Volume 22 — Texas Court of Appeals Reports

Tried below before the Hon. D. H. Scott. Held: and he had ever since been, and still was, the county attorney. It was true that he assisted the witnesses (E. J., Nancy and Harriet Weedon) to leave this State. He made up money to pay their way back to North Oarolina.

Tried below before the Hon. H. C. Pleasants. The conviction in this case was for theft from John Andrus, of a horse, the property of Tom'Holt, in DeWitt county, Texas, on the twenty-fourth day of September, 1884. The penalty assessed against the appellant was for a term of five years in the penitentiary.

Tried belo.w before the Hon. IT. M. Cate, County Judge. The conviction in this case was for exhibiting a gaming table, the penalty imposed upon the appellant being a fine of twenty-five dollars. The substance of the testimony .adduced on the trial being succinctly stated in the opinion of the court.

Tried below before the Hon. W. R, Dickerson, County Judge. The conviction in this case was for the embezzlement of a razor, of the value of one dollar and fifty cents. The penalty assessed against the appellant was a fine of three- dollars and confinement in the county jail for five hours.

Tried below before the Hon. H. M. Cate, County Judge. Appellant was convicted on an information which charged that on June 28, 1885, he committed an aggravated assault on the person of Cal Banty by drawing and striking at said Banty with a certain knife, a deadly weapon, and displaying the same in an angry and threatening manner. A fine of twenty-five dollars was the punishment awarded against appellant by the verdict and judgment.

Tried below before the Hon. D. H. Scott. The conviction was for the theft of an overcoat of the value of twenty dollars, and the punishment assessed against the appellant was a term of two years in the penitentiary. E. H. Evens was the first witness for the State. He testified, in substance, that in the fall of 1885, he occupied apartments at the boarding house of Mrs. John Harmon, in the city of Paris, Lamar County, Texas.

Tried below before the Hon. G. H. Noonan. A term of five years in the penitentiary was the term assessed against the appellant, upon his conviction for perjury, under an indictment, the charging part of which reads as follows: “* * * * that William Washington, on the thirteenth day of thé month of May, in the year of our Lord 188(5, in said county of Bexar and State of Texas, in the District Court of said county, then in session, and of which said court George H. Noonan was…

Tried below before the Hon. John M. Duncan, county judge. The facts are sufficiently stated in the opinion of the court. A fine of ten dollars was the penalty assessed against the appellant.

Tried below before the Hon. E. E. Finer. The conviction in this case was for an assault with intent to rape Marietta Batchelor, in Denton county, Texas, on the eighteenth day of May, 1886. A term of two years in the penitentiary was the penalty assessed against the appellant. Marietta Batchelor was the first witness for the State.

Appear from the District Court of Freestone. Tried below before the Hon. L. D. Bradley. The conviction in this case was for the burglary of and theft from the house of W. M. Hancock, in Freestone county, Texas, on the eighteenth day of May, 1886, and the penalty imposed upon the appellant was a term of two years in the penitentiary. There is no statement of facts.

<p>Embezzlement—Indictment—Theft.—Under the statute of this State,, embezzlement is punishable as theft The minimum and maximum punishment for horse theft is respectively five and fifteen years. The minimum and maximum punishment for the theft of property of or exceeding the value of twenty dollars is respectively two and ten years. A count in an indictment which charges two distinct offenses is bad—burglary and theft being an exception to this rule. The indictment in this ease charged in a single count the embezzlement of a horse, and also a gun and pistol of the combined value of twenty dollars. Held, that the two kinds of theft charged constitute two separa*e offenses, and the indictment was bad for duplicity; wherefore the exceptions to the same were erroneously overruled.</p>

Tried below before the Hon. F1. E. Finer. The conviction in this case was for maiming one 0. B. Marsters by shooting off his toe. The penalty assessed against the-appellant was a term of two years in the penitentiary. C. B. Marsters was the first witness for the State. He testified that on the morning of April 7, 1886, he went with his wagon to. the pasture of Sam Reynolds, in Denton county, to get a load of wood.

