Volume 21 — Texas Court of Appeals Reports

Tried below before the Hon. George McCormick. This is the companion case to that of Carr v. The State, reported in full in volume nineteen of these Reports. A separate indictment charged this appellant with the same offense—the burglary of the store house of Samuel Brown and J. W. Peebles, in Gonzales county, Texas, on the tenth day of December, 1883. The appellant’s trial resulted in his conviction, and his punishment was assessed at a term of four years in the penitentiary.

Tried below before the Hon. A. S. Walker. ■ This is the companion case to that of Bob Pierson v. The State, which will be found reported in full in the eighteenth volume of these Reports, commencing on page 524. This conviction was in the first degree for the murder of Doctor J. C. Stovall, in Travis county, Texas, on the sixteenth day of March, 1885. A life term in the penitentiary was the penalty assessed by the jury against this appellant.

Habeas Corpus on appeal from an order in chambers, issued by the Hon. D. C. Barmore, County Judge of Brazos county, Texas.

Tried below before the Hon. F. E. Finer. The conviction in this case was had under an indictment which in different counts, charged, in the same transaction, a diurnal and a nocturnal burglary, of the house of T. M. Harris, in Den-ton county, Texas, on the seventeenth day of July, 1885. The penalty assessed against the appellant was a term of two years in the penitentiary. T. M. Harris was the first witness for the State. He testified that he lived in Denton county, Texas.

Tried below before the Hon. J. I. Perkins. Under an indictment which charged him with the murder of Philip B. Owens, in Cherokee county, Texas, on the twenty-third day of November, 1885, the appellant was convicted of murder in the second degree, and his punishment was assessed at a term of forty years in the State penitentiary. J. G. McEIroy was the first witness for the State.

<p>Appeal from the District Court of Lavaca. Tried below before the Hon. George McCormick.</p> <p>The indictment charged the appellant with the theft of three horses, the property of T. T. Dew, in Lavaca county, Texas, on the thirteenth day of May, 1884. His trial resulted in his conviction of theft as charged in .the indictment, and his punishment was assessed at confinement in the penitentiary for the term of two years.</p> <p>T. T. Dew was the first witness for the State. He testified that he lived at “ Half Moon Timber.” on Rocky creek, in Lavaca county, Texas, about eighteen miles distant from Hallettsville, and about twelve miles distant from the house of Mrs. Foster, the mother of the defendant. On the day mentioned in the indictment, the witness went to the town of Flatonia, and returned home about sunset, when he was informed that his horses were missing. On the next morning witness went to Hallettsville, procured a warrant, and with P. D. Smith and deputy sheriff Robinson went to Mrs. Foster’s house, about ten miles distant from Hallettsville, at which house the defendant lived. Witness reached Mrs. Foster’s house at about two o’clock p. m., and there found Mrs. Foster, the defendant, and a young man whose name he ascertained to be Charles Kresta. He also found his three horses, standing in an enclosure near the gate. The horses being turned out of the lot, they moved off in a rapid gait towards home. One of the animals was a blaze faced bay mare, branded N on the left hip, 9 on the jaw, and TD, the witness’s brand, on the' shoulder. This last- brand was very dim. The second animal was a two year old sorrel filly, branded TD, and the third was a bay or brown yearling colt, branded TD. The animals described belonged to the witness, and ranged in a radius of a half mile from his house. No one had the-permission of the witness to take the animals.</p> <p>The defendant was arrested as soon as Mrs. Foster’s house was reached. The road which approached nearest the witness’s house was half a mile distant. On his way home, witness and his companions stopped at the house of John Otho, who lived about four miles from witness’s place, towards Mrs. Foster’s. Otho looked at the horses while witness was at his house. The road leading between the neighborhoods of the witness and the defendant passed through lanes and prairie, but all of the houses on the route were situated some distance from the road. Charles Kresta, who was present to testify, in this case, came to Mrs. Foster’s after the arrival of witness, Smith and Robinson.</p> <p>P. D. Smith, the next witness for the State, corroborated the witness Dew, and testified in addition that they met the defendant first at Mrs. Foster’s house. Shortly afterwards Kresta came out of the house, followed presently by Mrs. Foster. When Dew’s horses were turned out of the enclosure at Mrs. Foster’s, a bay pony followed them out, and was cut out of the bunch and turned back.</p> <p>John Otho was the next witness for the State.- He testified that he lived in Arthur Wood’s pasture, on Ponton creek, about four miles from Dew’s place, in Lavaca county. He was sitting on his gallery about sundown on the day of the alleged theft, when the defendant and Charles Kresta drove a small bunch of horses up to witness’s gate, and stopped. Kresta remained at the gate and the defendant came in and asked witness directions to the house of him, the defendant, on Mixon creek. Witness gave him directions and asked him if those were his horses, and if they had escaped from him. He replied that they were his, horses, but that they had not escaped, that he had been driving them around trying to sell them. Defendant then left, driving the horses towards Mrs. Foster’s house. The horses then in the possession of the defendant corresponded in age and color with the horses described by Dew.</p> <p>Cross-examined, the witness stated that he was not nearer the horses than fifty or sixty yards while they were in the possession of the defendant. Witness admitted that, on the examining trial, he testified that he did not know the man who came to his house with the defendant when he stopped with the horses to get directions home. Kresta was present at the examining trial, and the witness could not then recognize him. Witness now recognized Kresta as defendant’s companion on that occasion, only because he had been told that Kresta was the man.</p> <p>Charles Kresta testified, for the State, that he and the defendant left Mrs. Foster’s house on the morning of the alleged theft to go to Dutchtown and the Half Moon Timbers in search of horses. On their return, at about two o’clock, they found a brown or bay horse belonging to the defendant, and also the three horses in question. The defendant and the witness drove the four horses to Mrs. Foster’s house, and turned them into the enclosure or pasture near the house. They reached Foster’s house about midnight. The witness lived on the Foster place, and was in defendant’s employ. The witness remembered stopping at Ofcho’s place, in Wood’s pasture. . Defendant went in to get directions home, but witness heard nothing of the conversation between him and Otho. When they took the horses, the FT brand on the bay mare’s hip, and the TD brand on the other two horses were plainly seen, but the brands on the mare’s shoulder and jaw could not be seen—at least witness did not see them. The witness was at Mrs. Foster’s when Dew and Smith came and took the horses off. Those were the same horses he and defendant got in the Half Moon Timbers.</p> <p>Cross-examined, the witness stated that when defendant found the bay mare he called the witness’s attention to her and told witness that she belonged to Soule Airhart, and that Air-hart told him to look out for a mare branded as this one was, with an N on the shoulder and a numeral on the jaw. The 1ST was large and conspicuous, but the witness did not then, nor did he ever, see the other brands said to be on the mare. The enclosure into which the horses were put was in front of Mrs. Foster’s house, and was traversed by a public road, which road passed Mrs. Foster’s house at a distance of not more than a hundred yards. The country between the Half Moon Timbers and Mrs. Foster’s house was open prairie. No attempt was made' at concealment, but several houses were passed at short distances. They passed a house in the Half Moon Timbers within a short distance of where they took possession of the horses. They called to a man working in the field at that place, asked for some water, and how they could get out of the enclosure. The man pointed to some bars through which defendant, witness and the horses passed. They saw some ladies. sitting on the gallery of another house near by the one described. Defendant managed his mother’s place. The State closed.</p> <p>J. S. Airhart, called Soule Airhart, a constable of Lavaca county, was the first witness for the defense. He testified that in the spring of 1882 or 1883 he traded for three mares with George McGonagil, who lived on Rocky creek, some seven or eight miles south of T. T. Dew’s place. They were all branded N on the hip, and 6 or 9 on the jaw. One of the mares for which he traded was a smokey dun in color, one was a bay, and one a black animal. The dun mare had a blaze face, and one of the animals, witness could not say which, bad a gotched ear. The witness turned the animals into White’s pasture, near Moravia, from which the dun mare escaped, and she had never been recovered by the witness. A few days after the escape of the dun mare the witness met the defendant, described the mare to him, and told him that if 'he would get her for witness, witness would pay him five dollars, or that if he, defendant, thought the mare was worth twenty-five dollars, he could have her for that sum. Witness then lived within two miles of the defendant.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. G. H. Noonan. A term of three years in the penitentiary was the penalty assessed against the appellant upon his conviction, under an indictment, the charging part of which reads as follows: “ * * * * that George Witte, on the fourth day of the month of June, in the year of our Lord, one thousand eight hundred and eighty five, in said county of Bexar and State of Texas, did then and there fraudulently and feloniously steal, take and carry away a…

Tried below before the Hon. T. L. Hugent. This is one of the series of convictions had under an indictment charging the appellant, and Dave Smith, M. M. Smith, Tom Saunders, Frank Saunders and Bud Taylor with theft of cattle, the property in • separate parts of E. M. Trammell and W. A. Trammell. The punishment assessed against the appellant was a term of three years in the penitentiary.

Tried below before the Hon. T. L. Nugent. The appellant, Jim Smith, Dave Smith, Tom Saunders, Frank Saunders and Bud Taylor, were jointly indicted for the theft of five head of cattle, the property of Eugene M. Trammell, and eight head of cattle, the property of W. A. Trammell, in Erath county, Texas, on the fifteenth day of July, 1885. The appellant being alone upon trial, was convicted, and his punishment was assessed at a term of five years in the penitentiary.

