in front of Mr. J. H. Eainey’s horses, dismounted and took hold of J. H. Eainey’s horses by the bridles. J. H. Eainey jumped out of his wagon on the right hand side, and met Johnson midways of the wagon, and both took hold of each other’s guns, and commenced scuffling with each other. Stewart and Floyd were some ten feet behind the wagon, and J. E. Eainey was standing ten feet behind them. Floyd ran up and caught hold of Mr. Johnson and ran back to where Stewart was standing, and I saw that he had a pistol in his hand. Then Mr. Johnson shot his gun off in Mr. J. H. Eainey’s face, or at least it looked so. Then J. E. Eainey, from behind, ran up, passing between Stewart and Floyd. Stewart threw his gun up to his shoulder, and presented it at Jim; took it down, and presented it the second time. Jim ran straight and shot-Johnson twice, and Johnson fell at the second shot. During the time there was another shot fired at the wagon. I do not know who did it. When Jim shot Johnson, he wheeled and shot at John Stewart twice, and in a few minutes John Stewart dropped his gun and run. Instantly I saw Floyd standing around with his hands to bis face. Mr. Stewart and Fioyd got on their horses and ran off towards Marysville. Jim Rainey got on his horse; his father got in the wagon, and they went across Red river, Jim Rainey in front.</p> <p>10. “ John Stewart, Floyd, J. E. Rainey, J. H. Rainey, Bill McDaniel and myself. Johnson and J. H. Rainey were next to the river; Floyd and Stewart south of them, and J. E. Rainey south of the whole party.</p> <p>11. “I saw J. D. L. Johnson at the time he was killed. I was due south of where the killing took place, about one hundred and fifty yards. I was on horseback at the time. Bill McDaniel was with me.</p> <p>12. “Just a few minutes. Me, my husband and two children went back home by the path leading around Crow’s farm. All the way back it was about three miles.</p> <p>13. “I got back home between sunset and dark. In going I traveled a pathway leading by Crow’s farm. I passed by no house. I saw no person in going.</p> <p>14. “ My husband and myself did not remain at home all day on the day of the killing. No sir, I did not first learn it on the next morning. I saw it done. I know I was away from my house the day of the killing.</p> <p>Her</p> <p>“M. J. M McDaniel.”</p> <p>Mark.</p> <p>To this deposition was attached the following affidavits:</p> <p>“The State of Texas, )</p> <p>County of CooTce. j</p> <p>“ I, A. M. Thomason, on oath say that I am personally acquainted with Mrs. M. J. McDaniel, the witness whose name is subscribed to the foregoing instrument of writing; that I know her to be the identical person whose name is subscribed to said instrument, and I know her to be, and so believe her, a credible person and worthy of belief. A. M. Thomason.”</p> <p>“ Subscribed and sworn to before me, this the 9th day of November, A. D. 1885. S. W. Bell ah,</p> <p>“ Notary Public for Cooke County, Texas.” “The State of Texas, )</p> <p>County of CooTce. j</p> <p>“We, Sam Bellah, and J. T. Whaley, notaries public for Cooke county, Texas, being the same officers before whom the above depositions and answers were taken of the witness Mrs. M. J. McDaniel, hereby certify that the person, A. M. Thomason, who has made the above affidavit as to the identity and credibility of Mrs. M. J. McDaniel is known to us, and is worthy of credit.</p> <p>“ Witness our hands and seals of office, this the 9th day of November, A. D. 1885.</p> <p>[seal.] “S. W. Bellah,</p> <p>[seal.] “J. T. Whaley,</p> <p>“ Notaries Public for Cooke County, Texas.”</p> <p>The witnesses Weir and Pattie, for the defense, and Ely and Gas-ton, for the State, in rebuttal, testified substantially as they testified on the trial of J. H. Bainey.</p> <p>Yance and Burns testified, for the defense, that they were within five or six hundred yards of the point where the killing occurred at the time it happened. Six shots, all from a pistol, were fired. Soon after the shooting defendant and J. H. Bainey, traveling fast, crossed the river into the Nation. The witnesses, a few minutes later, saw the dead body of Johnson on the sand beach.</p> <p>J. M. Wilson testified, for the defense, that he heard the witness Lowery testify on a former trial of this case. Lowery testified on that trial that the attachment read to J. H. Bainey by J. D. L. Johnson called on its face for a wagon and team, or a wagon and two horses, the property of J. H. Bainey. The defense closed.</p> <p>Houston Lee testified, for the State, in rebuttal, that he witnessed the homicide from a point near where it occurred. Johnson fell, the witness thought, at the second shot. Witness was in the Jim-town road, two hundred yards south of the parties, when the difficulty began, but rode to a point fifty yards nearer. Witness did not then know any of the parties. The man who shot Johnson afterwards shot at Stewart and Floyd, and made witness stop.</p> <p>Cross-examined, the witness stated that the man who proved to be Johnson took hold of Bainey’s horses. As he did so, Bainey covered him with his gun and ordered him to release the horses. At the same time Bainey reined his team square around and crossed a small creek. When they got across the creek, Johnson again got in front and caught the team, and J. H. Bainey jumped out of the wagon on the right-band side, and, with his gun leveled on Johnson, ran around the team. When Bainey jumped out of the wagon, Johnson was still holding the team, and witness heard somebody say: “ Turn them loose or I will kill you.” The man who did the shooting was the same man who made Stewart lay down his shotgun. Witness saw nothing of a man, woman and two children on horseback, just south of the place of killing at any time.</p> <p>Hr. Hughes testified, for the State, in rebuttal, that when the shooting occurred he was standing in the Jimtown road about two hundred yards south from the place where it occurred. He saw nothing of Bill or H. J. McDaniel at the time of the shooting. To have reached a point one hundred and fifty yards south of the difficulty, the. McDaniels, traveling towards the river, would have had to pass the witness in the road.</p> <p>Floyd and Stewart testified, in rebuttal, that they did not see Bill or M. J. McDaniel at the time of, or just before, or just after the shooting.</p> <p>Lowery, recalled for the State in rebuttal, testified that neither Johnson nor Elmer Rainey went to the house of J. H. Rainey front the barn. Elmer Rainey’s overcoat was not at the house, but was hanging on the yard fence.</p> <p>The fifth bill of exceptions, referred to in the fourth head-note of this report, reads as follows: “. . . Be it remembered that upon the trial of the above cause the State introduced the witness William Johnson, brother of. the deceased J. D. L. Johnson, in rebuttal, and asked him if he ever threatened the life of Mrs. William McDaniel, and he answered that he had not. The defendant, on cross-examination of the witness Johnson, asked him whether or not, at Marysville, about one month previous to this date, he did not state, in the presence of W. B. Johnson and A. M. Thomason and others, that it would be better for William McDaniel, the husband of the witness Mrs. McDaniel, to go to the penitentiary than testify in the Rainey cases again, for if he did so, he, Johnson, or William McDaniel, one, would have to die. Which question was objected to by the State as immaterial and irrelevant, because William McDaniel was not a witness in this cause; which objection was sustained by the court. The State’s counsel then withdrew their objection, and permitted the witness to answer. The court stated at the time that if he did answer, that his answer would be final] and he would not allow the defendant to contradict him. The question was asked by the defendant, and the witness answered that he did not make such statement. The State’s counsel then had said Johnson to repeat all that he said at that time and place. Defendant then offered to introduce W. B. Johnson, and show by him that said Johnson, brother of deceased, did state, at Marysville, about a month previous, that “ William McDaniel had better go to the penitentiary than testify in the Rainey cases again; for, if he did, he, Johnson, or the said William McDaniel would have to die.” The court would not permit the said William Johnson to answer. To all of which the defendant excepted,” etc.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

<p>Habeas Corpus — Bail — Evidence.— See the statement of the case for evidence upon a proceeding by habeas corpus for bail, under a charge of murder, held not to authorize the refusal of bail.</p>