<p>Appeal from the District Court of Blanco. Tried below before the Hon. A. W. Moursund.</p> <p>The indictment in this case was joint against this appellant .and Alexander Hardin, charging them with the murder of Sandy Armstead in Blanco county, Texas, on the third day of April - 1886. The appellant being alone upon trial was convicted of murder in the first degree, and was awarded a life term in the penitentiary. Appellant was the wife of the deceased.</p> <p>Emeline Armstead, the daughter of the defendant and the deceased, was the first witness for the State. She testified that she, her father (deceased), her mother (the defendant), her brother Monroe, eleven years old, and her five-year-old sister, lived in the same house in Blanco county, Texas, on the third day of April, 1886. About thirty minutes before sun set the defendant left home, and went to the house of Sam Hinds, a neighbor. Just before dark the deceased left the house to go to the field fence, some four hundred yards distant, to get his pipe, which he had left there. Alex Hardin came to the house from another direction just as the deceased left. He spoke to witness, saying: “Good evening, Lena; here is a dollar for you and Monroe. Tour father will be killed some of these nights, and you must say that I was not here, but that I left early.” Deceased returned to the house’just before dark, and the defendant got back about dark. Supper was prepared and defendant and deceased ate together, Alex Hardin declining to eat upon the plea that he had eaten his supper. Some time after supper the deceased went to bed, leaving the defendant and Alex Hardin in the room, talking about church affairs, the defendant sitting in front of the fire place' near a box, and Alex Hardin standing near by. Deceased went to bed, in the bed which stood in the southwest corner of the room. Witness, her brother Monroe and her sister, retired shortly afterwards to the bed which stood in the southeast corner of the room. Deceased began to snore about fifteen minutes after he retired, at about which time Alex Hardin left.</p> <p>Some time, perhaps two hours later, the witness, who had not yet fallen asleep, was frightened by the report of a gun fired into the house. She got up and found that the deceased had been shot. Witness could see the deceased’s bed from her bed, but, because of an intervening box, could not see his head. After the shooting, the witness saw a hole in the wall of the house directly at deceased’s head. The walls of the house had been several times daubed, but the daubing was as often washed out by rain, and the crevices for sometime had been filled with rags. The crack or hole near the deceased’s head was found, on the next morning, to be powder-burned. It was not powder-burned on the afternoon before. Some rags were also found on the ground under that hole, and it was the witness’s opinion that they were in the hole on the evening before. .The killing occurred on Saturday night, at about ten o’clock. On the next day witness told defendant about Alex Hardin giving her and Monroe a dollar, and saying what he did about the deceased going to be killed some night. Defendant said she worked with Alex Hardin on his place a day or two during the previous week.</p> <p>Cross examined, the witness testified that Hardin came to the house from the north, in the direction of his home, on the evening of the killing. Defendant had then gone to Hind’s house, southeast from home, to milk. She was not at home when Hardin gave witness and Monroe the dollar, and remarked that deceased would be killed, etc. Hardin made the remark after he had presented the dollar. He could have seen deceased at that time going to the field fence. When Hardin left he left the defendant sitting in front of the fire place, sewing. She was so engaged at the same place when the fatal shot was fired. The deceased’s house “headed” south. The witness was satisfied that the rags were pulled from the hole, or crack in the wall, at the head of defendant’s bed, on the night of the shooting.</p> <p>Sam Hardin was the next witness for the State. He testified that he lived about a mile from the house of the deceased and defendant, and about half that distance from Richardson’s house. Witness’s son, Alex Hardin, came home about ten o’clock on the night of the homicide, and waked witness up by the noise he made in getting to bed. A short while later Richardson’s two boys came to witness’s house and told him of the death of the deceased. Witness got up and dressed, and with George Coffey went to the deceased’s house. He found deceased dead in his bed, a gun shot being the cause of his death. Ho person save the deceased, the defendant and their children were at the house. The clock struck twelve just as witness reached the defendant’s house.</p> <p>Cross examined, the witness stated that he lived north from the house of the deceased. Hinds lived southeast from that house, and the school house was south. In going from witness’s house to that of deceased, an almost opposite direction from Hinds’s and the school house would have to be traveled. Witness saw the defendant at a church meeting at the school house on the evening before the tragedy. She remained at the meeting from three o’clocx until near sun down, and when she "left she said she was going to Hinds’s to milk. Alex Hardin left witness’s house, early on the morning of the fatal Saturday, with the hands to work the road on Miller’s creek at a point farther from defendant’s place than from witness’s. The witness did not see Alex again until he returned and went to bed, about ten o’clock that night. Defendant and Alex worked together, on witness’s place, on the Wednesday and Thursday prior to the killing of the deceased.</p> <p>Jackson Burch testified, for the State, that he went to the deceased’s house on Sunday morning, the day after he was killed. Deceased lay in bed with his head to the south. He was shot through the head. It was evident that the fatal shot had been fired through a crack in the south wall of the house, just at the head of the bed. The upper edge of the crack was powder burned. About a year before the killing of the deceased, the witness stopped at deceased’s house and heard a quarrel between the deceased and the defendant, Emerson Johnson, Wesley Johnson and Ellen Johnson being also ■ present. During the course of that quarrel defendant said: “ Some (or perhaps a parcel) of you negroes will get your brains blown out if you don’t quit fooling with me.” She was looking at the deceased at' the time. Witness, as the pastor of the church, spoke to the defendant about her conduct, and she promised to do better. Defendant was not crying, nor did she otherwise manifest any distress,, on the morning after the death of her husband. She did nothing towards caring for or attending to the body, that the witness saw. She was humming a tune when called before the inquest over the body, to testify.</p> <p>Cross examined, the witness stated that the inquest over the body was in progress when he arrived at the house of the deceased on Sunday morning. The house was a single room log house. The spaces between the logs had been daubed in, but the daubing had fallen out in places.</p> <p>John Jackson testified, for the State, that two or three months before the decease of Sandy Armstead, witness and his wife had a conversation with the defendant about the manner in which she and deceased were getting along. In the course of that conversation witness remarked: “A piece of a rail is better than no rail at all, and so a piece of a man on a place is better than no man at all; for he will bring in something.” The ■defendant replied: “No, it would be better for both me and Sandy if he was dead.” Witness reached the house of the deceased a little after sun rise on the day after the murder. He did not notice the defendant particularly, but observed that she •did not go about the corpse, did not weep, nor did she manifest ■any distress. She went before the coroner’s jury, humming a tune. Witness saw some red jeans rags on the ground outside the house, just under the crack at the head of deceased’s bed. They appeared to have been taken from that crack from the out-ride.</p> <p>Cross examined, witness said that the deceased and the defendant separated in the winter of 1885, after which, for some time, the defendant stayed at his house, and it was during her stay at his house that she said it would be better for her and deceased if deceased was dead.</p> <p>Emeline Armstead, recalled by the State, testified that she was asleep when the fatal shot was fired. The deceased was also asleep. Defendant and Alex Hardin were sitting together talking when witness went to sleep. Witness was awakened by the report of the gun. She saw her mother, the defendant, spring from her chair in an apparent fright. She ran to witness’s bed and exclaimed: “Lord! Lord! some one has shot in here!” She continued to cry and scream, and went to the bed and called cut that deceased was dead.</p> <p>Cross examined, witness stated that she forgot to state on her first examination that she was asleep when the shot was fired. Witness did not see Alex Hardin leave the house that night, nor did she see any other person than Alex, save the family, about the house on that day or night.</p> <p>W. J. Jackson testified, for the State, that he reached the house of deceased and defendant at or near day light on the morning after the murder. Defendant was sitting by the fire, nursing her baby, when witness arrived. Witness asked her who had been on the place during the previous night, and she denied that any one had been there. After talking to her children, witness asked her if Alex Hardin was not there on the night before. She at first denied that he was there, but upon being further pressed, admitted that Alex Hardin was there about sun down, but asserted that he left before dark to go to a church meeting. To witness’s question the defendant said that Alex was not at the house when deceased was shot. On the upper edge of the crack through which it was evident the fatal shot was fired, there was an indentation which fitted the sight of Alex Hardin’s gun, but which would fit none of the large number of other guns applied to it.</p> <p>Cross examined, the witness said that Hardin’s gun was not found at Hardin’s house. Witness permitted no one touch the body of the deceased until the inquest was over. Over the defendant’s objection, the witness was permitted to testify that he sent Lee Bramin and Charles Jenkins with Alex Hardin, some days after the killing, to a place near deceased’s house, indicated by Hardin, to find a certain cartridge hull. Witness also went along. Alex Hardin pointed out a place, about fifty-five yards from the house, where he said the hull would be found, Jenkins found it at that place.</p> <p>Monroe Armstead, the eleven year old son of the deceased and the defendant, testified briefly for the State, but in substance the same as did his • sister Emeline, except that he stated positively that Alex Hardin left the deceased’s house a few minutes before he and his sister retired, which was some time before the fatal shot was fired.</p> <p>Sheriff Jackson and his deputy, Bramin, identified the cartridge hull in evidence as the one found at the place pointed out by Alex Hardin near the deceased’s house, and testified that they inserted the same in Hardin’s gun and found it to fit exactly. Hardin’s gun, when examined by the witness on Sunday morning, showed that it had been discharged within the preceding twenty-four hours. The State rested.</p> <p>Ellen Johnson, the first witness for the defense, testified that defendant was at church meeting pretty much all day on Saturday, the day of the killing, and left about sun down to go to Hinds’s to milk. Witness was at defendant’s house on the next day, and heard John Jackson tell defendant that if Alex Hardin was at her house on the previous evening, not to admit or acknowledge it.</p> <p>Sam Hinds testified, for the defense, that defendant, who had been milking at his house on Saturday evening, left about dark to go home.</p> <p>Anderson McOonico testified, for the defense, that he was at the house of the defendant on the Monday before the fatal Saturday night. When deceased started to work defendant asked him what she would do for wood. Deceased, who had no team, replied that he would get Alex Hardin to haul her a load, and she, defendant, could pay the work back to Alex by dropping corn for him. Alex hauled the wood.</p> <p>Monroe Armstead, for the defense, testified that Anderson McOonico was at defendant’s house on Monday previous to the fatal Saturday. Witness heard the deceased engage a load of wood from Alex Hardin, but did not know how it was to be paid for. Witness went to bed on the fatal Saturday night before Emeline did, and left Emeline and defendant sitting up in front of the fire place. Hardin left the house just after witness got in bed.</p> <p>Wesley Johnson, testifying for the defense, referred to the testimony of Jack Burch, and denied that, on the occasion spoken of by Burch, defendant said that “ some of you niggers, if you don’t look out, will get your brains blown out.” No such threat or statement was made by defendant on that occasion. Burch was then pleading with defendant to go back to the deceased. Witness once heard deceased say that Alex Hardin was the son of a b—h who moved his wife from home. He was angry with Alex.</p> <p>Ellen Johnson, the next witness for the defense, testified .in substance as did the witness Wesley Johnson.</p> <p>Emeline Armstead, for the defense, testified that the defendant, on discovering the death of her husband, screamed and wept violently. Within fifteen minutes she went screaming to Richardson’s house, and after a time returned with Emanuel Jackson. This witness positively reasserted that Hardin and defendant were together in the house when she, witness, went to sleep. She went to bed at least thirty minutes after her brother Monroe retired. Monroe was asleep when the witness went to bed.</p> <p>Henry Richardson testified, for the defense, that on the fatal •Saturday night the defendant, “snuffling,” came to his house, placed her arms around his daughter, and said: “Some one has come up there and killed Sandy.” She wanted witness’s daughter to go home with her, but, witness’s wife objecting, Emanual ■Jackson went with her instead. The defense closed.</p> <p>Susan Burch testified, for the State, that some fifteen months before the assassination of the deceased, she heard the defendant say: “I could, if I would, have Sandy’s brains blown out.”</p> <p>The motion for new trial raised the questions discussed in the ■opinion.</p>