Tried below before the Hon. T. L. Nugent. This is a companion to the preceding case of M. M. Smith v. The State, the conviction being for the same transaction, the theft of cattle, the property in separate parts of E. M. and W. A, Trammell. A term of four years in the penitentiary was the punishment assessed by the jury.

Tried below before the Hon. W. W. Brady, County Judge. The conviction in this case was for the theft of two sheep, of the value of two dollars each, the property of Margaret McNeeley, in Wise county, Texas, on the first day of February, 1885. The punishment assessed against the appellant was a fine of thirty-five dollars, and confinement in the county jail for the period of ten days. T. J. Chitwood was the first witness for the State.

Tried below before the Hon. R. Maltbie. The conviction in this case was for the forgery of an order, purporting to be the act of one George Eller, in Collin county, Texas, on the third day of July, 1885. A term of two years in the penitentiary was the penalty assessed by the verdict. P. B. Hatcher was the first witness for the State. He testified that he was engaged in the mercantile business in the town of Weston, Collin county, Texas.

Tried below before the Hon. J. P. Orr, County Judge. The conviction in this case was for unlawfully carrying a pistol, and the penalty imposed, by the jury was a fine of twenty-five dollars. The opinion sufficiently discloses the case.

<p>Appeal from the County Court of Grayson. Tried below before the Hon. E. P. Gregg, County Judge.</p> <p>The appellant in the case was convicted for wilfully obstructing a public road, and his punishment was assessed at a fine of fifty dollars.</p> <p>The opinion sufficiently discloses the case.</p>

Tried below before the Hon. T. L. Nugent. The conviction in this case was for the theft of four head of cattle, the property of Dave O’Neill, in Hood county, Texas, on the first day of November, 1881. A term of four years in the penitentiary was the penalty awarded. Dave O’Neill was the first witness for the State.

Tried below before the Hon. Griffin Ford, County Judge. The conviction in this case was for an aggravated assault upon the person of Allen Quisenberry,' and the penalty assessed by the jury was a fine of twenty-five dollars. The opinion discloses the case.

Tried below before the Hon. D. H. Scott. ' The conviction in this case was for an assault with intent to murder one A. S. Huff, in Lamar county, Texas, on the eighteenth day of June, 1885. A term of five years in the penitentiary was the punishment assessed against the appellant. A. S. Huff was the first witness for the State. He testified that he knew the defendant, and pointed him out in open court.

Tried below before the Hon. J. A. B. Putman. The conviction in this case was for the theft of a horse, the property of Mrs. M. A. Montgomery, in Hunt county, Texas, on the seventeenth day of April, 1883. A term of five years in the penitentiary was the penalty assessed against the appellant. The opinion sufficiently discloses the case.

<p>1. Practice—Judgment.—In civil cases the trial court has full control over its judgments until the adjournment of the trial term, and can, upon its own motion, set aside or reform the same, or grant a new trial according to the justice of the ease, upon the merits as well as matters of form. The same rule applies to misdemeanor cases; and hence the trial court, in this case, did not err in correcting its judgment during the term at which it was rendered, so as to make it appear therefrom that the appellant had been convicted of an aggravated assault.</p> <p>2. Aggravated Assault—Pact Case.—See the opinion in extenso for evidence held insufficient to support a conviction for aggravated assault.</p>

<p>Appeal from the County Court of Grayson. Tried below before the Hon. E. P. Gregg, County Judge.</p> <p>The penalty assessed against the appellant, upon his conviction for wilfully obstructing a public road by the erection of fences and a gate, was a fine of ten dollars.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. J. V. Cockrell. The conviction in this case was for the theft of one head of cattle, the property of Tom Waggoner, in Baylor county, Texas, on the third day of February, 1886. The penalty assessed against the defendant was a term of two years in the penitentiary. The State introduced first a certified copy of the register of the mark and brand of D. Waggoner.

<p>1. Burglary—Charge of the Court.—See the opinion for a special charge of the court in a trial for burglary, held properly refused, as being upon the weight of evidence, however correct as a legal proposition.</p> <p>2. Same.—The defense, in a trial for burglary, requested the trial court to charge as follows: “If you believe from the evidence that the defendant, when found in possession of the clothes, failed to give a reasonable account of his possession, then you may take these facts into consideration with all the other facts and circumstances in evidence, to enable you to determine whether the defendant is guilty of burglary as charged.” Held, that the charge was properly refused, because the fact of the defendant’s recent possession of the stolen articles was evidence competent to be considered in connection with the other facts proved, whether the defendant gave a reasonable or unreasonable, or no explanation of his possession.</p> <p>3. Same—Fact—Case.—See the statement of the case for evidence held sufficient to support a conviction for burglary.</p>

Tried below before the Hon. M. J. Hathaway, County Judge. The conviction in this case was for the violation of the local option law. The penalty imposed by the verdict was a fine of two hundred dollars.

<p>Habeas Corpus on appeal from the District Court of Tarrant, Tried below before the Hon. B. E. Beckham.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. R. E. Beckham. The opinion states succinctly, but amply and clearly, the proceedings in the court below, from which this appeal is prosecuted.

<p>Appeal from the County Court of Tarrant. Tried below before the Hon. Sam Furman, County Judge.</p> <p>The conviction in this case was for aggravated assault upon the person of Max Elser, and the punishment assessed by the jury was a fine of eighty dollars.</p> <p>The opinion sufficiently discloses the case.</p>

Tried below before the Hon. E. Gr. Bower, County Judge. The conviction in this case was for the slander of R. J. Huckaby, an unmarried female, by imputing to her a want of chastity, the slander consisting of the imputation that the said R. J. Huckaby was unchaste; that Ras Huffman was screwing her; that the said Ras Huffman had been seen in bed with her; that he had been seen on top of her in bed, and that he had been seen getting off of her.

Tried below before the Hon. S. M. Bradley, County Judge. The appellant in this case was convicted of the offense of exhibiting a gaming table, and his punishment was assessed at a fine of twenty-five dollars. , The opinion sufficiently discloses the case.

Tried below before the Hon. Sam. Furman, County Judge. The conviction in this case was for selling whisky on Sunday; a fine of twenty dollars being the penalty imposed. The motion for new trial raised the questions discussed in the opinion.

<p>1. Cattle Theft—Bill of Sale—Evidence—.The defense in a theft case admitted the execution of the bill of sale spoken of by the witnesses, but objected to the bill of sale itself as evidence, upon the ground that it was recorded by the county clerk in the wrong book. Held, that the objection was without merit.</p> <p>3. Same.—See the opinion for evidence held, under the circumstances of the ease, to have been properly rejected.</p> <p>3. Same.—Charg-e of the Court instructed the jury in a theft ease that, if “ they believed from the evidence that the defendant did not know that he had given or executed a bill of sale to said yearling, and that he, himself, believed at the time he sold it to Williams, that it was his own property, and that he had the right to sell it, then they should find the defendant not guilty.” Held correct, in view of the evidence in the case, and sufficient to present the hypothesis of the defense.</p>

Tried below before the Hon. J. A. B. Putman. The indictment in this case charged the appellant with the murder of Isaac McAdams, in Hunt county, Texas, on the sixth day of September, 1884. His trial resulted in his conviction of murder in the second degree, his punishment being affixed at a term of twenty years in the penitentiary. Yancey O. McAdams was the first witness for the State. He testified that he was a brother of the deceased', and that he knew the defendant.

Tried below before the Hon. R. Maltbie. The indictment charged the appellant with the murder of one Emmet Johnston, on the first day of January, 1884, in Collin county, Texas. The trial resulted in his conviction for manslaughter, and his punishment was affixed by the jury at a term of two and a half years in the penitentiary. The opinion sufficiently discloses the case.

<p>1. Right of Self Defense—Charge of the Court.—It is a well settled principle of law that, when a person seeks or brings on a difficulty, and arms himself with a deadly weapon, with the intention of taking life or doing some serious bodily harm, and he willingly enters into such difficulty, and takes life, he can not claim the benefit of the law of self defense. See the opinion in extenso on the' question, and the statement of the case for charges of the court upon the subject, held, correct.</p> <p>2. Same.—The evidence in this ease tended to establish the defensive theory that the accused did not provoke the difficulty with the view of obtaining a pretext to kill, but that, if he, in fact, provoked the combat or produced the occasion, he did so without any felonious intent, his intent being only to commit a battery. If so, the killing, if committed to save his own life, would be manslaughter. Under the circumstances of this case this theory should have been submitted to the jury by the charge of the court, and the omission was error.</p>