<p>1. Habeas Corpus — Practice.—Under a proper construction of article 187 of the Code of Criminal Procedure, an accused who, prior to the return of indictment, has been awarded a hearing under the writ of habeas corpus, is, upon the return of indictment, entitled to a second writ of habeas corpus, and, notwithstanding the indictment, is entitled to bail if the facts in proof warrant bail. If, however, the original proceedings by habeas corpus were • had after the return of indictment, a second writ is not allowable, except in the special cases arising under articles 155 and 189 of the said Code. The said article 155 authorizes the award of such second writ when the removal or release of the accused on bail is rendered necessary by disease; and the said article 189 allows the second writ, where important testimony, impossible to have been produced upon the first hearing, is shown to have been newly discovered. The original writ in this instance having issued prior to the return of indictment, the subsequent writ, after indictment, was properly awarded.</p> <p>2. Same — Fact Case. — See the statement of the case for evidence adduced in a proceeding by habeas corpus for bail under an indictment for murder held to authorize the award of bail. Under the evidence, however, the sum of $7,000 is held to be excessive, and the bail is reduced to the sum of $3,500.</p>

<p>1. Practice — Pleading.— Pleas of Former Conviction and Former Acquittal are the only special pleas available to a defendant in a criminal cause under the Code of this State. (Code of Criminal Procedure, article 525.) The plea to the jurisdiction of the court and the plea of former jeopardy are special pleas available to the accused as a constitutional and' not a statutory right, and because they are fundamental, and beyond the power of the Legislature to deny. The trial court, therefore, did not err in striking out the defendant’s plea in abatement, alleging an agreement by defendant to aid State officers in detecting criminals, etc., nor in refusing to admit evidence in support of the same.</p> <p>2. Same.—Note that Willson, Judge, delivering the opinion of the court, calls in question the correctness of the rule laid down in the cases of Bowden v. The State, 1 Texas Ct. App., 137; Hardin v. The State, 12 Texas Ct. App., 186, and Harris v. The State, 15 Texas Ct. App., 629, to the effect that an agreement entered into by the State’s attorney and a party charged with crime, that the latter will not be prosecuted if he will turn State’s evidence against others charged with him, and that such agreement may be pleaded in bar of the prosecution against the party turning State’s evidence, and that if he perform his part of the agreement in good faith, his plea in bar of the prosecution will be sustained. Note the rule relied upon to support the converse of the doctrine. But held that, even if the rule as heretofore laid down (supra) be correct, it cannot be extended to an agreement looking merely to the co-operation of the accused in the detection of crime.</p> <p>3. Theft — Evidence — Charge of the Court.— It is competent for the State, in a trial for theft, to prove the theft of other property at the same time and placeas the property in question, if such proof conduces to establish identity in developing the res gestee, or to prove the guilt of the accused by circumstances connected with the theft, or to show the intent with which the accused acted with respect to the property for the theft of which he is on trial. See the opinion in extemo for evidence held admissible against the accused under the rule stated.</p> <p>4. Same.— Special instructions are properly refused if the general charge fully and correctly instructs the jury upon all of the issues raised upon the trial.</p>