Tried below before William Stedman, Esq., special judge. The conviction in this case was for an assault with intent to murder one J. A. Bell, in Harrison county, Texas, on the first day of April, 1886. A term of seven years in the penitentiary was the penalty imposed upon the appellant.

Tried below before the Hon. Jo. M. Harrell, County Judge. The opinion discloses the cáse. The penalty assessed was a. fine of thirty dollars.

W. A. Blackburn. This appeal was prosecuted from a judgment final forfeiting the recognizance of Lon Roberts, bailed under an indictment charging him with the theft of cattle. The amount of the recognizance and judgment was six hundred dollars.

Tried below before the Hon. George McCormick. The indictment in this case was joint against the appellant, Taylor Kunde, Albert Kunde, Ludwig Kunde and Frederick Kunde, and charged them with the murder of Jobey Drennon, in Guadalupe county, Texas, on the twenty-sixth day of October, 1874. The appellant being alone upon trial was convicted of murder in the first degree, his punishment being assessed at a life term in the State penitentiary.

Tried below before the Hon. D. H. Scott. The conviction in this case, was for perjury, and the penalty assessed against the appellant was a term of five years in the penitentiary. Joe Lewis was the first witness for the State. He testified that he and the defendant, on the fourteenth day of December, 1883, lived in the same neighborhood, in Fannin county, Texas, about four and one-half miles from the town of Ladonia.

Tried below before the Hon. D. H. Scott. This is the appellant’s second appeal from a conviction for manslaughter under an indictment which charged him with the •murder of John Webb, in Fannin county, Texas, on the fourteenth day of December, 1883. A term of two years in the penitentiary was the penalty assessed against him.

Tried below before-the Hon. W. P. McLean. The charging part of the indictment reads as follows:. * * * “Did unlawfully, and with malice aforethought, make an assault upon the person of one James Sims, with the intent of him, the said A. R. Price, then and there to kill and murder the said James Sims, contrary,” etc. A term of two years in the penitentiary was the penalty assessed against the appellant. J. W. Sims was the first witness for the State.

Tried below before the Hon. Z. T. Fulmore, county judge. The conviction in this case was for an aggravated assault and battery upon the person of Thomas Riley, in Travis county, Texas, on the sixteenth day of July, 1886. The penalty assessed against the appellant was a fine of three hundred dollars, and confinement in the county jail for the period of one year. The question upon which this appeal is disposed of renders a statement of the facts unnecessary.

Tried below before the Hon. A. W. Moursund. A term of eight years in the penitentiary was assessed against the appellant upon his conviction for the theft of a horse, the property of R. J. Carson, in Llano county, Texas, on the tenth day of February, 1886. R. J. Carson, the first witness for the State, testified, in substance, that he resided at Fort McKavett, in Menard county, Texas, and was a school teacher by profession.

Tried below before the Hon. F. E. Finer. The indictment charged the appellant with the theft of a. watch from the person of W. R V. Glasscock, in Wise county, Texas, on the first day of November, 1885. His trial resulted in his conviction, and his punishment was assessed at a term of' two years in the penitentiary.

Tried below before the Hon. F. J. McCord. The death penalty was assessed against the appellant in this case, upon his conviction in the first degree for the murder of his wife, Annie Robinson, in Smith county, Texas, on the twenty-seventh day of April, 1886. Henry Johnson, the father of the deceased, and the father-in-law of the defendant, was the first witness for the State.