<p>Appeal from the District Court of Hunt. Tried below before the Hon. J. A. B. Putman.</p> <p>The conviction in this case was for an assault with intent to murder one H. 0. Poindexter, in Hunt county, Texas, on the fifteenth day of January, 1885. The penalty assessed against the appellant was a term of five years in the penitentiary.</p> <p>H. 0. Poindexter was the first witness for the State. He testified that on the fifteenth day of January, 1885, he was living at the house of Andrew Hefner, in whose employ he had been since late in the year 1884. Hefner lived on the old Slack place, about five miles north of Greenville, in Hunt county. From the sitting room in which Hefner’s family were sitting, the witness, about nine o’clock on the night of February 15, 1885, started to bring a bucket of water. When he reached, and partially opened, the side door of the room, which was directly opposite the fire place, he saw a man standing on the edge of the gallery in front of the door. Witness did not recognize the man, but immediately closed the door, ran back into the house and got his pistol. Returning, the witness threw the door wide open, and by means of the light thrown from the sitting room, saw and recognized the defendant. ' Defendant turned and fled toward the gate. Witness followed into the yard. When the defendant reached a point fifteen or twenty steps from the gallery, he turned and opened fire on the witness. The witness then fired on the defendant, and advanced on him until both of them got some distance beyond the gate. When the defendant reached a point a short distance beyond the lot, he was joined by one or two other parties, who engaged in the fight. The defendant and his companions fired several shots. Witness fired four shots from his own pistol, retired, got Hefner’s pistol, returned and fired two more shots- Hefner came out about the time the last shot was fired by witness, and called to the parties that if they would come from cover they should have fair play. The parties then left. They had their horses hitched near the house. Eighteen empty cartridges were found on the field of battle next morning. One of the balls fired by the parties passed through witness’s coat.</p> <p>Cross-examined, the witness testified that he was shot by the defendant in a previous fight with him in September, 1884. Though the witness, when he first opened the door and saw the man on the gallery, failed to recognize the defendant, he felt confident that the man was the defendant, and that he had come to Hefner’s house to kill witness. Witness and defendant were not on good terms. Defendant made no demonstration as if to shoot, when witness first went to the door. He made no effort to shoot when witness went outside with his pistol, but fled towards the gate. Witness did not see the pistol in the defendant’s hand. When defendant turned and fired at witness, witness saw the blaze from the pistol. Witness was then stooping, endeavoring to get a sight of defendant. He had not then fired, nor did he fire until the defendant fired his first shot. Witness could not say exactly how many shots were fired during the engagement, but on the next morning eighteen empty cartridges were found on the ground of the fight.</p> <p>A. C. Hefner testified, for the State, that he retired early on the night of February 15, 1885, leaving Poindexter and the members of his, witness’s, family, sitting about the fire. About nine o’clock on that night, Poindexter started with a bucket to get some water. From the door of the sitting room, Poindexter ran back into the house, calling for his pistol. He secured his pistol and went out of the house, and within sufficient time for him to reach a point fifteen or twenty steps from the house the shooting began. Witness was unable to say who fired the first shot, or how many shots, in all, were fired. When he got out of the house, the witness saw the flashes of the pistols, which indicated that firing was done from two or three different directions. Poindexter was then shooting his pistol. The night was cold and dark, and witness was not able to recognize any of the parties shooting at Poindexter. Witness called to tifie parties that, if they would show themselves and fight fairly, they s'hould have fair play. The parties opposed to Poindexter then mounted their horses and rode of. Eighteen empty cartridge shells were found the next morning on the ground.</p> <p>Cross-examined, the witness said that he had lived several years in the neighborhood, and knew the defendant. He had no recollection of seeing the defendant in the neighborhood in January, 1885, or at any other time since the fall of 1884. Witness heard of the difficulty between defendant and Poindexter in September, 1884, since when he had never seen the defendant. Witness did not know that the defendant was one of the parties who were at his house on the night of the shooting.</p> <p>Charles Matthews testified, for the State, in substance, that he lived within a few hundred yards of Hefner’s house in January, 1885. On the night of the fifteenth day of that month, witness heard some parties,—two, he thought,—pass his house horseback, going towards Hefner’s house. He did not see the parties, and, of course, had no idea who they were. A few minutes later, witness heard some fifteen or twenty shots fired at or near Hefner!s house. Witness knew Poindexter, but did not know the defendant. If witness had ever seen defendant in that neighborhood, he did not remember it. The State closed.</p> <p>W. E. Havens testified, for the defense, that he knew defendant during and prior to the year 1884. He heard of the difficulty between defendant and Poindexter in September, 1884, when the former shot the latter. Witness saw nothing of the defendant from September, 1884, until the summer of 1885, when he returned and surrendered. If defendant had been in Hunt county during the time between September, 1884, and the summer of 1885, witness thought he would have seen him. Defense closed.</p> <p>M. L. Hale testified, for the State, in rebuttal, that he hunted defendant with a capias several months during 1885, but was unable to find him.</p> <p>J. J. Hubbard testified for the State, in rebuttal, that it was his impression that he saw the defendant at Mrs. Dean’s house, in Hunt county, in January, 1885.</p> <p>The defendant’s motion for new trial was supported by the affidavits of C. C. Christian, J. H. Maynard, and J. J. Terrett, to the effect that, to the knowledge of the affiants, the defendant was at and about the neighborhood of Oakes’s ferry, in Lamar county, Texas, during and throughout the month of January, 1885. The motion otherwise raised the question discussed in the opinion.</p>

Tried below before the Hon. S. M. Bradley, County Judge. The conviction in this case was for exhibiting a gaming table, for the purpose of. gaming, etc., and the penalty imposed was a fine of twenty-five dollars. The opinion sufficiently discloses the case.

Tried below before the Hon. J. P. Orr, County Judge. The conviction in this case was for disturbing the peace, by cursing and swearing on a public street of the town of Vernon. The penalty imposed by the verdict was a fine of twenty dollars. Sheriff G. T. Douglass was the only witness who testified on the trial of the defendant, who is disclosed by the evidence to be a woman.

Tried below before the Hon. J. F. McKee, County Judge. The conviction in this case was for wilfully driving stock upon the enclosed land of another, and the penalty imposed was a fine of ten dollars. Dick Griffin was the first witness for the State. He testified that he owned a small tract of land adjoining Chailotte Herran’s land on the south, and defendant owned a small tract adjoining Charlotte Herran’s on the north.

Tried below before the Hon, A. S, Walker, The first count in the indictment in this case charged the appellant with the unlawful, wilful, and fraudulent driving of a certain head of cattle, the property of Larry Hughes, from its accustomed range, without the consent of the owner. The second count charged him with the theft of the animal. Both counts alleged the venue in Travis county, Texas.

Tried below before the Hon. G. H. Noonan. The conviction in this case was for wilfully obstructing a public road, by fencing on the same. The penalty assessed against the appellant was a fine of eighty dollars.

Error from the County Court of Bexar. Tried below before the Hon. G. H. Noonan. The writ of error in this case was prosecuted from a judgment final forfeiting the appearance bond of Alexander Reddick, bailed under a charge of dealing monte. The amount of the bond and judgment was $160.

Tried below before the Hon. H. Teichmuller. The indictment in this case comprised two counts, the first charging the appellant with the forgery of an order for the payment of thirteen dollars and ninety cents, and the second for the uttering of the said order, knowing it to be forged. The verdict of the jury found the appellant guilty as charged in the indictment, and assessed his punishment at confinement in the penitentiary for the term of two years.

Tried below before the Hon. J. A. Wolfe, County Judge. The conviction in this ca,se was for an indecent exposure of the person at church, a public place in the town of Melissa, in Collin county, Texas, on the fifth day of August, 1885. The penalty imposed by the verdict was a fine of seven dollars and a half. The opinion sufficiently discloses the case.

Tried below before. the Hon, F. E. Finer, A life term in the penitentiary was assessed against the appellant, upon his conviction for murder in the first degree, under an indictment, the charging part of which reads as follows: “ * * * * * That J. M. Smith, on the thirteenth day of October, in the year of our Lord, 1885, with force and arms, in the county and State aforesaid, did then and there unlawfully, wilfully, and with his express malice aforethought, kill and murder…

Tried below before the Hon. N. Gr. Kittrell. The conviction was for an assault with intent to rape one Virginia Franklin, in Brazos county, Texas, on the fourth day of March, 1886. The penalty imposed by the jury was a term of seven years in the penitentiary. Mrs. Virginia Franklin was the first witness for the State. She testified, in substance, that in March, 1886, she and her husband lived in Bryan, Brazos county, Texas.

Tried below before the Hon. J. F. McKee, County Judge. The conviction in this case was for an aggravated assault upon the person of John Wilson, in Guadalupe county, Texas, on the tenth day of April', 1885. A fine of twenty five dollars was the penalty assessed against appellant. John Wilson, the first witness for the State, testified that he was the party upon whom the assault was made by the defendant.

■ Appeal from the County Court of Shackelford. Tried below before the Hon. E. M. Norman, County Judge. The conviction in this case was for pursuing the occupation of an attorney at law, without first having paid the tax levied upon such occupation. A fine of seven dollars and a half was the punishment imposed by the verdict. The opinion discloses the case.

. Tried below before the Hon. George H. Noonan. The conviction in this case was had upon an indictment which charged the appellant with the theft of twenty-five hundred dollars in money, the property of E. S. Woods, in Bexar county, Texas, on the nineteenth day of January, 1885. A term of two years in the penitentiary was assessed against the appellant as punishment. ■ E. S. Wood was the first witness for the State.

Error from the District Court of Kerr. Tried below before the Hon. T. M. Paschal. The writ of error in this case was prosecuted from a judgment final upon the bail bond of Riley Ware, held under an indictment for theft of a horse. The amount of the bond and judgment was twelve hundred dollars,

Tried below before the Hon. W. H. Burkhart. The indictment charged the appellant with the offense of robbery, and the conviction was for assault with intent to murder. The punishment assessed by the jury was a term of four years in the penitentiary. The record brings up no statement of facts, the appeal being prosecuted on the one question discussed in the opinion.