<p>Appeal from the District Court of Fort Bend. Tried below before the Hon. W. H. Burkhart.</p> <p>The indictment in this case charged the appellant with the murder of his wife, Maria Thornton, in Fort Bend county, Texas, on the 9th day of April, 1884. His trial resulted in his conviction of murder of the first degree, and his punishment was affixed at a life term in the penitentiary.</p> <p>C. W. Purnell was the first witness for the State. He testified that in April, 1884, he was a deputy sheriff of Fort Bend county. On or about the 9th day of that month the witness was notified by one Dan Allen of the death of the girl Maria. He repaired immediately to the point indicated by Dan Allen, and there found the body of the deceased lying in an old field about one hundred yards distant from an old house. Her throat was cut from ear to ear, and her clothes were very bloody. The ground near the point where the body lay indicated a recent struggle. At several points between the old house and the body the witness found distinct traces of blood, there being more blood at a place about twenty steps from where the body was lying. The defendant was at the body when the witness arrived. He manifested no distress over the death of his wife. Witness observed a little blood on defendant’s hat, and some on his shirt, and called his attention to it. A little later the witness observed that the defendant was wearing an old apron, in an evident effort to conceal the blood on the shirt. He asked defendant how the blood got on his shirt, and he replied that it came from a hog he had killed. On that evening the witness arrested the defendant, and also Anderson Watkins, Wake Eector and Wade Hunter, and confined them in jail. Hunter, Eector and Watkins were discharged upon the examining trial. Eector and Watkins were brothers-in-law to the defendant, and Wade Hunter was his nephew. Quite a crowd of negroes were about the body when the witness arrived. A short time before the death of the girl Maria, the witness arrested the defendant upon a charge of seduction. Defendant gave an appearance bond to secure his attendance upon the district court of Fort Bend county, which was to convene on the fourth Monday in April, 1884. The body lay at a point in the field some seven or eight hundred yards from the house of old Jack Thornton, the defendant’s father, and about three hundred yards from the Brazos river. Dan Allen’s house was about four hundred and fifty yards from where the body lay, and on the opposite side of the river. A few small bushes and some undergrowth intervened between the body and Dan Allen’s house, but one could see from one point to the other. The blood from the deceased girl’s throat appeared to have spurted considerably at the point where a struggle was indicated by the condition of the ground. Defendant was a slender stripling at the time of the death of his wife. She was a small girl.</p> <p>C. M. Ferguson, district clerk of Fort Bend county, identified indictment number 1790 as an indictment returned by the grand jury of Fort Bend county at the October term, 1883, charging the defendant with the seduction of Maria Glenn, the deceased. The said indictment was then read in evidence, and the witness read from the minutes of the court, of May 13th, the entry of the dismissal of the same by the State upon the ground of the defendant’s subsequent marriage to the injured party.</p> <p>Chaney Glenn, the mother of the deceased, testified, for the State, that she last saw her daughter, the deceased, alive on the morning of Wednesday, April 9,1881. Deceased left witness’s house on that morning to go to Richmond for the purpose of marrying the defendant. On the next day the witness saw her dead body in what was known as the old “ Nolen field.” Her throat was cut from ear to ear and her clothing was very bloody. The deceased then had a baby about seven months old, the paternity of which was generally attributed to the defendant. The baby was found in the old house known as Jack Menken’s house, about one hundred yards from where its dead mother lay. It was still alive, but so very weak it could scarcely cry. The deceased was living with the witness at the time of her death, but had lived with the family of the defendant’s father. Witness’s house was about a mile distant from the house of old Jack Thornton, defendant’s father, at which house defendant lived, but it was on the opposite side of the river. The deceased went to see the defendant on April 8th, the day before her death, about going to Richmond. Early on Thursday morning, the day after the marriage of defendant and deceased, defendant and his sister Caroline came to a point on the river opposite the witness’s house, and called the deceased. The witness told defendant that the deceased was not at her house, and had not been there since the morning before. Defendant said that on the evening before he told her to go home, fix up her things and have them at the river on that morning, when he would take them and her to his father’s house, where he was staying. Defendant then promised to go in search of the deceased, and left, ostensibly for that purpose. About 11 o’clock on that day witness went to old man Jack Thornton’s house, and found the defendant at work in the field. She told him that her daughter was missing, and that he and the others must turn out and help hunt for her. Defendant then left the field with Wake Rector and Wade Hunter to hunt for the deceased. On Thursday morning the witness, in company with Jack Menken, met Louis Williams in Colonel Ellis’s pasture. This was about 11 o’clock. Louis Williams was on horseback. The body of the deceased was found near the trail which led from old man Jack Thornton’s house to the witness’s house, via the Menken crossing. The deceased went to defendant’s house on the day before, and was married to the defendant. Henry Williams went with her.</p> <p>Henry Williams testified, for the State, that on Tuesday, the second day before the body of the deceased was found, the latter went to the defendant’s house to get married. Witness went with her. They met the defendant and his brother Mitchell in the field. The deceased told defendant that she was ready to go to Richmond. The defendant, in reply, told the deceased that the horses were out; to go back home and return the next day, when they would go to Richmond and get married. The deceased went on up to the house, and the witness lingered about the place where they met defendant and his brother Mitchell. When the deceased had passed out of earshot, witness heard Mitchell Thornton say to the defendant: “Jack, you can kill her to-morrow.” Defendant replied: “ That is all right.” Defendant then turned to witness and told witness that he would keep coming to the field until he got himself killed. At that time the witness saw a razor in the defendant’s pants-pocket. Witness did not tell the deceased of this occurrence. He first told it to Ida Ella Smith, her mother and father, and John Glenn, with whom witness lived. He did not tell them until after the killing. Witness did not know at the time what defendant and Mitchell Thornton were talking about.</p> <p>Patsey Mills testified, for the State, that she saw the. defendant and the deceased on their way home from Richmond after their marriage on Wednesday. They passed witness’s house in the evening, the defendant a quarter of an hour ahead of the deceased. He rode by witness’s house in a lope, and was whistling.</p> <p>Anderson Watkins testified, for the State, that the defendant and . the deceased passed by his house on their way home from their marriage. Defendant did not get down, but when he got to witness’s house he called to the deceased to go on home that night, and to have her things at the river on the next morning, and that he would'get them and her, and take them to his father’s house, where he was then living. . On the next morning, when it was announced that the deceased was missing, the witness, his wife, defendant, old man Jack Thornton and his family turned out to hunt for the deceased. Witness and his wife went towards the old house in the field, and the defendant and the others went to the river lower -down. The deceased’s babe was found in the old house, and her body was found in the field about seventy-five yards from the old house. Witness then went to the river and reported his discovery to Chaney Glenn, the deceased’s mother, and Chaney repaired to the body. On his return to the body, the witness found the defendant and other searchers present. The body was found about half a mile from the trail which led from old Jack Thornton’s house to the river crossing. Witness remained with the body until nearly sundown, when he started home. On his way home he met Mr. Charley Purnell, and returned with him to the body. Witness was at the .body while Henry Smith was there. Henry Smith asked the defendant why he did not run away. Defendant replied that he had done nothing for which he should run away. Smith was the only person present who undertook to persuade the defendant to flee. Purnell arrested the witness on that evening. Witness lived within half a mile of old man Jack Thornton. He knew of no hogs being killed at Thornton’s on Tuesday evening.</p> <p>J. W. Harper testified, for the State, that he was present in the county clerk’s office on Wednesday, April 9, 1884, when defendant and deceased were married. At the conclusion of the marriage ceremony, the defendant asked Judge Somerville where he could get a divorce from the deceased. When informed by several that he could not get a divorce, the defendant appeared worried and angry. The deceased said that she did not want a divorce. Defendant had on his soiled working clothes. Witness was close to the defendant when the marriage ceremony was performed, but saw no blood on his shirt. H. Oglesby and H. L. Somerville testified to substantially the same facts stated by Harper.</p> <p>Henrietta Allen testified, for the State, that she was the wife of Dan Allen. She lived at the Brown place on the bank of the Brazos - river. On Tuesday the deceased told witness that she was going to be married to the defendant on Wednesday,—the next day. About sundown on Wednesday evening the witness saw the deceased, on the opposite side of the river, walking towards the old Menken house, with her baby in her arms and a bundle in her hand. The baby wore a white bonnet. The defendant followed her at a distance of about one hundred yards. They were then about two hun-dred yards distant from the old Menken house. The witness told her husband, Dan Allen, and John Glenn; about seeing the defendant and deceased on that evening. Glenn came to witness’s house on Thursday and told witness that deceased did not go home on the night before. Witness told Glenn' about seeing the deceased and defendant on the same evening not long after she saw them. She did not mention the matter to her husband until the next day.</p> <p>Louis Williams was next tendered as a witness for the State. The defense objected to his competency as a witness upon the ground that he was then a convict, serving sentence under two convictions for forgery. To support the objection certified copies of the records of the district court of Caldwell county, showing his conviction in two cases for forgery, his sentence under the said convictions, and the records of the penitentiary showing his confinement in the same under his sentences, were introduced by the defendant, and proof adduced that at the time of the death of the deceased the defends-ant was in the emplo}^ of Colonel S.'A. Ellis, under contract with the State. The State met the objection by producing the charter of pardon, issued by the Governor, extending to the proposed witness full pardon in both cases, the said pardon reciting that the convict had served nearly the whole of the combined terms, and that the pardon was granted upon the recommendation of the district attorney, who desired to use the said convict as a witness in important cases. The defense persisted in its objection, but the objection was overruled, an.d the said Louis Williams was held to be a competent witness.</p> <p>The witness testified that he knew the defendant and knew the deceased in her life-time. The witness last saw the deceased alive on the evening of April 9, 1884, in an old field in Colonel Ellis’s pasture, when the witness was riding through the pasture hunting mules. The deceased was then going down the trail through the field, in the direction of the river crossing. The defendant, whittling on a stick, followed some seventy-five yards behind the deceased. Witness heard them talking after he had passed the defendant some seventy-five yards, and he also heard the defendant speak to some one across the river. Defendant and deceased were both walking when witness saw them, the deceased having her baby and a shawl in her arms. Witness passed deceased and defendant at a point nearly opposite Dan Allen’s house. Witness rode on by old man Jack Thornton’s house, and was hailed by Jack Thornton, Senior, who told him that the defendant and the deceased were married on that day. Witness remarked that he had just met them, and that if he had known of defendant’s marriage he would have deviled him about it. Witness remained talking with old. Jack some fifteen minutes. During that time witness heard some one screaming, the screams coming from the vicinity towards which defendant and deceased were going when witness passed them. Witness asked old man Jack what the screaming meant, and he said that it -was merely somebody hallooing. Witness then left old Jack, with the remark that he would see if any one had fallen into the river. He started towards the point from which he thought the screaming came. When he had gone down the river two or three hundred yards, witness heard Mr. Eansom and Caswell Ellis coming with the mules, and soon fell in with them, but left them again in the old Nolen field, witness going up and Eansom and Ellis down the river. Witness did not pass- the old Menken house after he separated from Eansom and Ellis. Witness was out in the pasture on the next morning, his business being that of stock-minder for Colonel Ellis. On that morning he met Chaney Glenn and Jack Menken. Chaney asked witness if he had killed her daughter. Witness told her that he had not, and told here where he saw the deceased and the defendant on the evening before. Chaney and Menken were then going in the direction of old Jack Thornton’s house.</p> <p>The defendant was in his working clothes and in his shirt sleeves when the witness saw him and deceased in the pasture on the evening before the discovery of the body. Witness passed deceased and defendant on that evening about three hundred yards from old Jack’s house. It was between six and seven hundred yards from old Jack’s house to the Menken house. The sun was about an hour high when witness passed deceased and defendant on the evening in question. Timber was growing between the point where witness passed them and Dan Allen’s house, but there was a gap through which a person could see from one point to the other. Witness denied that he told P. B. Fowler that he said nothing about meeting the defendant and deceased in the pasture until after he was accused of the murder. He denied that he told Fowler that he did not see the defendant have either a knife or razor when he passed him. He did tell Fowler that he did not know whether deceased was whittling with a knife or a razor. Witness denied that he told Eaton, at his house, that he did not see either the defendant or the deceased in the pasture on the day the latter was supposed to have been killed. Witness told Chaney Glenn and Jack Menken, on the next morning, and Mr. Bertrand on the evening of the next day, that he saw the defendant and the deceased in the pasture on the evening when the murder is supposed to have been committed.</p> <p>Henry Smith was the next witness for the State. He testified that defendant and several other parties were about the body when witness reached it. From the body the witness, defendant, Wake Eector and Wade Hunter went over the trail leading to the body, and examined the ground. Witness asked defendant where the first cutting was done. He pointed out a place and said: “The first cutting was here.” He then pointed out another place and said: “She fell here. Whoever killed her must have started to carry her body to the bayou.” Witness said in reply: “Yes.” Wade Hunter, Wake Eector, Ki Autry and Anderson Watkins heard the conversation in which these statements were made. In the presence of the same parties witness charged defendant with the murder of the deceased. He did not deny the charge, but said nothing and looked down. Witness then asked him why he had not run off. He replied : “I did not know where to go.” Witness said: “ That’s so, Jack; you don’t know any place to go except to Bichmond and to Ike Peoples’s.” At this point of the conversation, Hunter and Eector said that defendant’s father had offered the defendant, on the night before, $100 and the best horse he had, to- enable him to escape, and tried to persuade him to leave the country. The witness testified, on the examining trial, but did not then swear that, in his conversation with the defendant at the body, he asked defendant where he supposed the first cutting was done, and that defendant pointed out a place and said that he supposed the first cutting was done there, and then pointed out another place at which he supposed the second cutting was done. Witness did not testify on the examining trial that be asked the defendant how he accounted for the removal of the body from the bloodiest part of the ground, as there was no drag, and that defendant replied that he did not know how to account for it, nor that witness then told defendant that it looked as if the person who killed her had started to carrying her body to the bayou, and that the defendant said: “Yes, it looks so.” Witness denied that he told Judge J. W. Parker, near the court-house, on the day of the trial, that he, witness, asked the defendant “ how he was going to get out of this thing,” and that the defendant replied that, since he was not in it, he had no occasion to get out of it. Witness denied that, in front of Bassett & Blakeley’s store in Bichmond, he told Wade Hunter and Wake Eector that thev ought to swear on the trial that the defendant killed the deceased, in order to purify their reputations in the community.