Tried below before the Hon. W. E. Wootten, county judge. The conviction in this case was for an aggravated assault and battery upon the person of William Johnson, in Red River-county, on the the twenty-fifth day of April, 1885. The punishment assessed against the appellant was a fine of twenty-five dollars. The motion for new trial raised the question discussed in the opinion.

J. K. Milam, County Judge. The appellant in this case was originally convicted in the justice’s court for carrying a pistol and a slung shot. His appeal to the county court was dismissed upon the grounds stated in the -opinion, from which ruling the appeal to this court was prosecuted.

Tried below before the Hon. A. S. Walker. The indictment in this case charged the appellant with the murder of his wife, Eula Phillips, in the city of Austin, Travis county, Texas, on the night of December 24,1885. His trial resulted in his conviction of murder in the second degree, and his punishment was assessed at a term of seven years in the State penitentiary. Mrs. James Phillips, the defendant’s mother, was the first witness for the State.

Tried below before the Hon. A. W. Moursund. Under an indictment which charged him with the murder of James Cox, in Llano county, Texas, on the twenty-fifth day of February, 1886, the appellant was convicted of murder in the :second degree, and awarded a term of five years in the State penitentiary. Mrs. F. M. Cowan; the mother of the deceased, was the first witness for the State.

Tried below before-the Hon. J. S. Sherrill, county judge. The conviction in .this case was for keeping a disorderly house-in Hunt county, Texas, and the punishment assessed against-the appellant was a fine of five hundred dollars. E. 0. Johnson was the first witness for the State. He testified that he lived in Greenville, Hunt county, Texas. He knew the-general reputation of the house known as the old Coffey hotel..

Tried below before the Hon% J. A. B. Putman. The conviction in this case was for the theft of eight dollars from the person of John Schell, in Hunt county, Texas, on the twelfth day of June, 1886. A term of two years in the penitentiary was the punishment assessed by the verdict. The disposition of the appeal does not call for a statement of the facts proved.

Tried below before the Hon. J. K. Milam, County Judge. The conviction in this case was for betting at a game played with dice, the dice being thrown in a raffle in a saloon to decide the ownership of a gun of the value of seven dollars. The penalty assessed against the appellant was a fine of twenty dollars.

Tried below before the Hon. A. S. Walker. The conviction in this case was for perjury, and the penalty awarded was a term of five years in the penitentiary.

Habeas corpus on appeal from the District Court of Limestone. Tried below before the Hon. Sam R. Frost. The relator in this proceeding was held under an indictment charging him with the murder of one Cicero Brown, in Limestone county, Texas, on the tenth day of June, 1886. The result of his appeal was the reversal of the judgment refusing bail, and the award of bail in the sum of five thousand dollars. Eli Robertson was the first witness for the relator.

Tried below before the Hon, J. A. B. Putman. The indictment in this case charged the appellant with the murder of Griff Flippin, in Hunt county, Texas, on the second day of June, 1884. The conviction was for murder of the second degree, the penalty assessed against the appellant being a term of five years in the penitentiary. Will Green was the first witness for the State. He testified that he lived near Caddo Mills, in Hunt county, Texas.

Tried below before the Hon. A. S. Walker. Under an indictment charging him with the murder of George Walton, in Williamson county, Texas, on the twenty-fourth day of December, 1885, the appellant was convicted of murder in the second degree and his punishment was assessed at seven years’ confinement in the penitentiary. Doctor E. W. Walton, the brother of the deceased, was the first witness for the State.

Tried below before W. E. Vivrett, Esq., Special Judge. The conviction in this case was for the theft of one head of cattle, alleged, in the indictment, to be the property of John A. Lee. The indictment was presented in Palo Pinto county, impleading, also, one H. C. McDonnell. It alleged the venue of the offense to be in Palo Pinto county, and that it was committed on the sixteenth day of May, 1883.

Eugene Williams. The conviction in this case was for receiving a stolen yearling, the property of Jacob W. Morris, knowing it to be stolen property, and the penalty assessed against the appellant was a term of two years in the penitentiary. This is the companion case of that of Gaither v. The State, which will be found reported in full in the twenty-first volume of these Reports, beginning on page 527.

Tried below before the Hon. J. S. Sherrill, County Judge. The conviction in this case was for the obstruction of a public road, and the penalty assessed was a fine of twenty dollars.

Tried below before the Hon. Eugene Williams. This is the appellant’s second appeal from a judgment of conviction for the theft of a steer, the property of S. B. Bryan, in Falls county, Texas, on the twenty-fourth day of June, 1881, his punishment being again assessed at a term of two years in the penitentiary.

Tried below before the Hon. A. T, Watts, special judge. The conviction in this case was for the theft of a heifer, the property of Mary Criswell, in Parker county, Texas, on the seventeenth day of March, 1885. A term of two years in the penitentiary was the penalty assessed by the jury. Ira Criswell, the brother of the alleged owner of the stolen animal, was the first witness. He testified that his sister owned ten or twelve head of cattle, after which he looked.

Tried below before the Hon. D. H. Lane, County Judge. The conviction in this case was for the willful and wanton killing of a cow, and the penalty imposed by the jury was a fine • of twenty-five dollars. The appeal was prosecuted upon the single question determined in the opinion.

Tried below before the Hon. J. A. B„ Putman. A term of two years in the penitentiary was assessed against the appellant upon his conviction for assault with intent to murder, under an indictment the charging point of which reads as follows: x * * % * _..iat JamesBradberry, late of the county of Hunt and State or Texas, did, with force and arms, in the county of Hunt and State of Texas, on the sixth day of March, A. D. 1886, with his malice aforethought, make an assault in…

Tried below before the Hon. T. B. Wheeler. The indictment charged the appellant with the murder of J. F. Martin, in Comanche county, Texas, on the twentieth day of June, 1885. His trial resulted in his conviction of murder in the second degree, and his penalty was affixed at a term of fourteen years in the State penitentiary. J. B. Hilliard was the first witness for the State. He testified that he knew the defendant and was acquainted with the deceased in his life time.

Tried below before the Hon. J. C. Russell. The indictment in this case was presented by the grand jury of Webb county, Texas. It charged the appellant with the murder of one Thomas Riley, in the said Webb county, Texas, on the fifteenth day of February, 1882. A change of the venue to Nueces county was awarded, and at the trial in that county the appellant .was convicted of murder in the second degree, his punishment being assessed at a term of five years in the penitentiary.