Tried below before the Hon. H. P. Jones, County Judge. A fine of ten dollars in each case was assessed against the appellant, upon his conviction for performing labor on Sunday. The opinion states the cases.

Tried below before the Hon. J. A. Crews, County Judge. . The conviction in this case was for exhibiting in Burnet county, Texas, on the twentieth day of February, 1884, a gaming bank, the penalty imposed being a fine of twenty-five dollars.

Tried below before the Hon. E. K. Taylor, County Judge. The conviction in this case was for the theft of three hogs, of the value of twelve dollars, the property of D. A. Farris, in Palo Pinto county, Texas, on the tenth day of April, 1885. A fine of ten dollars was the penalty imposed upon the appellant. Dorcas Ann Farris was the first witness for the State. She testified that she lived in the town of Palo Pinto.

Tried below before the Hon. A. W. Dillard, Special Judge. The conviction in this case was for the theft of a horse, the property of L. Schwartz, in Uvalde county, Texas, on the twenty-second day of March, 1885. The penalty assessed against the appellant was a term of ten years in the penitentiary. L. Schwartz was the first witness for the State. He testified that he lived in the town of Uvalde, Uvalde county, Texas.

Tried below before the Hon. R. E. Beckham. The appeal in this case was prosecuted from a judgment on the forfeited bail bond of Bud Garrison, held under a charge of cattle theft. The amount of the bond and judgment was five hundred dollars.

Tried below before the Hon. H. A. Porter. The conviction in this case was for carrying a pistol, and the penalty imposed was a fine of twenty-five dollars.

Tried below before the Hon. R M. Norman, County Judge. The conviction in this case was for fornication, by living together and having carnal intercourse, etc., and the penalty imposed on appellant was a fine of fifty dollars. Amanda Aken was joined in the indictment, and was jointly tried, but was acquitted. Jack Williams was the first witness for the State. He testified that he lived in Fort Griffin, Texas, in which town both of the defendants lived.

Tried below before the Hon. G. L. D. Adams, County Judge. The conviction was for failing, as a butcher, to make report of animals slaughtered. The’ penalty imposed by the verdict was a fine of fifty dollars.

Tried below before the Hon. R. E. Beckham. The indictment sought to charge the appellant and Adam Carpenter with an assault to murder one John Long, in Parker county, Texas, on the tenth day of May, 1884. The appellant being alone upon trial was convicted of an aggravated assault, and his punishment was assessed at a fine of twenty-five dollars, and thirty days confinement in the county jail.

Tried below before the Hon. J. C. Oatman, County Judge. The conviction in this case was for selling beer on Sunday. The penalty assessed against the appellant was a fine of twenty-five dollars. The opinion discloses the case.

Tried below before the Hon. M. J. Hathaway, County Judge. Held: as aforesaid, that there were cast “For Prohibition,” two hundred and sixteen (216) votes, and “Against Prohibition,” ninety-four (94) votes, and that the majorities of the only and legally qualified voters of said justice’s precinct Ho. 2, in said county, voting at the said election did vote “For Prohibition:” “How, therefore, it is…

Tried below before the Hon. R. M. Herman, County Judge. The appellant in this case was convicted for keeping a disorderly house, and her punishment was assessed at a- fine of one hundred dollars.

<p>1. Scire Facias—Practice— Evidence.—The defense in a scire facias proceeding upon a forfeited bail bond pleaded the general denial, and that the principal failed to appear in court because of sickness. The bail bond was not introduced in evidence by the State, and the trial judge held, in his conclusions of law, that the only issue in the case was the sickness of the principal at the appearance term, and that the bond was not necessary evidence in the case. Held, error. The effect of the general denial was to traverse every allegation contained in the scire facias, including the execution of the bond, and the bond was indispensable evidence to authorize a judgment for the State.</p> <p>2. Same—Interpretation op the Codes.—Article 456 of the Code of Criminal Procedure can not be construed to limit the appearance of the principal before final judgment to a voluntary appearance. His appearance before entry of final judgment, whether voluntary or involuntary, requires the court to set aside the forfeiture of his bail bond, provided he shows good cause why he did not appear in court as stipulated in the bond. The trial court, therefore, erred in holding that, as the principal’s appearance was compulsory, his defense of sickness could not avail him.</p>

Tried below before the Hon. R. E. Beckham. The conviction in this case was for an assault with intent to murder one S. L. Smith, in Parker county, Texas, on the twenty-second day of July, 1885. The penalty assessed against the appellant was a term of two years in the penitentiary. S. L Smith was the first witness for the State. He testified that in July, 1885, he lived in Parker county, Texas, about eight miles distant from Weatherford.

Tried below before the Hon. I. B. McFarland. The conviction in this case was for the rape of Anna Knuppel, in Washington county, Texas, on the twenty-sixth day of January, 1886. A form of ninety-nine years in the penitentiary was the penalty imposed by the jury. Anna Knuppel was the first witness for the State. She testified that she lived with her father, Frederick Knuppel, in Washington county, Texas, about four miles south of the town of Brenham.

Tried below before the Hon. Gr. N. Aldredge. The appellant in this case was charged by indictment with the murder of John Andrews, in Dallas county, Texas, on the fourth day of July, 1885. His trial resulted in his conviction of murder in the second degree, his punishment being assessed at a term of five years in the penitentiary. J. S. Raw lings was th,e first witness for the State. He testified as follows: “ I live in Dallas county, and have lived there since 1848.

Tried below before the Hon. I. B. McFarland. The conviction in this case was for the burglary of the house of Grlenn Ford and C. Lively, alias C. Washington, in Washington county, Texas, on the fifteenth day of July, 1885, with intent to commit theft. The penalty imposed by the jury was a term of two years in the penitentiary. Grlenn Ford was the first witness for the State.

Tried below before the Hon. R. E. Beckham. The conviction in this ca.se was for the theft of a horse, the property of B. H. Smith, in Parker county, Texas, on the twenty-eighth day of April, 1885. A term of five years in the penitentiary was the penalty awarded the appellant. Scott v. The State, the companion case to this, will be found reported on page 325 of the nineteenth volume of these Reports.

Tried below before the Hon. R. G. Childress, County Judge. The conviction in this case was for disturbing the peace by loud talking, cursing and swearing, and the penalty imposed by the jury was a fine of five dollars.

Tried below before the Hon. O. E. Dunlap. The conviction in this case was for a violation of the “ local option ” law, and the penalty imposed was a fine of twenty-five dollars.