</p> <p>Ellis Jones testified, for the State, that, at the body, he saw some blood spots on the defendant’s hat, and some small blood spots on his shirt. Witness’s attention was called to the blood on defendant’s hat by Mr. Purnell’s question to defendant respecting the manner in which he got it on his hat. To that question the defendant replied that he “ reckoned it was not blood, but was a scorched place.” There was a scorched place, and a blood spot as well, on the defendant’s hat. Purnell then called defendant’s attention to the blood spots on his shirt, and asked how they came there. He replied they came from two hogs which he helped to kill two days previous. Defendant showed no distress over the death of his wife, but said that it hurt him to be accused of her murder. Defendant had an apron about his shoulders. Witness was looking closely for every little circumstance that would throw any light on the murder. Wade Hunter and Wake Eector did not tell Henry Smith, in the hearing of the witness, that the defendant’s father, on the night before, offered the defendant a hundred dollars and his best horse, and tried to persuade him to leave the country. Henry Smith and the defendant did not have a conversation at the body that witness heard, in which Smith asked the defendant where the first cutting, etc., was done, as testified by Henry Smith. Witness heard no conversation of the kind related by Smith.</p> <p>Elder Menken testified, for the State, that he went with Chaney Glenn to Ellis’s pasture on the morning that the body was found. They went to old man Jack Thornton’s field about 10 o’clock, meeting Louis Williams on the way. Defendant and all of Thornton’s family were working in the field. Chaney hallooed to the defendant that her daughter was missing, and that all hands must turn out and hunt her. Witness returned home.</p> <p>Jake Sullivan, for the State, testified that he was at Letitia Smith’s house on the night of the day that the defendant and the deceased were married. Defendant came to Letitia’s house, walking, after dark. He told Letitia, in the witness’s presence and hearing, that he was troubled, and had worked none on that evening, but had been asleep under an oak tree in the woods, all evening.</p> <p>Sophie Smith testified that the defendant came to the house of her mother, Letitia Smith, between sundown and dark on the evening of his marriage. He came on horseback. Letitia asked him. if he was married. He replied that he was, and that he married against his will, but was going to get a divorce when the district court met. He said that he was troubled; that he left his wife on the court-house steps and went to the woods, where he lay down under a tree and had slept all evening. Defendant then brought Letitia a bucket of water and rode home. Jake Sullivan was not present at the conversation between defendant and Letitia. He came just as defendant was leaving, and told defendant that he wanted a talk with him. Defendant answered that he was in a hurry and could not talk. Defendant was as lively as usual on that occasion. He appeared in no wise strange. He left singing a song common among the convicts working in the neighborhood. Witness observed no blood about his clothes or person.</p> <p>Letitia Smith testified substantially as did the witness Sophie. She explained that Jake Sullivan arrived at her house while defendant was gone to the lake to get her a bucket of water. Sullivan heard none of the conversation between witness and defendant. Quite a number of convicts were at work around old Jack Thornton’s house at the time of the murder.</p> <p>Charity Thomas testified, for the State, that she was present at the marriage, of the defendant and deceased. Defendant, as-soon as the ceremony was over, said that he wanted a divorce and talked to Judge Somerville about getting one. Judge Williams told witness to talk to the young couple and try to get them reconciled to each other. Witness accordingly followed defendant and deceased out of the court-house, and on reaching the corner of the court-house found the deceased in tears. Witness asked her what was the matter, and she replied: “ Jack has threatened to kill me this- evening.” Defendant said: “Tes, I said so, and I meant what I said, and I won’t take it back.” The witness remarked to deceased: “He is joking; go home and live like white folks.” Defendant was apparently very angry.' The State closed.</p> <p>P. B. Foxvler xvas the first witness for the defense. He testified that at the last term.of the district court he heard the witness Louis "W filiaras tell Laxvver Parker that when he met the defendant and deceased in the pasture, defendant was walking along the trail forty or fifty yards in the rear of deceased, twirling a small stick, and that if defendant had a knife or razor he, Williams, did not see it. He also told Parker that he did not tell any one of having met the defendant and deceased on that evening, until after he xvas accused of the murder. During his conversation with Parker the witness Williams became very restless and uneasy, and in fact showed signs of conscious guilt.</p> <p>William Eaton testified, for the defense, that, at a festival at his house, some time after the killing, he asked the witness, Louis Williams, about having met the defendant and deceased in the pasture on the evening of the killing. Williams said that it was not true that he saw them in the pasture on that evening, and that he knew nothing about their being there.</p> <p>Jack Thornton, defendant’s father, testified, for the defense, that he came to Richmond with defendant and deceased when they were married, and bought the license for them. Witness was perfectly willing for the marriage to take place. Witness, defendant and deceased left the court-house together after some talk between defendant, Judge Somerville and others about a divorce, to which witness paid no attention, thinking that the white folks were joking the defendant. The witness separated from defendant and deceased in the town of Richmond, and the witness saw no more of deceased until he saw her dead body. The defendant and the deceased left town before the witness did, and witness did not overtake them. When witness got home, he found that defendant had eaten his dinner and was at work in the corn field. Witness, after getting his dinner, started to join defendant at work in the field, when the convict Louis Williams rode up from the inside of Colonel Ellis’s pasture. Witness and Williams talked at the fence perhaps fifteen minutes. Williams asked some question about the defendant, and witness said: “Jack is married.” Williams replied: “If I could see him I would devil him about it.” Witness then pointed out the place where defendant was at work, and told Williams that he could see him by riding down the fence. About this time the approach of some white men, with a bunch of horses, was heard, and Williams left, going towards them. Witness then went to the field where defendant was at work, and the two worked until nearly dark. They went home together, when defendant got his horse and went to Letitia Smith’s. He returned within the next hour and went to bed. Defendant did not dress up when he went to get married, but wore the same clothes, including the shirt, he had on the day before, when he and some other boys killed two hogs for witness. Williams said nothing to witness about seeing defendant and deceased in the pasture. Witness heard no hallooing or screaming while Williams was at his house.</p> <p>Lucy Watkins was the next witness for the defendant. She testified that defendant and deceased came to her house after their marriage on Wednesday evening. Defendant went on home, and deceased ate her dinner at witness’s house, some time after which, a girl having brought her baby to her, the deceased got across the fence into Colonel Ellis’s pasture and started home. Witness heard defendant tell deceased to be at the river early on the next morning when he would transfer her and them to his father’s house.</p> <p>E. E. Ransom testified, for the defense, that he and Caswell Ellis were in the pasture on the same day that the convict Williams claimed to have met defendant and deceased. They passed within two hundred and fifty yards of the old house in which the baby was found. They sent. Williams up the river and went down it themselves, and finding the horses they were looking for they returned over the trail on which Williams claimed to have met the defendant and the deceased. They were separated from Williams not longer than forty minutes. Witness did not see either the defendant or the deceased on that day. The trail described could not be seen from Dan Allen’s house, according to witness’s recollection. The view between the two points, the witness thought, would be obstructed by a growth of trees on a second bank of the river. At all events it would require an extraordinary eye-sight to identify a person that distance, or to determine whether at that distance a child had on a bonnet or a handkerchief. Witness heard no screaming in the pasture on that evening. Witness had known old Jack Thornton for years as a man of exemplary honesty and truthfulness. He had known the defendant, since his birth, as a remarkably industrious, hardworking, quiet and thoroughly reliable boy. Louis Williams as a convict was an exceptionally good and attentive man to his business, and was entirely trustworthy.</p> <p>Dan Allen testified, for .the defense, that John Glenn came to talk to him about this case. He told the witness that if he, witness, would know something about the case, he, John Glenn, would divide all of his future earnings with him. After John Glenn had talked with witness’s wife, she told witness about seeing defendant and deceased across the river on Wednesday evening. Witness never before heard his wife speak of seeing defendant and deceased on Wednesday evening until after John Glenn talked to her. Witness became satisfied in his own mind that John Glenn had succeeded in over-persuading his, witness’s, wife.</p> <p>Cross-examined, witness stated that he was unwilling to testify1-that his wife had sworn to a lie, but he believed that she had been over-persuaded by John Glenn. After some hesitation witness said that his wife, on the night of the killing, but after John Glenn had been to see her, told him about seeing defendant and deceased in the pasture. Witness was not at home when Glenn talked to his wife about the matter. Witness told his wife not to go to court and testify to facts she knew nothing about. He also told her that he knew Glenn had over-persuaded her.</p> <p>Wade Hunter, for the defense, testified that he saw the defendant when he started to Eichmond to get married. He saw the defendant working in the field after his return from Eichmond. Defendant wore his every-day clothes to his wedding. Witness was at the body soon after it was found. He heard Henry Smith tell the defendant to run off. Defendant replied that he had done nothing to run from, and was not going. The witness did not tell Henry Smith that the defendant’s father offered him a horse and a hundred dollars, and tried to persuade him to flee the country. Ho such conversations between Smith and defendant occurred at the body of the deceased as those detailed by the witness Henry Smith when on the stand. Henry Smith, in June, told witness and Wake Rector, in front of Bassett & Blakeley’s store in Richmond, that they ought to swear on the trial that the defendant killed the deceased in order to benefit their reputations in the community. Witness, Wake Rector and the defendant killed two hogs on Tuesday evening. Witness and Wake dragged the larger of the two carcasses to the scalding vat, and defendant carried the smaller to another vat. They butchered the meat, salted it and put it away.</p> <p>Wake Rector testified, for the defense, substantially as did the witness Wade Hunter, and in addition that he saw the defendant at work in the field throughout the evening after his return from his wedding. During the same time, and while defendant was at work, witness saw some one at a distance whom he took to be the deceased.</p> <p>Sydney Thornton, defendant’s mother, testified in his behalf that upon his return from Richmond on Wednesday, when he was married, the defendant ate dinner and went direct to the field to work. Deceased came to witness’s house shortly after defendant went to work, stayed a short while, and left, going towards her father’s house. Defendant and Caroline Rector Went to the river on the next morning to meet the deceased and bring her and her things to the witness’s house. Defendant, Wade Hunter and Wake Rector killed two hogs on Tuesday evening. The defendant did not change his shirt on the next day, but was married in the same one he wore when he killed the hogs. He started to wear the same pants, but witness and his father persuaded him to change pants,-as the ones he had on were entirely too bloody and soiled by his work with the hogs to wear to town. Louis Williams rode up to witness’s house just as old man Jack Thornton was starting to the field to join defendant at work. They talked a few minutes and Williams left.</p> <p>Caroline Rector testified, for the defense, that she lived at the house of her father, old man Jack Thornton. Deceased came to the house after her marriage, and after defendant had- gone to work -in the field. Witness could see the defendant and the others at" work in the field while deceased was at the house. Witness stayed at home on that evening to prepare a room for occupation by the . defendant and the deceased. On the next morning the witness went • with the-defendant to the river to meet the deceased. Defendant called across the river to Chaney Glenn’s to know if the deceased , was at home. Chaney replied that she was not, and that the con- . vi'cts had killed her, and asked the defendant to go down the river and examine a white object there in the water. Defendant went to . the point indicated, and thence to some parties in a boat, and asked -if they had seen the deceased. Defendant, Wade Hunter and Wake . Kector killed two hogs on Tuesday. Defendant wore the same shirt ,-to town he had on when he killed the hogs, but changed his pants. . Defendant had on, when arrested, the same shirt he wore at the . wedding, and which he had on when he killed the hogs.</p> <p>■ .John Brown testified, for the defense, that he had been jailer during the larger part of defendant’s confinement. Defendant had been a quiet, tractable boy, and had never taken advantage of many opportunities to escape.</p> <p>Mitchell Thornton testified, for the defense, that he and defendant were at work together when the deceased and the boy Henry . Williams came to the field. ¡Neither defendant nor witness had a razor. Witness did not say to the defendant: “Jack, you can kill her to-morrow.” Caroline ¡Rector and others worked all of that evening in the field with defendant.</p> <p>Judge Barker testified, for the defense, that he represented the defendant as counsel on the examining trial-. The State’s witness Henry Smith told witness that, in talking with the defendant at the body of-the deceased, he asked defendant: “How are you going to .get out of this?” and that defendant replied: “I am not in it, to get-out,”</p> <p>¡R. H. Earnest testified, for the defense, that at the time of the examining trial he was county attorney of Fort Bend county, and as such .represented the State. He used his utmost endeavor to secure every particle of evidence for the State to be had. Henrietta Alien was not a witness upon the examining trial, and witness never heard.of her in connection with the case until upon this trial. John Glenn labored earnestly and actively in tracing .up testimony, but he never once mentioned Henrietta Allen’s name to the witness. Old man Jack Thornton brought some fresh meat to show the witness, but the meat did not appear to the witness to be as fresh as • the old man represented it to be. .. .</p> <p>Kj Autry, testifying for the defense, denied, .that the defendant and Henry Smith had, in his presence, any such conversations at' the body as the said Henry Smith testified to when on the stand as' a witness for the State. He denied that Wade Hunter or Wake; Hector said to Smith, in his presence, that defendant’s father bad offered him a hundred dollars and a horse, and tried to induce him to flee. Henry Smith did, however, charge defendant with the kill-' ing. Defendant said nothing in reply, but looked down. *</p> <p>The defense then read from Henry Smith’s statement upon the examining trial, as follows: “ While at the body, I asked the defend-" ant where he supposed the first cutting was done. He pointed out a: place and said: ‘ It looks as if the first cut was made here.’ He then' pointed out another place, and said: ‘I think the second cut was1 made here.’ I asked the defendant how he accounted for the body being removed from where the most blood was, and told him I could1 see no blood and no drag. He said that he did not know. I told* the defendant that it looked like whoever killed her started to carryr her body to the bayou, and he said, ‘ Yes, it looks so.’ ”</p> <p>Willis Hayes testified, for the defense, that he was in the courthouse when the defendant and the deceased were married, and talked to deceased, defendant and his father, until they left the court-1 house. Witness did not “see Charity Thomas on that day, and she* was not in the court room when the marriage ceremony was performed. If Charity Thomas saw the defendant and the deceased* at all, she saw them after the witness left. The defense closed;.</p> <p>William Bertrand testified, for the Stale, in rebuttal, that Louis1 Williams, on the day or on the day after the body was found, told-the witness that he saw the defendant and the deceased in. Ellis’S pasture on Wednesday evening. Witness had heard of the murder and that Williams was in the pasture on the evening that the mur-der was supposed to have occurred, and saw the defendant and the deceased. i ' ■ i *</p> <p>Louis Williams testified, for the State, that no inducements of any kind were offered him to testify in this case. He knew abscn lutely nothing about his pardon until it was handed to him. :</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