Tried below before the Hon. W. P. McLean. The death penalty was assessed against the appellant by the jury, which found him guilty in the first degree under an indictment which charged him with the murder of Cate Hicks, in Bowie county, Texas, on the sixth day of August, 1886. Vic Simpson was the first witness for the State. He testified that he knew the defendant and was acquainted with the deceased in his lifetime.

Tried below before the Hon. O. H. Willingham, County Judge. The conviction in this case was for obstructing a public road, and the penalty assessed was a fine of one hundred dollars. The opinion sufficiently discloses the case. The judgment was first affirmed without written opinion, but was reconsidered on motion for rehearing, and the cause disposed of by the opinion now reported.

<p>Obtstructing Public Road—Constitutional Law.—The evidence in this ease discloses that the road obstructed by the erection of gates was classified in 1877 as a third class road, and that, in 1883, the commissioners’ court changed it to a second class road -without notice to, or the consent of, the defendant, and without compensation to him for taking or damaging his uninelosed land over which the said road was established. The gates were erected after the said change. At the time that said change was made there was no statute in force providing for the condemnation of uninelosed lands for road purposes, as Article 4370 of the Revised Statutes embraces only farms, lots or inclosures. Section 17 of Article 1 of the Constitution was then in force, providing that “no person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person,” etc. Held that, the evidence showing that the change in the class of the road was made without the consent of the defendant, and without having first compensated him for the damage to and for taking his uninelosed land, it fails to establish an offense against the laws of this State.</p>

Tried below before the Hon. E. P. Kearby, County Judge. The conviction in this case was for theft of property of value less than twenty dollars. The penalty assessed against the appellant was a fine of twenty-five dollars, and confinement in the county jail for one hour.

Tried below before the Hon. D. H. Scott. The conviction in this case was for an assault with intent to rape one Emma Gatz, in Red River county, Texas, on the twenty-ninth day of July, 1885. A term of two years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. J. A. B. Putman. The conviction in this case was for the burglary of the hide store house of S. J. Dowling, in Hunt county, Texas, on the ninth day of April, 1886. A term of two years in the penitentiary was the punishment assessed against the appellant. S. J. Dowling was the first witness for the State. He testified that he lived in Greenville, Hunt county, Texas, and knew the defendant, whom he pointed out in open court.

Tried below before the Hon. A. T, Watts, special judge. Held: which said pistol as aforesaid was charged with gunpowder and leaden bullets, he, the said Eli McConnell, did then and there discharge and shoot off to, at and against her, the said Viola Hunt McConnell, a female child in being within the State of Texas aforesaid, feloniously, wilfully, and his, the said Eli McConnell’s, express…

Tried below before the Hon. A. S. Walker. The conviction in this case was for perjury, and the penalty assessed against the appellant was a term of seven years in the penitentiary. The second head note states the matter assigned as perjury.

Tried below before the Hon. F. J. McCord. The indictment in this case charged the appellant with an assault with intent to murder one Joe Brooks, in Smith county, Texas, on the twenty-seventh day of April, 1886. The trial resulted in a conviction for aggravated assault and battery, and the punishment awarded was a fine of one hundred and fifty dollars. Joe Brooks was the first witness for the State.

Tried below before the Hon. J. M. Rosborough, County Judge. The opinions disclose the - case. The penalty assessed was a fine of one thousand dollars.

Tried below before the Hon. Sam Furman, County Judge. The conviction in each of these cases was for exhibiting a gaming bank, and the penalty assessed in each case was a fine of twenty-five dollars, and confinement in the county jail for ten days. The transcripts bring up no statements of facts.

Tried below before the Hon. J. H. Turner, County Judge. Appellant was convicted of exhibiting a gaming table, under an indictment which charged him jointly with one Jeff Wheelis. A fine of twenty-five dollars was the punishment assessed against him. Ben Bradford was the first witness for the State. He testified that during the year 1884 the defendant and Jeff Wheelis did a saloon business in the town of Overton.

Tried below before the Hon. W. H. Ford, The conviction of the joint defendants in this case was for the theft of a cow, the property of Oliver Bland, in Orange county, Texas, on the first day of October, 1882. Two years in the penitentiary was the term of imprisonment assessed on each defendant. Robert Myers was the first witness for the State.

Tried below before the Hon. F. E. Finer. The conviction in the case was for receiving and concealing embezzled property, knowing it to be embezzled, the charging part of the indictment appearing, in substance, in the opinion of the court. The penalty assessed by the verdict was a term of five years in the penitentiary. The transcript brings up no statement of the facts.

Habeas Corpus on appeal from the District Court of Guadalupe. Tried below before the Hon. George McCormick. The transaction involved in the proceedings in this case is the same charged in the indictment upon which the relator was tried and convicted, and the conviction set aside at a former day of the present term of this court. That indictment charged the appellant with the murder of Joby Drennon, in Guadalupe county, Texas, on the twenty-sixth day of October, 1874.