<p>Appeal from the District Court of Kimble. Tried below before the Hon.' A. W. Moursund.</p> <p>The indictment in this case charged the appellant, jointly with Tony Menges, Reinhart Menges and William Menges, with the theft of a steer, the property of Wiley Anderson, in Kimble county, Texas, on the fifteenth day of June, 1884. The appellant, being alone upon trial, was convicted, and his punishment was assessed at a term of two years in the penitentiary.</p> <p>Wiley Anderson was the first witness for the State. He testified that in July, 1884, he went to the town of Junction City, in Kimble county, Texas, to search a herd of cattle there in charge of the hide and animal inspector, G. W. Hodges, for a two year old steer belonging to him, which he was informed was in the herd. He found the herd in charge of the said Hodges, near the residence of Mr. Schulter, and among the cattle composing the herd he found his animal, which he recognized at once by ear marks, brand, and flesh marks. The witness’s brand was WA, and his ear marks were a swallowfork in each ear and an under bit from the right ear. The brand on the animal had been changed by branding an A below the original' A, and by adding a down stroke to the last stroke of the W, and a down and up stroke to the first stroke of the W, changing the original W to WM connected. The ear marks had not been altered. Witness saw other “burned” cattle in the herd, but could not recollect any of the original or changed brands. Quite a number of people from the lower country were present, examining the herd, on the Sunday when witness got his animal. The witness had not seen his animal for eight or ten months before he found it in the said herd. The range of the animal, when in the witness’s possession, was near his place on Big Paint creek, in Kimble county, near the Edwards county line. That animal sometimes crossed the line into Edwards" county, but its usual and principal range was in Kimble county. The steer described was raised and owned by the witness, and was taken from his possession without his knowledge or consent. The witness did not know the defendant on trial, nor either of the other defendants, at the time of the disappearance or recovery of the animal. All of the original brand except the A appeared to have been burned over, the lower A added, and the W changed as stated, when witness recovered the animal. The change appeared to be about three weeks old, or perhaps a little older.</p> <p>Cross-examined, the witness testified that the animal described in the indictment was a white faced, red animal, over two years old when recovered. Its principal range was west and south west, in the direction of the Edwards county line. Witness could not say how often he had seen the animal in Edwards county, but had much of tener seen it in Kimble county. Witness owned about one hundred head of cattle, the larger number of which ranged about his place, or within ten or fifteen miles of it. The range of some of his cattle was as far from home as forty or fifty miles. Cattle in Kimble county were in the habit of drifting considerably during the winter months, the “ drift” generally tending south and south west towards Edwards and Kerr counties. Witness saw the animal involved in this prosecution on his home range during the summer and fall of 1883, but failed to find it during the winter of 1883. He could not remember when he last saw it in Edwards county. The witness first saw the defendant in jail, after he recovered the animal from the herd as detailed.</p> <p>G. W. Hodges testified, for the State, that he was hide and animal inspector of Kimble county in 1884. During that year, the prosecuting witness, Wiley Anderson, claimed and recovered a steer from a herd in the possession of the witness. The original mark and brand on that animal were as described by Anderson, and the brand had been changed as described by Anderson. Anderson got that animal from the witness on or about June 25, 1884." A few days before, the witness, with a party, acting upon certain information, started in pursuit of a bunch of cattle. They struck the trail of the cattle near Beaver lake, whence it went to and up a creek, and thence over a mountain. A short distance beyond the mountain the party met Erich Cloudt and Buchanan, and divided, one party with the witness going forward over the trail, and the other party, under the sheriff, going back over the trail. At a point a day’s drive beyond Beaver lake, which was a hundred miles distant from Junction City, the witness and his party found the cattle in a pen, in the possession of L. S. Wooten and Joe Cloudt, Wooten being in charge. Wooten offered to turn the cattle over to witness. The herd numbered either two hundred and thirty-six or two hundred and forty-six head, and included the Wiley Anderson steer described in the indictment. He also found one of his own animals in that herd, the brand on which had been changed. About ten days after the herd was taken by the witness, the prosecuting witness, Anderson, appeared and got his steer. Tony and Reinhart Menges were with the drove of cattle when they were taken by the witness a.nd his party. Sheriff Gorman and James Clements arrested the defendant and William Menges, and brought them to the herd on the day after the herd was taken by the witness. The herd contained cattle belonging to other parties than witness and Wiley Anderson, including Latham, Light, James Clements, and the firm of Clements & Taylor. The brand on the Clements & Taylor animal had been recently altered. The several brands appeared to have been changed about the same time. At least one hundred and fifty brands had been changed, and the changes were all plain.</p> <p>Cross-examined, the witness testified that he first saw the family of the defendant at Beaver lake, about eighteen miles distant from the point where the herd of cattle was found. The family were not with the cattle, nor did the witness know, of his own knowledge, whence they came to Beaver lake. He did not know, of his own knowledge, that they reached the lake on the same day that he, witness, did. The pen in which the cattle were found was in Crockett county, about sixty miles distant from the nearest point in the Kimble county line. The burning over of an old brand shows plainly in the deeper lines of the brand. Witness did not see defendant and William Menges with the cattle, nor did he see them until the day after he took charge of the herd. Witness did not know, except by the marks and brands, and claims of ownership, to whom the animals belonged that were taken from the herd by the several claimants. The defendant and his co-defendants were in jail, and were not present when the several animals were claimed and proved by their owners. The majority of the cattle claimed from the herd were claimed by people living in the lower country. In the winter of 1883 many cattle on the Kimble county ranges drifted toward the Gaudalupe and Perdinales rivers. The witness did not know whether the animals he owned and found in the herd drifted off in the winter of 1883 or not. He knew nothing about the ranges of the several cattle composing the herd.</p> <p>Erich Cloudt testified, for the State, that he saw some of the Mengeses named in the indictment on Big Devil’s, river, in Gillespie county, Texas, below Beaver lake, in June or July, 1884. Tony Menges and the youngest of the others had a drove of cattle at their camp. That drove contained one head of the witness’s cattle, the brand on which had been changed. The range of that animal had been near the witness’s ranche in Kimble county, about thirteen miles from Junction City. The witness and his brother, Mr. Buchanan and old man Wooten were together when the herd of cattle were found by witness. The defendant was not then with the herd. Among the cattle in that herd, the witness identified a bull which belonged to Mr. Gardiner, who lived in Menard county on the Llano river. The animal’s brand had not been changed. The brand on another animal which belonged to James Clements had been partially changed, and the animal counterbranded. The several brands had been changed at different times. Some of the changes were a week old, and others were three weeks old. Witness knew nothing about Wiley Anderson’s animal or its range.</p> <p>James Clements testified, for the State, that he had known William Menges for a considerable time, but saw the defendant and Tony and Reinhart Menges for the first time on the third day of July, 1884. Witness, sheriff Gorman, Mr. Hodges, Mr. Mills, Mr. Corder, Mr. Sam Taylor, Mr. Latham, and others, went together in pursuit of the herd of animals described by previous witnesses. Another party of gentlemen went in advance of the witness and his party, on the same mission. When that party was overtaken by the witness and his party, they had two men under arrest. The party divided when it struck the trail of the herd, that fragment of which witness was a member going to the Menges camp, where they found the family of one of the Mengeses. A broken down wagon was in camp, and the ground showed that cattle had been about the camp. The camp was found at a point about five miles distant from where the party divided. On' the next morning the Menges family was taken to Beaver lake, where the party with the cattle was joined. Witness found three head of his cattle in that herd. The brands on those three animals had been run over and changed, but the ear marks were intact. Witness did not know where those particular animals ranged, but his ranch was on the Little James river, in Kimble county, about twenty miles distant from Junction City. Those animals were taken without the witness’s consent.</p> <p>Cross-examined, witness said that he knew nothing about the Wiley Anderson animal. Defendant and William Menges were at work on the broken wagon when the witness and his party reached their camp. That camp was about twenty-five miles from Beaver lake, where witness first saw the herd. J. H. Clements, one of the jurors trying this case, was the witness’s brother. Defendant was under indictment for stealing witness’s cattle.</p> <p>Ben Corder testified, for the State, that he went to Beaver lake with the sheriff and others to look after the herd of cattle described by previous witnesses. On the trail, Erich Cloudt and others were met. Witness, Norris, Cloudt, Hodges, and others, then went to the herd, with which they found two of the Menges boys. Two of the witness’s animals were found in that herd. The brands on each had been changed by burning over. Witness raised those cattle in McMullen county, bfought them to his present ranch, at the mouth of Johnson creek, six or seven miles from Junction City, and turned them loose. The witness had never before seen any of the Mengeses before he recovered his said cattle. Those animals were taken from the witness without his knowledge or consent. The herd contained at least a hundred head of cattle on which the brands had been recently changed. Two of the defendants were found with the herd, and two were found at their camp.</p> <p>Cross-examined, the witness testified that the cattle were found at a point about ten miles distant from where the trail was first discovered. The pursuing party separated at the point where they found the trail, and the pen containing the cattle was reached after dark. The}’" were found about five miles below Fort Hudson, and about eighteen miles from Beaver lake. Wooten, Buchanan, Haynes, Cloudt, and others, were with the cattle. Sam McCaleb and others were with witness. Witness did not know the Menges boys by their given names, and was unable to identify those found with the cattle by their given names. Had witness’s animals started back to McMullen county, they would have gone through Edwards or Kerr counties. They were driven to Kimble county from McMullen, through Kerr county. The Menges boys with the cattle had no camping utensils with them, unless, perhaps, they had a coffee pot.</p> <p>S. L. Wooten testified, for the State, that he saw the Menges boys on Devil’s river. Witness went with a party to search the herd of cattle driven by the Mengeses, for stolen animals. Animals belonging to Hodges, Anderson, and Cloudt, were found in the herd, but none belonging to witness. Witness was one of the party which overtook the herd in charge of two of the Menges boys, whom they arrested. The Menges boys with the cattle had some cooking utensils with them. The two Menges boys with the cattle were asked if they owned the cattle, and when they replied' that they did, they were arrested.</p> <p>Cross-examined, the witness testified that the herd was overtaken about fifteen miles from Beaver lake. The animals were penned that night, when George Hodges and the parties with him arrived. Witness did not know which of the Menges boys was Peter. He knew nothing about the cattle except by their brands.</p> <p>Joe Cloudt testified, for the State, that he had known two of the Menges boys for about four years. He knew them on Live Oak creek, in Gillespie county. One animal belonging to the witness’s brother Erich, and one belonging to Anderson, were found in the herd of cattle found in the possession of the two Menges boys. Those two animals ranged near the Cloudt ranche, in Kimble county, about ten miles from the county line. Witness saw Anderson’s animal on the range in the winter of 1883. Witness,-his brother Erich, Buchanan and Wooten, went together to look after cattle in the herd described. The trail of cattle was discovered about nine or ten o’clock, and was followed until the herd was overtaken. Defendant and William Menges, both-of whom witness knew, were not with the herd. Witness first saw him at Beaver lake, after the cattle were taken in charge by the sheriff. Witness was unable to say whether the defendant and William Menges had -any cattle in the herd or not. The herd contained animals in old man Menges’s brand.</p> <p>Cross-examined, the witness said that the wagon used by defendant and William Menges, and the family of one or the other of them, was not first seen by him at a point between the point at which the trail was discovered and the place where the herd was overtaken. Witness last saw Anderson’s animal on the range in the winter of 1883. He often saw that animal on the range, and never saw it above five miles from home.</p> <p>On re-direct examination, the witness was asked if he did not tell Anderson that he saw the animal in the spring of 1884. He replied that he “said he told Anderson in the spring, when he was hunting the animal, that he saw the same during the previous winter.” Witness saw that animal on the range in the “dead of winter,”—February, perhaps—and it may have been early in the spring of 1884. The two Menges boys with the cattle had meat wallets and pack horses, but witness saw no utensils in which bread and meat could be cooked.</p> <p>Erich Cloudt, recalled for the State, testified that he remained with the crowd in charge of Tony and Reinhart Menges, and the herd, until Beaver lake was reached. Either Tony or Reinhart got some article of clothing out of the wagon, but witness did not know what it was.</p> <p>The State next introduced in evidence the certificate of the county clerk of Gillespie county, Texas, setting out the various marks and brands recorded in that county in the names of the several members of the Menges family. G. W. Hodge, being recalled by the State, testified that the herd contained animals in the brand of William Menges and defendant, and in several other brands set out in the certificate. Some of them were “straight” brands—that is, brands that had not been disfigured.</p> <p>• S. L. Wooten, recalled, testified, for the State, that when the herd was overtaken, the two Menges boys in charge were asked who owned the cattle. They replied that they and their two brothers, who were detained behind with a broken wagon, owned all save a few which belonged to one Phillips. The arrest was not made until after this statement. The talking was done by Reinhart Menges. He spoke of his brothers, but called no names, as the owners of the cattle.</p> <p>District clerk A. J. Wilson testified, for the State, that two or three months ago he heard that John B. Gorman was in New Mexico. Gorman left Kimble county in October, 1884. Witness had issued process for him since then, but not recently. He did not know as a fact whether the said Gorman was in or out of Texas.</p> <p>Mrs. John B. Gorman testified, for the State, that she did not know the present whereabouts of John B. Gorman. She had not received a recent letter from him. His last letter to witness was received about a month prior to this trial. It was written from a point in the United States, but not in Texas. Witness did not observe the post mark on the envelope, but knew that her husband was not in Texas. The testimony of this witness and the witness Wilson constitutes the predicate upon which Gorman’s written testimony was admitted, and is the subject matter of the ruling upon which this appeal is disposed of.</p> <p>Justice of the peace Bradshaw identified a certain instrument of writing as the testimony of John B. Gorman, upon the examining trial of the defendant for the theft of the Hodges animal. The same was then read in evidence by the State, over the objection of the defendant.</p> <p>In substance, Gorman testified on the said examining trial that he first saw the defendant at the mouth of Dolan’s creek, on Devil’s river. Witness went to Beaver lake with Hodges and others. At Beaver lake witness learned that the cattle could be' found at the mouth of Dolan, and with his posse he set out for that point. They found a cattle trail about five miles above the mouth of the said creek. At that point they met Erich Oloudt, Buchanan, and Norris, who told him that the Menges brothers were at the mouth of Dolan. Witness took Norris and others with him, and reached the camp of defendant and William Menges about dusk, and arrested the said William and defendant. Seven head of cattle about the camp were claimed by the parties with witness. Witness warned defendant and William against making statements, but they said they had bought and paid for- the cattle; that defendant and Reinhart were hired hands, Peter having recéntly sold his interest in the cattle. Witness did not see among the cattle any that he knew whose •brands had been changed into Peter’s brand, but he saw that brand fresh in the herd.</p> <p>Cross-examined, the witness said that when he arrested the defendant, the latter was at work on a broken wagon near the mouth of Dolan creek on Devil’s river. A woman and three children, claimed by defendant to be his family, were in the camp. Witness did not know where the main herd of cattle was on July 3, 1884, when he arrested the defendant, but he saw the herd at Beaver lake on the evening of July 5. Defendant claimed that he had sold the cattle in his brand to his brothers. Witness never, at any time, saw the defendant in possession of the cattle. The herd was not driven over a road, but over a trail through a rough and secluded section of country. William Menges claimed full and absolute control of the cattle, and defendant claimed to have nothing to do with them. The parties claimed that they were hunting water and grass for their stock. Witness knew of no better route through that country than that traveled by defendant and his co-defendants with the herd.</p> <p>William McCaleb testified, for the State, that he had seen the Menges boys, but did not know them apart by their given names. The witness first saw a bunch of cattle at Beaver lake, in charge of two men, before the arrest of the Menges boys. One of the men in charge of these cattle told witness that his name was Menges, and that one of his hands had gone to Del Rio for supplies. Two or three days later, witness again saw the herd at Beaver lake, then in charge of three men. A wagon, a woman, and some children were then in the camp. Among the cattle in the herd the witness recognized one animal belonging to James Clements, and one belonging to Erich Cloudt. The brands on each of those animals had been recently changed.</p> <p>Cross-examined, witness said that he did not know the parties with the herd when he first saw it, and knew that one of them was named Menges only by his saying so. Witness did not know Peter Menges, and could not say that he was or was not one of the men he saw with the herd. It was two or three weeks before the arrest of the Mengeses that witness first saw the herd at Beaver lake. He did not know how long the herd had been there, but, judging from appearances, he thought ten days would cover the time. Witness could not swear that he saw more than one of the Menges boys with the herd, and he knew him to be a Menges only because he claimed that name.</p> <p>On re-direct examination, the witness testified that the woman and children were not with the cattle when he first saw them. Witness traveled a short distance with the wagon en route to the cattle. The parties in the wagon said that they had been to Del Rio for supplies and were going to a cattle camp. Witness did not know who the man with the wagon was. He did not know Peter Menges.</p> <p>Ho evidence was introduced by the defense upon the trial of the main case. One of the grounds assigned in the motion for new trial was that one of the jurors was too drunk to hear and determine the evidence, and in support of that ground the defendant introduced several witnesses who testified that when the jurot was first impaneled he appeared to be sober. The panel was completed just before adjournment for dinner, and the jurors were dismissed for dinner, without having been sworn, and were permitted to separate and go where they pleased, unattended by an officer, during adjournment. When, after dinner, the jury were placed in the box and sworn, the said juror appeared to be quite drunk. He took a standing position behind the district attorney while that officer was reading the indictment, and a seat before the witness Anderson while he was testifying from a paper in his hands. Hone of the several witnesses could'Swear positively that the juror was too drunk to understand the evidence and pass upon it intelligently, though one witness, who had been drunk himself, knew that, if drunk to that degree himself, he would be unable to attend to business.</p> <p>In opposition to the motion, the State filed the affidavit of the juror himself to the effect that he was not too drunk on the trial of the case to understand and consider the evidence on the trial. On the contrary, he did understand and consider it as well as he could have done under any other circumstances. This affidavit was supported by the affidavits of three other jurors to the effect that the said juror was not mentally or physically incapable of understanding and considering the evidence adduced on the trial. On the contrary, his discussion of the same, in the retirement of the jury, disclosed the fact that he fully understood and appreciated it.</p>