<p>1. Theft—Ownership.— To constitute the crime of theft-it is not essential that the thief knows who is the owner of the stolen property. On the contrary, it is sufficient if he knows that it is not his own, and he takes it to deprive the true owner of its value, whether or not he knows the true owner.</p> <p>2. Same'—Marks.— The right of the true owner of hogs, sheep and goats to his property is not affected by the statutory requirement (article 4558 of the Revised Statutes) that he shall mark his hogs, sheep and goats before or when they are six months old, and the fraudulent taking of such animals, unmarked, is as much theft as ■ though they were marked when taken. The owner’s recorded mark is not even required as the best evidence of ownership, as is the case with brands;</p> <p>8. Same—Evidence —Charge of the Court—Case Overruled.—A rule of ■ law can never be subverted by local custom, and, in so far as it holds otherwise, the case of Díbbs v. The State, 43 Texas, 650, is overruled. The trial court, in this case, properly rejected evidence to the effect that-' a general custom, in the county of the offense, gave to any one the right to kill all unmarked hogs, over twelve months old, found on the range. It was not error, therefore, to refuse a special instruction to the effect that if the hogs wére unmarked and were over six months old, and the defendant killed' them not knowing them-to belong to H., the alleged owner, he would not be guilty of theft.</p> <p>4. Same.— See the opinion in extemo for a charge of the court upon the subject of taking property under a mistaken claim of right, and upon the doctrine of reasonable doubt, held sufficient in this case.</p> <p>6. Same—Practice.— Though the trial court may qualify or modify a requested instruction, so as to make it present the law as the court conceives the law to be, the trial court is not bound to qualify or modify an illegal or erroneous charge, but may refuse it altogether.</p> <p>6. Same — Verdict.—See the statement of the case for a verdict held to be sufficiently specific and definite.</p> <p>7. Same — Fact Case.— See the statement of the case for evidence held sufficient to support a conviction for misdemeanor theft.</p>