<p>Appeal from the District Court of Erath. Tried below before the Hon. T. L. Nugent.</p> <p>The death penalty was assessed against the appellant in this case upon his conviction for the rape of his own daughter, S. L. Cooper, in Erath county, Texas, oh the fifteenth day of July, .1885.</p> <p>S. L. (or Lula) Cooper, the alleged injured party, was the first witness for the State. She testified that the defendant was her father. Her-mother was dead, but the defendant’s second wife, her step mother, was still alive. Witness had a brother about eight years old. On Sunday, about the middle of July, 1885, the defendant, his wife, witness and her little brother arrived in Stephenville, Erath county, Texas, and stopped at an old log house belonging to Mr. Hyman, near Mr. Creswell’s house. The old log house had three rooms, one of them being a side or shed room attached at the rear. It had three doors, one in the front, one in the back, and one between the main room and the shed room. The parties named retired about their usual hour, but witness could not say what time that was. Witness and her little brother went to bed first on a pallet spread in the main room near the door which led from that into the shed room. They left the defendant and his wife talking together near the front door. The defendant and his wife went to bed on a pallet spread on the floor of the main room near the front door, and on the opposite side of the room from the witness. The" foot ends of the two pallets were about two feet, or possibly a little further, apart. Witness went to sleep shortly after she retired. She was awakened during the night by the defendant. She asked who that was, and defendant said: “Hush! It is Pa.” He then got on top of witness. Witness wept, and begged defendant to let her alone. He told witness that if she did not hush and lie still he would kill her. He repeated his threats to kill witness if she did not hush and lie still. The witness did not cry out or aloud, because she was afraid to. The witness was lying on her back when the defendant got on top of her. He then placed one hand on the bed, and with his other hand he inserted his male organ into the witness’s private parts. He placed his face to witness’s face, and motioned his body towards the witness’s body, remaining on her about five minutes. During the sexual process he kept his left arm about the witness’s neck. The witness felt his male organ in her private organ during the sexual process. Witness cried throughout the operation because it occasioned her great pain. When defendant got off of witness he went back to his own pallet, telling the witness, as he started, that he would kill her if she told any body what had transpired. The witness’s little brother was asleep and did not wake up during the perpetration of the outrage. The witness did not know whether her step mother was awake or asleep during that time, but, as she made no movement to indicate that she was awake, witness thought she was asleep. Defendant obtained carnal knowledge of the witness without the consent of the witness and against her will, and over her protests, and in spite of her pleading him to desist. He told witness that he would kill her if she did not hush, and that he would kill her if she did not lie still, and when he went back to his bed after having compelled her, by threats, to submit, he told her that he would kill her if she ever divulged the act to any one.</p> <p>On the next morning the defendant went up town to work. Witness’s step mother put witness to work cleaning out the trash from under the house. The witness’s privates were so sore and painful that she could not help crying, which induced her step mother to ask her what was the matter with her. She told her step mother about the treatment her father had subjected her to on the previous night. On the next day (Tuesday) witness and her step mother went to the house of Sam Owens, the son in law of Mrs. Cooper, near Hico. They remained at Sam Owens’s two nights and one day. On Thursday they went to Mr. Mose Hurley’s house, when Mrs. Cooper told Mrs. Hurley about the outrage perpetrated upon witness by the defendant. On Friday morning the witness told Mr. Hurley all about it. Mrs. Cooper and the witness went back to Stephenville on that same Friday, and attended the defendant’s examining trial, which was held on that day,which was the Friday following the Sunday night of the rape. On that day two doctors, one of whom was Dr. Crow, examined the witness’s privates in a small office. Witness’s privates were still sore at that time. The defendant was at home on the Tuesday morning when witness and her step mother started to Sam Owens’s house. He told his wife not to take the witness either to Sam Owens’s or to Mr. Beasley’s house, but to take her a long way off so that he could never hear of her again. He said to witness as she left: “Remember who raised you.” Witness’s little brother was left with the defendant. The witness had no idea what had become of him. Defendant, his wife, witness and her brother went to Sam Owens’s house about a month before they went to Stephenville. They had been living at Cleburne for some time before they went to Owens’s. Witness went to Mr. Hurley’s on the Thursday following the rape, and had been there ever since.</p> <p>Cross examined, the witness stated that all of the Cooper family did not remain at Sam Owens’s house throughout the entire month preceding their removal to Stephenville. During that month Mrs. Cooper and witness visited San Antonio and Austin. Witness did not remember when they visited Austin and San Antonio, but she thought it was in June. They stopped at the Perkins House in San Antonio and at Mrs. Brown’s boarding house in Austin, witness and her step mother sleeping together every night. Mrs. Cooper had a paper on which she was begging under the pretense that she was a widow with two young children, and had lost her house by fire, and was making up money to rebuild; all of which the witness knew to be false. The witness was never asked any questions about the truth of the statements contained in the paper, and she never volunteered any information thereupon. They spent two days in San Antonio. Mrs. Cooper and witness were in Stephenville circulating the paper after the Christmas preceding the trial. They did not camp on the Bosque river when they left Stephenville on the occasion of their first visit. They left Stephenville in the afternoon, and camped that night on a creek about five miles from town. Of that fact the witness was as certain as she was that her father ravished her. The first time they visited Stephenville, they came from Granburv. They crossed a creek or river just before they reached Stephenville, and the night before they camped at a house on the road. Mrs. Cooper, while in Stephenville, wore a black worsted dress and a blue veil. Witness was at Mr. Cage’s on the morning they left Stephenville. They left in a two horse hack, one of the horses belonging to Mrs. Cooper and the other to the defendant. Mrs. Cooper’s step-brother was with them at that time, and defendant was in Alvarado. Witness did not remember where she and Mrs. Cooper went to from Scephenville, on that occasion. Witness was perfectly well and was not complaining when she left Sam Owens’s house to go to Stephen-ville, just before she was raped. The family, or some of them, stayed at Sam Owens’s a month or more. They reached Stephen-ville late on the evening of the rape, and had coffee, which the witness prepared, before sundown. The defendant joined in partaking of the coffee. The witness knew Mr. Creswell, having seen him two or three times. She saw Mrs. Creswell in Stephenville on Sunday evening after reaching Stephenville, and again on the next morning. The witness could not give the dimansions of the house in which the rape was perpetrated. The front room door faced south and the shed room door faced north, there being a door to the middle room. All of the doors of the house were open on the night of the rape. Witness retired on that night a little after dark, which was before the defendant and his wife retired. The witness made no outcry when her father came to her bed and aroused her. Witness did not know where her step-mother was when the raping occurred, unless she was on the pallet spread down for her and the defendant. The witness did not resist, her father, but begged him to desist from his defilement of her person. It was dark in the room, but witness could see a person standing near her. The witness slept in her chemise only. When the defendant came to her pallet he placed one of his hands on her stomach. He then opened her legs, and raised her thighs with one of his hands. Witness’s brother’s name was W. E. Cooper. The witness knew Messrs, Bibbs, Howell and McDowell.</p> <p>On her re-examination, the witness said that the defendant knew why his wife and witness went to San Antonio. She saw Mrs. Cooper show him the paper on which she- was basing her appeal for alms. Defendant raised no objections to the witness taking that tour with Mrs, Cooper. In saying that she did not resist her father when he came to her bed and raped her, the witness meant that she did not struggle with and fight him. She was afraid to do so, because he threatened to kill her if she did not hush and lie still. She cried and begged him to desist, but to no purpose. Sam Owens did not ask witness at his house if she and her,step-mother had been to San Antonio and Austin, but he did ask Mrs. Cooper. He asked witness if they had been to Cleburne, and witness told him truthfully that they had. It was dark in the room, but witness could have seen any one going in or out of the room. Witness knew that the man who came to her bed and raped her was her father, the defendant. He spoke to witness and witness saw and knew him. He did not leave the room after he got through with the witness, but went back to his pallet. Witness’s legs were crossed when her father got on top of her, and he pulled them open with his hands. The compulsory sexual process pained witness very greatly and kept her privates sore for a week. Witness was some months past thirteen years old when she was raped. When witness and her step-mother left Stephenville to go to Sam Owens’s on Tuesday morning after the rape they rode one horse, the witness riding behind. They remained at Sam Owens’s until Thursday, when they went to Mr. Hurley’s, and on Friday they went to Stephenville and attended the examining trial of the defendant. Defendant penetrated the private organ of the witness to the depth of about an inch.