Tried below before the Hon. A. W. Parham, County Judge. The conviction in this case was for wilfully shooting and wounding a horse, the property of B. F. Keltz, in Hill county, Texas, on the fifth day of January, 1885. A fine of fifty dollars was the penalty imposed by the verdict.

Habeas Corpus on appeal from the District Court of Throckmorton. Tried below before the Hon. J. V. Cockrell. The. appellant was held under a capias charging him with a violation of the “local option” law.

Tried below before the Hon. J. E, Crawford, County Judge. The conviction, in this case was for unlawfully carrying a pistol, and the penalty imposed by the verdict was a fine of twenty-five dollars. The single witness examined testified, for the State, that, in September, 1883, he and Mr. Hughes met the defendant in his buggy, on the road leading from defendant’s home to Rosse. Defendant was drinking somewhat, but was not drunk.

<p>Obstructing Public Road, Etc.—Information—Article 405 of the Penal Code provides as follows: “ If any person shall wilfully obstruct or injure, or cause to be obstructed or injured, in any manner whatsoever, any public road or highway, or any street or alley in any incorporated town or city, or any public bridge or causeway, he sháll be ñned,” etc. Held that the offense denounced by the said article is the obstruction of any public road or highway, or any street or alley in any incorporated town or city, and that it does not embrace the obstruction of any road other than & public road, or street or alley in an unincorporated town or city. The information in this case, alleging the obstruction of a “certain road in the unincorporated town of Glen Rose,” charges no offense against the laws of this State.</p>

Tried below before the Hon. G. N. Aldredge. The conviction in this case was for the rape of Mattie Reid, in Dallas county, Texas, on the nineteenth day of March, 1886. A term of five years in the penitentiary was the penalty assessed against the appellant. Miss Mattie Reid was the first witness for the State. She testified that she was seventeen years of age, and that she had known the defendant about two years.

Tried below before the Hon. T. B. Wheeler. The indictment in this case charged the appellant with the murder of J. W. Henderson, in Coleman county, Texas, on the seventh day of February, 1885. His trial resulted in his conviction of manslaughter, and his punishment was affixed at a term of two years in the penitentiary. Henry Sacket wás the first witness for the State.

Tried below before the Hon. Anson Rainey. The conviction was for the theft of a steer, the property of S. B. Bryan, in Falls county, Texas, on the twenty-fourth day of June, 1881. A term of five years in the penitentiary was penalty imposed by the verdict. S. B. Bryan, the first witness for the State, testified that in March and April, 1881, he lived on Brushy creek, in Falls county, Texas, about ten miles north east from the town of Marlin.