Tried below before the Hon. J. C. Russell. The conviction in this case was for an assault with intent to rape one Louisa Rodriguez, a female over the age of ten years. A term of two years in the penitentiary was the penalty assessed against.' the appellant. Doctor W. W. McGregor was the first witness for the State.

Arpear from the District Court of Milam. Tried below before the Hon. W. E. Collard. The indictment in this case charged the appellant, 3. W. Pickett and Jesse Kaiser, jointly, with the offense of wilfully burning the store-house of J. M. Eplin & Co., in Milam county, Texas, on the . 10th day of March, 1885. The appellant, being alone upon trial, was convicted, and his punishment was assessed at a term of five years in the penitentiary.

<p>1. Falsely Personating Another, eto.—Indictment for falsely personating another person, as that offense is defined by article 450 of the Penal Code, need not allege the whereabouts or the residence of the person falsely personated. An indictment conforming substantially to number 818 of Will-son’s Criminal Forms, page 144, sufficiently charges the offense of falsely personating another.</p> <p>2. Same — Fact Case.— See the statement of the case for evidence held insufficient to support a conviction for falsely personating another.</p>

Tried below before the Hon. George McCormick. The conviction in this case was for the rape of Jennie Webb, in Gonzales county, Texas, on the 5th day of August, 1885. A term of five years in the penitentiary was the penalty assessed against the appellant. Jennie Webb was the first witness for the State. She testified that she was the woman alleged in the indictment to have been raped. The defendant on trial, William Bryson, was the man who raped the witness.

Tried below before the-Hon. W. A. Blackburn. The conviction, in this case was for the theft of $44 in money from the person of J. C. ¡Roberson, in Bell county, Texas, on the 18th day of ¡November, 1885. A term of five years in the penitentiary was the penalty imposed upon the appellant. J. 0. Roberson was the first witness for the State. He testified that he knew the defendant, and knew that the defendant got his money.

Tried below before the Hon. L. D. Bradley. The conviction in this case was for swindling one B. P. Goodman in Navarro county, Texas, on the 21st day of December, 1885, in the manner set out in the indictment, the substance of which is stated in the opinion. A term of two years in the penitentiary was the penalty assessed. B. P. Goodman was the first witness for the State.

Tried below before H. L. Stone, Esq., Special Judge. The conviction was for the forgery of an order for goods, the body of the instrument being set out in the head-notes of this report and in the opinion of the court. A term of two years in the penitentiary was the penalty assessed against the appellant.

Tried below before H. L. Stone, Esq., Special Judge. The conviction in this case was for uttering as true, knowing it to be forged, the written instrument for the forgery of which the appellant was convicted in the preceding case of Anderson v. The State, p. 595. The evidence upon this trial was substantially the same as that adduced in the previous case.

Tried below before the Hon. J. C. Bussell. The conviction in this case was for the theft of a horse, the property of Antonio Flores, in Nueces county, Texas, on the 10th day of March, 1885. A term of five years in the penitentiary was the penalty assessed against the appellant. Antonio Flores, the first witness for the State, testified that he lived in Corpus Christi, Texas.

Tried below before the Hon. L. D. Bradley. The conviction in this case was for the theft of a steer, the property of some person to the grand jury unknown, in Navarro county, Texas, on the 18th day of May, 1883. A term of two years in the penitentiary was the penalty assessed against the appellant. A. W. McFall was the first witness for the State. He testified that he was the hide and animal inspector of Navarro county in 1883.

Tried below before the Hon. George McCormick. The conviction in this case was had upon an indictment which charged the appellant with incest with one Kinnie Johnson, alias Kinnie Smith, the daughter of his wife, Ellen Johnson, in Gonzales county, Texas, on the 1st day of April, 1885. A term of five years in the penitentiary was the penalty imposed upon the appellant. Kinnie Johnson was the first witness for the State.

Tried below before the Hon. A. S. Walker. The indictment in this case charged the appellant with the murder of- Charles Cook, in Williamson county, Texas, on the 2d day of October, 1885. His trial resulted in his conviction of murder in the second degree, his punishment being assessed at twenty years in the penitentiary. Doctor Haney was the first witness introduced by the State.

<p>1 .Practice — Change of Venue.— In a felony case the defendant applied for a change of the venue on the ground that on account of prejudice he could not get an impartial trial in the county of the forum, and his application was supported by the affidavits of twelve compurgators. The State filed the counter-affidavit of the sheriff of the county, directly controverting the application, and attacking the means of knowledge of the twelve compurgators by alleging that it was “confined to their particular neighborhoods, which do not include the whole county, and that their means of knowledge is besides limited, they not being acquainted with the sentiments of the people” of the county on the subject. His counter-affidavit expressly denied the alleged prejudice and asserted that the defendant could get an impartial trial in the county. To the sufficiency of this counter-affidavit the defense excepted on the ground that it affirmed the mere conclusions of the sheriff, and not matters of fact, and also on the ground that the sheriff of the county is “ not the kind of person who in law is intended to make the counter-affidavit. ” The trial court overruled the exceptions, heard evidence on the issue, and refused to change the venue of the cause; to which the defense reserved exception. Held, that the exceptions to the counter-affidavit were properly overruled, and no error in the rulings and action of the trial court is apparent.</p> <p>3. Dying Declarations—Predicate—Practice. — In a trial for murder the State proposed to put in evidence certain dying declarations of the deceased, and (the jury being retired) laid a sufficient predicate by a witness who swore that the deceased said he was dying. The defense proposed to disprove this statement of the State’s witness, and to prove that the deceased did not say he was dying. The trial court refused to hear this proof offered by the defense, and held that it was not admissible on the investigation of the predicate, but would be admitted before the jury on the trial in chief, as evidence tending to impeach the credibility of the State’s witness. Held, that the ruling of the trial court was correct.</p> <p>3. Dying Declarations — Evidence.— It was in proof that the deceased, after he was shot, said that he was killed, but that in his great agony he persistently asked a physician to “ do something for him.” The defense contended that this showed hope of recovery, and thereby disqualified as evidence the deceased’s further declaration that it was- the defendant who shot him. But held that the appeal of the deceased for relief did not prove that he entertained hope of recovery, and therefore the trial court correctly admitted testimony of the deceased’s further declaration as to the person who shot him.</p> <p>4. Pardon.— To the competency of a State’s witness the defense objected and proved by the record that he had been convicted of a felony, to wit, the theft of a steer, at the June term, 1878, of the trial court. The State, to obviate the objection, offered a charter of pardon which described the felony as “cow-stealing,” and dated the conviction as of the September term, 1878. The defense objected to the pardon on the ground that it was for a different offense than that of which the witness had been convicted. The trial court, over defendant’s objection, heard proof by the record, the clerk of the court, and the witness himself, showing that the latter had never been convicted in the court; but the one time disclosed by the record evidence introduced by the defense. The trial court sustained the sufficiency of the pardon in spite of the discrepancies between it and the record of conviction, and held the witness competent to testify. Held, that the ruling was correct.</p> <p>5. Murder — Evidence—Practice.— To impugn the competency of the same witness for the State, and in support of a motion to have his testimony withdrawn from the jury, the defense relied upon the witness’s own admissions that on the day after the homicide he testified before the grand jury and a justice’s inquest that he himself killed the deceased, and that, being imprisoned therefor, two members of the grand jury came to the jail and told him he would be released if he would change his testimony and swear that the deceased was not killed by him but by the appellant,— which was the truth according to the witness’s present testimony. The witness stated that he did change his testimony before the grand jury in accordance with the suggestion of the two grand jurors, and was released from custody. The defense insisted that this showed the witness to have been bribed and thereby incapacitated to testify. The trial court ruled that these matters went to the credibility and not the competency of the witness; and this ruling is held correct.</p> <p>6. Same—Is the State Bound to Introduce All Attainable Eye-witnesses of the Res Gestee? In support of the affirmative of this question consult the opinion of the court for the individual views of White, presiding judge; and in maintenance of the negative see the reasons assigned by Hurt, judge, in his dissenting opinion. (The views of Willson, judge, upon this question are not disclosed.)</p> <p>7. Murder— Self-Defense.—Article 574 of the Penal Code, in express terms and without qualification or condition, justifies homicide committed for the protection of the slayer’s person against an attack which “ produces a reasonable expectation or fear of death or some serious bodily injury.” This is a substantive and independent provision of the Code, entirely consistent with the preceding articles 570 and 572, and there is no legal warrant to engraft upon it the requirement or condition of article 572, that “other means” for the prevention of the injury must be resorted to before the slayer is justifiable in killing his assailant. If, therefore, in a trial for culpable homicide, there be evidence tending to prove that the homicide was committed for the protection of the person of the slayer against an attack by the deceased which produced a reasonable expectation or fear of “serious bodily injury” to the slayer, it was error to instruct the jury to convict, unless the slayer, before killing the deceased, resorted to other means for the prevention of the injury. (Hurt, judge, dissents from this ruling.)</p> <p>8. Same.— Hurt, judge, dissenting from the last preceding ruling, maintains that the slayer is not justified in killing his assailant before resorting to other means of preventing the injury, unless it reasonably appears that the intention of the person killed was to commit one of the specific offenses enumerated in article 570 of the Penal Code,— to wit, murder, rape, robbery, maiming, disfiguring, castration, arson, burglary, and theft at night; and that article 574, relied upon by the majority of the court, should be construed in connection with and subordination to article 572; and therefore, if the unlawful and violent attack be such as only produces a reasonable expectation or fear of serious bodily injury, the slayer, before killing his assailant, must resort to other means of prevention, and must kill while his assailant is in the very act of making the unlawful and violent attack, as required by said article 572. See the dissenting opinion in extenso on the subject.</p>