</p> <p>Doctor Ritchie testified, for the State, that he made a medical examination of the private parts of the witness Lula Cooper, on the day of the defendant’s examining trial, which was several ■days after the alleged rape. The examination was made by the witness and Doctor M. S. Crow, in Captain Hyman’s office. Witness found Lula’s private organ very much swollen, inflamed and bruised. The condition of the organ was such as to render the digital examination very difficult and very painful to the patient. Both the outer and inner lips and the vaginal canal were bruised, congested and inflamed. Witness observed, also, a fluid discharge, but could not tell by a naked eye examination whether or not it was semen. The hymen is located from one to three inches inward from the outside of the external parts of the female organ. It was the witness’s professional opinion that the private member of an adult could.have penetrated Lula’s private organ to the depth of an inch and a half without rupturing the hymen and at the same time have produced the inflammation, congestion and bruises he found on the parts. Witness did not know whether Lula’s hymen was ruptured or not, the bruised, swollen and congested condition of her organ rendering a thorough examination difficult and painful in the extreme. Witness did not think that the condition of Lula’s organ was the result of masturbation. On the contrary, he thought it the result of applied force. Menstrual flow sometimes produces inflammation and congestion of the parts, but never to the extent manifest in this case. Lula was but a child in stature, constitution and development. After the penetration and laceration of her parts in the manner described by witness they would heal up and become normal. The condition of Lula’s organ was inconsistent with the idea of masturbation, because the pain of the process, if so violent as the condition of the organ indicated, would have overcome the sensual craving. It was the professional opinion of the witness that the girl’s privates had been penetrated to some extent by the organ of a male person.</p> <p>Cross examined, the witness testified that the female organ frequently retains semen. Congestion and inflammation in such a case as Lula’s would ordinarily reach their height in from twenty-four to thirty-six hours, and would subside in about the same time. The discharge observed by the witness was of blood and mucus, but he could not tell whether or not the mucus was semen. It looked like semen, but witness examined it only with the naked eye. The blood was not clotted: Arterial blood clots, but menstrual blood does not. Inflammation of the private organ of a female can be caused by other means than copulation. If the inflammation was caused by copulation with consent it would not be so great as in this case. The insertion of an adult penis into the privates of a child no larger than Lula would probably produce an outcry. The witness stated, on his re-examination, that two days’ horse back riding after such an injury as that inflicted upon Lula would cause the inflammation to last longer and would retard healing. Had the hymen been ruptured the flow of blood, in the opinion of the witness, would have been greater.</p> <p>Mrs. Mose Hurley testified, for the State, that she knew the girl Lula Cooper, the alleged injured party. Witness heard of the offense some time in July. Lula and her step-mother, the defendant’s wife, came to witness’s house on the Thursday after the Sunday of the alleged rape. Lula then related to the witness the circumstances of the outrage upon her. Lula went to Stephenville on the next day to attend her father’s examining trial.</p> <p>William Creswell testified, for the State, that he knew the defendant and the prosecuting witness Lula, by sight. The witness first saw them about the middle of July, when they came to Stephenville. They reached Stephenville on Sunday evening and occupied the old vacant log house belonging to Colonel Hyman, which house was in sight of but some distance from the witness’s house. On the next Tuesday evening the witness saw a little boy at that house, crying. Witness and Mr. Chapman went to the house to see what was the matter. To their inquiries if anything was the matter, the defendant replied: “No, the little boy was left .here alone, and is crying about it.” Defendant and the little boy were the only persons witness saw at the house on that Tuesday evening.</p> <p>Doctor M. S. Crow testified, for the State, that, acting upon the request of the county attorney, and assisted by Doctor Ritchie, he made a medical examination of the private organ of the State’s witness, Lula Cooper. That examination was made a few days after the alleged rape. He found Lula’s genital organs swollen, congested and bruised. Witness’s examination extended as far as the hymen, or about one and a quarter inches into the organ. The outer and inner lips of the vagina and the vaginal walls were extended, inflamed and bruised. The condition of Lula’s private organ was such as to lead the witness to believe that “ a male organ had been thereabouts.” The witness did not think the condition of the girl’s privates was the result of menstruation or masturbation.</p> <p>Cross examined, the witness stated that horse back riding if the riding was done astraddle, bare back, on a raw boned horse, might inflame the privates of a female, but not to the extent that Lula’s privates were inflamed. Witness discovered no laceration or blood. Had there been copulation there would have been laceration. The witness examined the girl again on the day of this trial and found the hymen intact, and the parts in their normal condition.</p> <p>Re-examined, the witness stated that by copulation, as he used that word on his cross examination, he meant complete sexual connection between male and female persons. When he first examined Lula he came to the conclusion that her sexual organ had been penetrated by a male organ, and his last examination did not change that opinion. Injuries such as the witness discovered on the person of Lula Cooper could be inflicted by a male organ, and the parts recover and resume their normal condition. Inflammation can subside in thirty-six hours, according to the degree of violence inflicted, and can be protracted by such causes as horse back riding. Lula Cooper was yet a child in stature, constitution and development, but her sexual organ was large enough to receive that of an adult male. Her hymen was located between one and a quarter and one and a half inches within the vagina.</p> <p>Hose Hurley testified, for the State, that he first saw Lula Cooper and her step mother when they came to his house on the Thursday evening after the alleged rape, and reported that outrage to him. Witness went with them on the next day to Stephenville, and made complaint against the defendant, charging him with the rape of his own daughter. Lula had since lived in the witness’s family. The State closed*</p> <p>Doctor J. L. May was the first witness for the defense. He testified that he examined the genital organ of Lula Cooper on the day of this trial, and found it in a normal condition. Her private parts were very small—too small to admit the witness’s finger as far as the hymen. Witness tried, but failed to introduce beyond the hymen a common sized lead pencil with a rubber end. The girl’s parts could have recovered from the alleged injury during the time that elapsed from the alleged perpetration of the offense to the time of this trial. The witness did not believe that the girl had ever been penetrated sufficiently to constitute rape. On his cross examination the witness stated that his first examination of the girl was made on the day of this trial. It was possible that Lula’s private organ may have been penetrated by a male organ beyond the labia majora, or external lips of the organ.</p> <p>Mr. Williams testified, for the defense, that he saw Lula Cooper in Stephenville when she and a veiled lady came to Cage’s store soliciting alms. The lady claimed to be blind. KTo man was with them on that occasion. Witness saw them again on the next day in the company of a man.</p> <p>Bud Riley, the next witness for the defense, testified that early in 1885, he saw a lady and a little girl camped on the creek, a quarter of a mile from town. On the evening of the same day the witness saw the same parties in Stephenville begging. He saw them again on the next morning in a hack accompanied by a man. Cross examined, the witness said he did not see the parties in camp on the creek, but seeing them on the creek he thought they had been camped there. Witness had never seen the parties since.</p> <p>G-. W. Jordan testified, for the defense, that he saw Mrs. Cooper and a little girl begging on the streets of Stephenville about two months before the alleged rape. He saw no more of them until at the examining trial of the defendant.</p> <p>Sám Owens testified, for the defense, that he married the daughter of defendant’s present wife, and lived fifteen miles southeast of Stephen vi lie. Mrs. Cooper and Lula came to witness’s house in July, 1885, the defendant being there when they arrived. Witness asked Lula where she and her step mother had been. She replied that they had been to Cleburne and Alvarado, and no where else. Mrs. Cooper’s reputation for chastity was said to be bad. The defendant’s reputation for chastity was good. On his cross examination the witness stated that he had never heard the defendant’s reputation for chastity discussed one way or the other. He had known defendant about twelve months. Mrs. Cooper told witness in answer to his question, in the presence of Lula, that she and Lula had not been either to Austin or to San Antonio.</p> <p>Mr. Lane testified, for the defense, that he knew defendant two years in Cleburne, Johnson county, Texas. His reputation for chastity was good. His wife, Annie Cooper, whom he married about a year and a half before this trial, sustained a bad reputation for virtue and chastity. Lula Cooper had associated with Mrs. Cooper closely since her marriage to defendant, and had attended her on several extended trips.' On his cross examination, the witness said that he knew the defendant and Miss Annie in Cleburne before their marriage. Mrs. Cooper’s reputation for chastity was bad before her marriage to defendant. He had never heard any thing said one way or the other about the defendant’s reputation for chastity. Mrs. Cooper’s reputation was often discussed in the witness’s presence, and pronounced lewd, both before and after her marriage to defendant, but had been oftenest discussed since she married defendant and got to running about the country with the girl. Defendant’s first wife died some months before his marriage to his present wife, Annie. Mrs. Annie Cooper and Lula always came back from their trips <c full handed.”</p> <p>E. B. McDonald testified, for the defense, that he had known defendant, his wife Annie, and his daughter Lula, about three years. Mrs. Cooper’s reputation for chastity was bad, and the defendant’s good. On cross examination, the witness said that he had never heard the defendant’s reputation discussed. Mrs. Cooper was always considered a regular Jezebel, and her lewdness was common talk. Witness did not know whether the defendant was apprised of Annie’s reputation when he married her, or not. Mr. Bibbs testified substantially as did the witness McDonald.</p> <p>Lula Cooper, recalled by the defense, testified that she crossed her legs before the defendant got on her. He pressed them, apart, and witness made no effort to recross them. Witness was thirteen years old in December, 1884. She had never experienced a menstrual flow. Retained by the State in rebuttal, the defense having closed, the witness said that Sam Owens never asked her if she and Mrs. Cooper had been to Austin and San Antonio. He asked witness if they had been to Alvarado, and she replied that they had not. He then asked if they had been to Cleburne, and she told them that they had. Mrs. Cooper and witness never camped on a stream near Stephenville.</p> <p>Doctor Crow, recalled by the State in rebuttal, emphasized his previous statement that, though Lula Cooper was a child in stature, constitution and development, her genital organ was sufficiently large to receive an average penis of an adult male person.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