<p>Aggravated Assault—Charge oe the Court.—On a trial for aggravated assault, the trial court charged the jury as follows: “If you find from the evidence that the defendant, W. H. Crawford, did, at the time and place charged in the information, take hold of the hand, and place his arih around the shoulder of Miss Sallie Williams, in an unfamiliar and indecent manner, and calculated to injure her, you will find him guilty of an aggravated assault,” etc.; which charge was promptly excepted to by the defendant. Held, that the charge was erroneous, because it authorized a conviction without the finding of an intent on the part of the defendant to commit an assault. Note the opinion for a charge suggested as a proper one on the question.</p>

Tried below before the Hon. T. B. Wheeler. • The indictment in this case charged the appellant with an assault with intent to murder one Dave H. Hickman, in Eastland county, Texas, on the fifth day of May, 1884. His trial resulted in his conviction of an aggravated assault, and the penalty assessed against him was a fine of two hundred and ninety-one dollars. The transcript brings up no statement of facts.

Tried below before the Hon. J. T. Longino, County Judge. The convictions were for violations of the local option law, and the penalties imposed were afine of fifty dollars in one case, and one hundred dollars in the other.

Tried below before the Hon. Eugene Williams. The conviction in this case was for theft of a watch chain from the person of one W. M. Feagle, in Falls county, Texas, on the nineteenth day of November, 1885. A term of two years in the penitentiary was the penalty assessed against the appellant. W. M. Feagle was the first witness for the State.

<p>1. Practice.—Special Venire, which shows the style and number of the case, and which, though in its preliminary recitals it omitted the name of the court or county in which the case was pending, distinctly stated in the mandatory part that the persons named were to be summoned “ to be and appear before the honorable district court of Williamson county, Texas, at the court house thereof, in Georgetown, on the nineteenth day of January, A. D. 1886, then and there to serve as special jurors, as aforesaid, in the above stated cause,” etc., is not obnoxious to the objection that the writ does not show in what case the same was issued, nor in what cause the said proceedings were pending.</p> <p>2. Same.—It was not error to permit the sheriff to amend his return upon the special venire facias.</p> <p>3. Same.—Article 617 of the Code of Criminal Procedure requires no more than that the names of all the jurors summoned under the special venire shall be served upon the defendant more than one day before the case is called for trial. The provisions of the said article are not subverted by the mere fact that the • certified copy served on the defendant contained other names, which were erased.</p> <p>4. Same—Interpretation oe the Codes.—It is an established rule of statutory construction that, “ When the particular provision of a statute relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or where the directions of a statute are given with a view to the proper, orderly, and prompt conducto fbu sin ess merely, the provision may generally be regarded as directory.!’ With respect to this doctrine this court has established the rule that, “ When ever there is reason to apprehend that injury may have resulted to the defendant, especially in a case of felony, from a failure to observe directions given the court by the Legislature, the judgment should be reversed.” Held, that Articles 618, 619, 620, and 621 of the Code of Criminal Procedure, relating to the organization of the trial jury in a case of capital felony, are directory only, and the failure of the trial court to conform to them is not reversible error, unless injury to the defendant be shown. Note the opinion for a case in which no injury is shown to have resulted from a disregard of said articles.</p> <p>5. Same—New Trial.—Continuance was applied for to secure the attendance of four witnesses. It is shown that two of them appeared in court before the conclusion of the testimony, but were not placed upon the stand by the defendant. The testimony of the remaining two, considered in connection with the evidence adduced upon the trial, does not appear to have been of a character material to the defense. Held, that the refusal of the continuance was not cause for new trial.</p> <p>6. Murder—Fact Case.—See the statement of the ease for evidence held sufficient to support a capital conviction for murder.</p>

Tried below before the Hon. Gustave Cook. The conviction in this case was for the embezzlement of sundry-articles of wearing apparel, the property of George T. Morris, aggregating in value a sum in excess of twenty dollars, in Galveston county, Texas, on the fifteenth day of September, 1884. A term of two years in the penitentiary was the penalty assessed by the jury. George T. Morris was the first witness for the State.

Tried below before the Hon. R. G-. Childress, County Judge. The conviction in this case was based upon an information which attempted to charge the appellant with an aggravated assault upon one L. Rierson. The penalty imposed by .the verdict was a fine of twenty-five dollars. The opinion sufficiently discloses the case.

Tried below before the Hon. R E. Beckham. The conviction in this case was for an assault upon the person of M. B. Loyd, with intent to rob the said Loyd, in Tarrant county, Texas, on the sixth day of June, 1885. The penalty assessed by the jury was a term of eight years in the penitentiary. M. B. Loyd was the first witness for the State.

Tried below before the Hon. W. E. Collard. The appeal in this case was prosecuted from a final judgment on the forfeited bail bond of O. D. Faubion, held under a charge of assault with intent to murder. The amount of the bond and judgment was five hundred dollars.

Tried below before the Hon. A. S. Walker. The conviction in this case was for the theft of a bridle, saddle, and blanket of value exceeding twenty dollars, the property of Henry Lubbock, in Travis county, Texas, on the twenty-fourth day of December, 1885. A term of two years in the penitentiary was the punishment awarded the appellant. Henry Lubbock was the first witness for' the State.

Tried below before the Hon. Eugene Williams. The conviction in this case yas for an assault with intent to murder one James H. Cluck, in Falls county, Texas, on the eighteenth day of September, 1883. A term of two years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hon. W. A. Blackburn. The conviction in this case was for the theft of a cow, the property of T. P. Hill, in Bell county, Texas, on the twenty-seventh day of December, 1880. A term of two years in the penitentiary was the penalty awarded. J. Y. Burke was the first witness for the State. He testified that, in the winter of 1880-1881, he was engaged in the butcher business in the town of Salado, Bell county, Texas.

<p>1. Theft—Asportation of the stolen goods is not, in this State, a necessary element of the crime of theft. The accused, in this ease, pointed out to the prosecuting witness a certain cow and calf on the range, claimed falsely that he owned them, and sold them to the witness. Held, sufficient to show such a fraudulent “ taking” as is meant by the statute defining theft. See the opinion in extenso on the question.</p> <p>3. Same—Case Overruled —To the extent that it holds it necessary, in order to constitute a fraudulent taking that the stolen property must have passed into the actual, manual possession of the thief, the case of Lott v. The State, 30 Texas Court of Appeals, 330, is overruled,</p> <p>8. Continuance.—New Trial is properly refused when requested because of the refusal of a continuance, if, when considered in the light of the evidence adduced upon the trial, the absent testimony is not probably true:</p> <p>4. Practice—Evidence.—Conflicts between the testimony for the State and the defendant must be solved by the jury, and not by the court.</p>

Tried below before the Hon. J. E. Crawford, County Judge. The conviction in this case was for the theft of a hack cushion and a pair of .hack lines, of the aggregate value of seven dollars, the property of J. E. Bond, in Robertson county, Texas, on the thirteenth day of October, 1884. The penalty assessed against the appellant was a fine of twenty-five dollars and confinement in the county jail for a period of thirty days. . J. E. Bond was the first witness for the State.

<p>“ Local Option” Law—Indictment—Cases Distinguished.—Indictment or information to be sufficient to charge a violation of the “ local option” law, must allege the name of the person to whom the liquor was unlawfully sold, or, if the name of the said person be unknown to the grand jury, that fact must be alleged. See the opinion in extenso for a review of the authorities on the question, and for the distinction between this case and the cases of Sedberry v. The State, 14 Texas Court of Appeals, 233, and McMillan v The State, 18 Texas Court of Appeals, 375.</p>

Tried below before the Hon. H. Gr. Kittrell. The appellant in this case was convicted for selling a certain horse on the twentieth day of October, 1885, which he had previously mortgaged to one C. H. Davidson. The penalty assessed against him was a term of three years in the penitentiary. C. H. Davidson was the first witness ior the State. He testified, referring to the mortgage exhibited, that it was executed to him by the defendant on the fifth day of February, 1885.

Tried below before the Hon. Eugene Williams. The indictment in this case contained two counts. The first charged the appellant with the theft of a yearling, the property of R. W. Johnson, in Falls county, Texas, on the first day of April, .1884. The second count charged him with receiving the said animal, knowing- it to be stolen. The verdict found the appellant guilty as charged in the second count, and assessed his punishment at two years in the penitentiary.

Tried below before the Hon. R Maltbie. The conviction in this case was for an assault with intent to murder one Amos Reed, in Grayson county, Texas, on the fifteenth of February, 1885. A term of four years in the penitentiary was the penalty assessed against the appellant. Amos Reed was the first witness for the State.

Tried below before the Hon. G. H. Noonan. This was a conviction for forgery, the details of which are sufficiently set out in the opinion of the court. A term of two years in the penitentiary was the penalty assessed by the jury. The record brings up no statement of facts.

Tried below before the Hon. A. S. Walker. The conviction in this case was for the theft of three certain horses, the property of Michael Heimer. A term of seven years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hon. T. L. Nugent. The indictment charged the defendant and one W. J. Bay, jointly, with the theft of one head of cattle, the property of L. White, in Erath county, Texas, on the fifteenth day of July, 1883. The appellant being alone upon trial, was convicted, and his punishment was assessed at a term of five years in the penitentiary. L. White was the first witness for the State.

Tried below before the Hon. Eugene Williams. The conviction in this ca&e was for an assault with intent to commit a rape upon one Maggie Schuster, in McLennan county, Texas, on the twenty-fourth day of March, 1886. The penalty assessed by the verdict of the jury was a term of three years in the penitentiary. Maggie Schuster was the first witness for the State.