<p>Appeal from the District Court of ¡Rusk. Tried below before the Hon. J. G. Hazlewood.</p> <p>The conviction in this case was for the burglary in day-time of the roorq °f one S. J. Brandon, in Rusk county, Texas, on the 6th day of November, 1885. A term of three years in the penitentiary was assessed against the appellant.</p> <p>S. J. Brandon was the first witness for the State. He testified that he lived in Henderson, Rusk bounty, Texas. A pair of shoes belonging to the witness were taken from his room, in Henderson, on or about November 5, 1885. The theft was perpetrated in the day-time. The room from which the shoes were taken was one of the upper floor rooms over the Neal, Hill & Co. building, and was occupied .by the witness and J. M. Wilson. The witness last saw those shoes in the room described about 11 o’clock on Thursday night, November 5, 1885. He first missed them between 7 and 8 o’clock on the night of Friday, November 6, 1885. The shoes were number seven and a half, in size, and of the pattern known as kangaroo shoes. The witness bought them from Blanton & Nennelly. They were worth about $5 when taken.</p> <p>The defendant was in the habit of going to the witness’s room to get witness’s clothes for the purpose of having them washed. He usually called for the clothes on Monday, and generally brought them back late in the week. Defendant’s wife was employed to do the witness’s washing, and defendant knew where the key to witness’s room was kept hanging. He went to the room and collected witness’s clothes frequently during the absence of the witness. The witness was the last person to leave the room on Friday, November 6, 1885- He locked the door and left the key in its usual place. The room door was unfinished on the outside, and the key was kept hung on an upright piece on the side, and could not be seen until the door in the hall was passed. The door described was the only means of entering the room. The defendant had the witness’s consent to enter his room only to get and return his washing. The defendant did not have witness’s permission to enter the room on Friday, November 6, 1885. No one had witness’s consent to take the shoes. Defendant brought the witness’s washing home on Thursday evening.</p> <p>On the Monday following, the witness saw the defendant and asked him if he had been in his room during Friday. He replied that he had not, but that he was at Mr. Gunkle’s room on that day. He told the witness that the pair of shoes he then had on (an old pair) were the same shoes he wore to Overton. Witness next saw the defendant at the examining trial, when he had on the same pair of old shoes. Witness’s clothes were brought home on Thursday night, the night before the theft, and witness wore some of them that night to the musical club. Witness did not know how many articles of clothing were taken out or brought back. He had missed none of the articles of clothing. If defendant brought any articles of clothing to witness’s room on Friday, witness did not know it.</p> <p>Cross-examined, the witness stated that the defendant was authorized to go into his room and get his clothes to be washed, and to return them, and generally did so without conferring with the witness. Witness and an officer searched the defendant’s house on Monday after the theft, but found no shoes. Defendant authorized the search of his house. A kangaroo shoe was a soft, kid leather shoe, leather soles, and single low, flat heel. Defendant came to witness’s room and got witness’s washing on the Monday after the theft.</p> <p>J. M. Wilson, the next witness for the State, testified that he, with S. J. Brandon, occupied the room from which the shoes were v taken. The witness did not give his consent to the defendant to enter the room.</p> <p>Cross-examined, the witness stated that he usually got up from bed before Brandon. Jim Holloman’s wife was doing witness’s washing at the time of the theft of Brandon’s shoes. The witness could not remember the day of the week on which his washing was generally brought in, but knew that he generally, if not invariably, took his washing to his room himself. Witness could not recollect that his washing came home on the Friday the shoes were stolen. Witness did not think he went back to the room after he left it in the morning during the Friday of the theft. He had no recollection of ever sending his boy to his room with clothes.</p> <p>Doctor Hays testified, for the State, that his office was situated in the same building in which Brandon’s room is located. While witness was standing in the doorway, down stairs, on Friday, November 6, 1885, he saw the defendant go up the stairway of the said building. The witness went to the foot of the stairway to see if the defendant wanted him, and saw the defendant turn towards Brandon’s room at the head of the stairway. Witness had no recollection of seeing the defendant any more on that day. Defendant had a bundle in his hand as he went up stairs. Witness’s office was on the opposite side of the hall, up stairs, from Brandon’s room.</p> <p>Porter Sherwood testified, for the State, that he was a conductor on the H. & O. Railroad, and was on duty on Friday, November 6, 1885. He had in his employ at that time a brakeman named Charley Bean. Witness left Henderson aibout 4 o’clock on the evening of November 6, 1885. At that time the witness had a pair of kangaroo shoes, just like a pair owned by S. J. Brandon, which he bought from Blanton <fe Nennelly. Just after leaving Henderson the witness observed a negro standing on the platform between the passenger coach and the caboose. That negro had on a pair of kangaroo shoes just like those owned by the witness and Brandon. Witness observed them because it was an unusual thing to see a negro wearing shoes of that character. ■ Witness could not identify the defendant as the negro he saw wearing the shoes described, on the occasion referred to.</p> <p>Charley Bean testified, for the State, that he was a brakeman on the train of which Porter Sherwood was conductor. Witness, while standing at the brake on the platform between the passenger coach and the caboose, on November 6, 1885, saw the defendant, wearing a pair of fine shoes, just like a pair owned by Mr. Sherwood. Mr. Sherwood passed from the coach to the caboose while the witness and defendant were standing on the platform. Witness afterwards heard that Mr. Brandon lost a pair of shoes.</p> <p>Cross-examined, the witness stated that defendant went back to Henderson on Monday.</p> <p>Lewis Hudson testified, for the State, that he saw the defendant at the depot in Henderson on Friday, November 6, 1885. Defendant then had on a pair of very nice shoes, such as the witness had never seen before unless at Nennelly’s. The shoes were a tight fit, and were the subject of some conversation between the witness and the defendant. Defendant said that he got the shoes from Chap. High-tower, at Barthold’s. He said that he was going to O.verton. When he came back from Overton defendant had on a different pair of shoes. Witness asked him what he had done with the shoes he wore off. He replied that they were rather tight on his feet, and he had traded them off. He then told witness that he had been visiting his uncle near Longview. The shoes defendant wore off on Friday were second-hand shoes,—that is, they had been worn.</p> <p>O. 0. Hightower testified, for the State, that he was generally called Chap. Hightower. He was a clerk in Barthold’s store. Barthold had never kept such a shoe as that lost by Brandon, and witness had never sold such a shoe to the defendant.</p> <p>Mr. Gunkle testified, for the State, that he clerked for S. J. Brandon, and occupied a room in the Meyer building in Henderson, Texas. Defendant was not in witness’s room on Friday, November 6, 1885. Witness always carried his room key with him. Defendant always brought witness’s clothes to him at the store, and witness always took them to the room himself.</p> <p>Sheriff Rogers testified, for the State, that he saw the defendant wearing a very fine pair of close-fitting shoes, on the train on Friday, November 6, 1885.</p> <p>The motion for new trial raised the question discussed in the opinion.</p>