<p>Theft—Burden of Proof—Fact Case—If, when his possession of the alleged stolen property is first challenged, the accused makes a reasonable and probably true explanation of the same, the burden rests upon the State to disprove the explanation. See the statement of the case for evidence held insufficient to support a conviction for cattle theft, in view of the explanation of the accused, and the evidence taken as a whole.</p>

Tried below before the Hon. T. L. Nugent. The conviction in this case was for the theft of a horse, the property of W. H. Basey, in Erath county, Texas, on the tenth day of October, 1885. A term of twelve years in the penitentiary was the penalty imposed. W. H. Basey was the first witness for the State.

<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 pursuing the occupation of selling the Illustrated Police Hews and the Police Gazette without having first paid the tax levied upon such occupation. The penalty assessed by the verdict was a fine of seven hundred and fifty dollars.</p>

Tried below before the Hon. B. D. Simpson, County Judge. At the November term, 1884, of the district court of Johnson county, a purported indictment was returned against O. A. Wells for pursuing the occupation of a liquor dealer without having first paid his occupation tax. The case was transferred to the county court, and on the thirtieth day of December, 1884, the said 0.

<p>1. Municipal Corporations—Statutes Construed—Sunday Law—Case Approved.—Note the opinion for an approval of the decision in Flood’s case, 19 Texas Court of Appeals, 684, as pronounced by a majority of this court, whereby municipal ordinances are held void because of their coniliet with the law of the State inhibiting traffic on Sunday.</p> <p>2. Same—Case Distinguished.—Note the opinion for the distinction between this and the case of Kurtz v. The People, 33 Michigan, 279.</p>

Tried below before the Hon. F. A. Williams, The indictment charged the appellant, Ose Owens and Hose Dickerson jointly with the theft of thirteen head of hogs, of the value of five dollars per head, the property of Joe Long, in Houston county, Texas, on the twenty-fifth day of October, 1883. The defendant being alone upon trial, was convicted, and was awarded a term of four years in the penitentiary. Joe Long was the first witness for the State.

<p>Appeal from the District Court of Bexar. Tried below before the Hon. Gr. H. Noonan.</p> <p>The conviction in this case was • for an assault with intent to murder one S. J. Bramlette. The penalty assessed against the appellant was a term of two years in the penitentiary. •</p> <p>Mrs. S. J. Bramlette, the wife of the defendant, was the first witness for the State. She stated that she and the defendant had reconciled their troubles and had agreed to live together as soon as defendant could get out of this prosecution. She therefore declined, to testify against him. Defendant’s counsel objected to the further examination of the witness on behalf of the State. The court overruled the objection, and instructed the witness that she would be required to testify. Witness then testified that she saw the defendant on Christmas day, 1884. Witness next saw him after his arrest at Kerrville, and his return to San Antonio. Defendant came home under the influence of liquor on the said Christmas day, 1884, He wept copiously, was much excited, and talked to the children, of which he and witness had four, aged respectively four, six, nine, and twelve years. He said that he wanted to take the children, as witness was unable to support them. Witness replied that he could take the two boys, but that she would keep the two girls. Defendant did not accuse witness of infidelity. He did not say that he wanted all of the children, but witness understood his demand to include them all. A dispute about the custody of the children arose between witness and defendant, and the latter became excited. He brought a pistol with him to the house, and the witness was shot by a ball from that pistol. In the course of the talk between the witness and the defendant, the defendant took the pistol from the side pocket of his over coat with his left hand and passed it to his right hand. Some threads and wadding from his over coat pocket adhered to the pistol, and while defendant was rubbing them off with his left hand the pistol was discharged, the ball striking the witness on the head, making a scalp wound. Witness could not say that the pistol was fired intentionally. She Thought it was discharged by accident. At all events, the defendant did not point the pistol at the wiTness with his hand, and, besides, it was discharged while he was rubbing the threads off it with his left hand. He made no effort to fire a second shot, although no one was present in the room but he and the witness. Witness walked out of her own house to a neighbor’s to secure treatment, and to ascertain the nature of the wound. When he drew his pistol the defendant remarked: “We had better all be dead if we can get along no better than we do.” Witness did not know where the defendant went after the pistol was discharged. Witness corresponded with the defendant after the shooting, and they had perfected their arrangements to live together again. Witness had made no arrangements with defendant not to testify in this case, but she did not want him convicted. She needed his help in the care of the children and herself, and wanted to live with him. She sent for Mr. Shields after defendant’s arrest at Kerrville, but before his return to San Antonio in custody, and told Shields that she wanted her husband acquitted, as she wanted to live with him.</p> <p>Doctor Braunagel testified, for the State, that he treated Mrs. Bramlette for the wound in her head which was inflicted on Christmas day, 1884. Had the ball gone straight through her head instead of glancing off, it would, most probably, have killed her.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. W. W. Evans, County Judge. The conviction in this case was had upon an information which charged the appellants with wilfully and mischievously injuring a locomotive engine, the property of the Missouri Pacific railway company, in McLennan county, Texas, on the eighth day of March, 1886. A fine of one dollar each was the penalty assessed against the appellants.

Habeas corpus on appeal from a judgment refusing bail rendered by the Hon. T. M. Paschal, judge of the thirty-eighth judicial district, in and for the county of Bandera. The applicant was held under a capias charging him with the murder of August Reitzer. The bail fixed by this court is twenty-five hundred dollars. • Rufus Evans was the first witness for the applicant. He testified that he lived in Medina county.

Tried below before the Hon. T. B. Wheeler. A term of five years in the penitentiary was assessed against the appellant, upon his conviction for swindling, under an indictment, the charging part of which reads as follows: * * * * “That Doc Sims, late of said county, on or about the twenty-fifth day of May, A. D. 1884, and in said county and State of Texas, did then and there, by means of false pretenses and devices, and fraudulent representations, then and there knowingly and…

Tried below before the Hon. A. S. Walker. The conviction in this case was for the embezzlément of thirty-eight dollars and seventy-eight cents, the property of J. H. Patterson, in Travis county, Texas, on the first day of November, 1885. The opinion states sufficiently the purport of the testimony of Messrs. Patterson and Dahlich, the only witnesses in the case. The motion for new trial raised the questions discussed in the opinion.

Tried below before the Hon. A. S. Walker. The conviction in this case was for the theft of a locket and necklace, of value exceeding twenty dollars, the property of Mary Marshall, in Travis county, Texas, on the tenth day of December, 1883. A term of three years in the penitentiary was the penalty awarded by the jury. The opinion sufficiently discloses the case.

Tried below before the Hon. J. G. Hazlewood. The conviction in this case was for the burglary of the house of C. O. Respass, in Panola county, Texas, on the tenth day of March, 1886. A term of three years and six months in the penitentiary was the penalty assessed by the verdict. Mrs. C. 0. Respass, the wife of the prosecuting witness, was the first witness for the State.

<p>Appeal from the District Court of San Saba. Tried below before the Hon. A. W. Moursund.</p> <p>This is the appellant’s second appeal from a conviction for an assault with intent to rape one Willie Ogle, a female under the age of ten years. The penalty assessed upon this trial was a term of two years in the penitentiary. The evidence was substantially the same as that adduced upon the former trial, which will be found fully set forth in the twentieth volume of these reports, commencing on page 275.</p>

Tried below before the Hon. L. D. Bradley. The indictment sought to charge the appellant and one John Shields jointly with the murder of Wade W. Patterson, on the fourth day of January, 1867: The appellant, being alone upon trial, was found guilty of murder in the first degree, and his punishment assessed at a life term in the penitentiary.

Tried below before the Hon. L. D. Bradley. The conviction in this case was for an assault with intent to rape one Carry Rhodes, in Limestone county, Texas, on the second day of July, 1885. The penalty assessed against the appellant was a term of two years in the penitentiary. The statement of facts covers twenty-six pages of the record. Ordinarily the evidence would be reported in a condensed form, in as much as it is involved in each of the rulings of the court.

Tried below before the Hon. J. Gr. Hazlewood. The conviction in this case was for an assault with intent to murder one Harrison Young, in Harrison county, Texas, on the tenth day of March, 1884. The penalty assessed against the appellant was a term of two years in the penitentiary. The case is disclosed in the opinion.

Tried below before the Hon. A. W. Moursund. The indictment charged the appellant with the murder of Eugene Houghton, in San Saba county, Texas, on the seventeenth day of March, 1886. His trial resulted in his conviction of murder in the second degree, and his punishment was assessed at a term of twenty years in the penitentiary. James Flack, a brother-in-law and business partner of the deceased, was the first witness for the State.

Tried below before H. W. Dillard, Esq., Special Judge. The conviction in this case was for wilfully driving from its accustomed range, etc., one certain horse, the property of Sam. M. Evans, in Uvalde county, Texas, on the twentieth day of December, 1885. The penalty assessed against the appellant was a term of two years in the penitentiary. Sam M. Evans was the first witness for the State.

Tried below before the Hon. L. D. Bradley. The indictment charges the appellant and his father, M. A. Tucker, jointly, with the theft of a yearling, the property of George Lewis, in Limestone county, Texas, on the fifteenth day of July, 1884. The appellant, being alone upon trial, was convicted, and his punishment was assessed at a term of two years in the penitentiary. George Lewis was the first witness for the State.