<p>Appeal from the Criminal District Court of Galveston. Tried below before the Hon. Gustave Cook.</p> <p>The conviction in this case was for the theft of property over the value of $20, from M. W. Shaw, the owner, in Galveston county, Texas, on the 1st day of August, 1885. A term of three years in the penitentiary was the penalty assessed against the appellant.</p> <p>Michael W. Shaw was the first witness for the State. He testified that a variety of articles were stolen from him in Galveston county, Texas, between June 1,1885, and August 3,1885. Witness could remember of those articles the following:</p> <p>One set dinner china, valued at...................................' $14.50</p> <p>One caster, “ “................................... 6.00</p> <p>One nickel-plated watch, chain and charm...................value 9.00</p> <p>One nickel-plated watch..................................... “ 6.00</p> <p>One locket.................................................. “ 1.50</p> <p>One necklace and locket.................... ................ “ 6.00</p> <p>Two sets of coral jewelry................................... “$3.00 6.00</p> <p>One pair bracelets........................................... “ 5.00</p> <p>One pair bracelets........................................... “ 1.50</p> <p>One lace pin................................................. “ 4.00</p> <p>One pair earrings....... .................................... “ 2.00</p> <p>One necklace................................................ “ 2.00</p> <p>One watch.................................................. “ 6.00</p> <p>One watch chain............................................ “ 2.00</p> <p>One watch charm............................................ “ 2.00</p> <p>Three nickel watches............................... “ 6.00 18.00</p> <p>One gold ring............................................... “ 5.00</p> <p>Fifteen cut-glass tumblers.................................. “ 50c. 7.50</p> <p>One pen and penholder...................................... “ 5.00</p> <p>The witness missed the articles named early in August,-1885. Shortly after they were missed Ella Jones brought the set of dinner china and the caster to the witness. All of the other articles were recovered by the witness through officer James Cahill. Witness identified all of the articles returned to him by Ella Jones and officer Cahill as his property. They were all taken from him in Galveston county, Texas, without his consent. The defendant was employed about the store by the witness as porter. Witness did not sell him any of the articles or consent for him to take any of them.</p> <p>Ella Jones testified, for the State, that the defendant gave her the dinner set of china, and the caster, some time in June, 1885. He brought the china and the caster to the witness at the same time. Witness asked him why he was giving her such expensive articles, and he replied that he wanted to give her something nice. He then told witness that he bought them from Mr. Shaw. He afterwards told the witness that he stole them from Mr. Shaw. When the defendant confessed to witness that he had stolen the articles,.the witness was sick and unable to go out. As soon as the witness-was able, she took the articles to Mr. Shaw, and told him where she got them. Defendant gave witness a necklace at another time..</p> <p>Cross-examined, the witness testified that she could read and write. She had a quarrel with the defendant after the defendant told her that he had stolen the china and caster. She was sick when the quarrel occurred, and was unable to go out to see Hr. Shaw. She did not write to Hr. Shaw, nor did she telephone him anything about the property then in her possession. She preferred seeing Shaw in person. She sent word to Shaw to come to see her, and Shaw sent her word to come and see him. Witness offered to sell the articles, but that was before defendant told her that he stole them. The quarrel had nothing to do with witness’s return of the property to Shaw. She returned it to Shaw merely because defendant told her it was stolen property. Witness and defendant occupied the same room and were engaged to be married, and had procured a marriage license, when defendant presented her the articles. Witness denied that, when defendant moved to Gus Jefferson’s house, she proposed that if he would pay her $6, she would not report the matter.</p> <p>Officer Cahill testified, for the State, that he got the articles of jewelry, except the penholder, mentioned in the indictment, from Hr. Ephraim, the pawnbroker. The penholder he got from Mr. Megel. The cut-glass tumblers witness got ■ from Ike Jiector. All of the articles described were turned over to Mr. Shaw by the witness. Witness identified them as the articles now in court.</p> <p>Mr. Ephraim testified, for the State, that he identified the watches and other articles of jewelry in court as articles which, during the last six months, were pawned with him by the defendant, and the same which he turned over to Mr. Cahill.</p> <p>Ike Eector testified; for the State, that the defendant brought the cut-glass tumblers in evidence to his place as a sample, some time in the summer of 1885. Witness told defendant that he did not want the glasses, as they were too fine for his business. Defendant said that they could be bought cheap of Shaw. Witness turned them over to officer Cahill.</p> <p>Matilda Jack testified, for the defense, that Ella Jones, the witness who testified in this case, was the kept mistress of the defendant for some' time. Defendant and Ella were engaged to be married. The marriage license was secured, but the marriage was never consummated, because of a quarrel which separated the defendant and Ella. Ella sent the caster to the witness’s house by George Wilson, offering to sell the same. Witness declined to purchase them. Ella made an efforE to sell the caster and the china set to the witness’s sister, Lucy Perkins, now living in Brazoria county. Ella knew, when she offered to sell the said articles, that they had been stolen. She told defendant at the time of the difficulty between them that she would “ fix him,” and that no other woman could get him, defendant. At another time Ella threatened to send the defendant to Huntsville (the penitentiary).</p> <p>G. W. Wilson testified, for the defense, that he was the person who, at Ella Jones’s request, took the caster to Matilda Jack’s residence for the purpose of selling it to Matilda, The proposed sale fell through. Ella knew at that time that the caster was stolen property. The witness heard Ella Jones threaten to “ fix ” the defendant, and to send him to Huntsville, shortly after the difficulty between her and defendant. Ella offered also to keep the matter of the theft secret if defendant would pay her $6. Witness lived with defendant and Ella while defendant was keeping Ella as his mistress.</p> <p>Tom Jack testified, for the defense, that he was the father of the defendant. He often heard Ella Jones threaten to send defendant up the road. He heard Ella make those threats after her quarrel with the defendant. She was angry, and evidently meant what she said.</p> <p>Mr. Benicke testified, for the defense, that the crockery and caster in evidence were worth between fourteen and fifteen dollars, and the tumblers about $5. Mr. Labadie estimated the value of the articles named at not exceeding $15.</p> <p>Joseph Keenan and William Bitter testified that they had had the defendant employed in their saloons as porter. He frequently had opportunities to steal. They supported the defendant’s reputation for honesty, and stated that they knew it to be good.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. Gustave Cook. The conviction in this case was for the theft of $41.50, the property of Eobert P. Sherwood, in Galveston county, Texas, on the 7th day of October, 1885. A term of two years in the penitentiary was the punishment assessed against the appellant. Eobert P. Sherwocrd testified, for the State, that on the 7th day of October, 1885, he changed his pants in the dining-room of his residence in Galveston, Texas.

Tried below before the Hon. Edwin Hobby. The indictment in this case charged the appellant with an assault with intent to murder one E. Stringer, in Polk county, Texas, on the 1st day of October, 1883. His trial resulted in his conviction of an aggravated assault and battery, and his punishment was assessed at a fine of $687.50. Eph. Stringer was the first witness for the State. He testified that he was shot by the defendant, on or about December 13, 1883.