<p>Murder—Evidence—Practice.—If, when a party is examined as a witness in proceedings before a magistrate’s court or a coroner’s inquest, he is charged or suspected of the crime then under investigation, and is then aware that he is so charged or suspected, his testimony before the said investigation can not be received against him upon his trial for the same offense. See the opinion in extenso for circumstances under which it is held that the defendant was in such duress when testifying before the coroner’s inquest that his testimony before that tribunal was incompetent against him on this trial. The mere fact, however, that defendant was a witness at the inquest, and was placed under the “rule,” would not bring his then testimony within this rule.</p>

Tried below before the Hon. A. W. Moursund. The opinion sufficiently discloses the case. The penalty assessed by the verdict was a term of seven years and six months in the penitentiary.

Tried below before the Hon. I. B. McFarland. The appellant in this case was convicted of the offense of incest, the indictment charging the criminal act to have been committed with his step daughter, Ada Bland, in-Washington county' Texas, on the first day of February, 188(5. A term of five years in the penitentiary was the penalty assessed by the verdict. Ada Bland was the first witness for the State.

Tried below before the Hon. Eugene Williams. The conviction in this case was for receiving stolen property, knowing the same to be stolen. The penalty assessed against the appellant was a term of two years in the penitentiary. H. C. Osborne was the first witnesS for the State. He testified that he lived on Mustang Prairie, in Falls county, Texas, during the greater portion of the year 1883.

Tried below before the Hon. B. F. Williams. The indictment in this case charged the appellant with the murder of the infant- Steagald, in Clay county, Texas, on the twentieth day of January, 1886. The effort of the State was to establish against the appellant a murder scarcely paralleled in atrocity by any recorded in the annals of crime, and unexcelled in deliberate diabolism by any yet conceived as fiction.

Tried below before the Hon. Eugene Williams. The conviction in this case was for an assault to murder one G. H. Gassaway. The penalty assessed against the appellant was a term of three years in the penitentiary. Captain G. H. Gassaway was the first witness for the Sta te. He testified that he lived about eight miles west of the town of Marlin, Falls county, Texas. He knew the defendant on December 23, 1885, prior to which date he had seen him a few times about town.

Tried below before the Hon. L. D. Bradley. The conviction in this case was had under an indictment charging the appellant with the theft of an estray horse, in Navarro county, Texas, on the twentieth day of May, 1881. A term of five years in the penitentiary was the penalty assessed by the verdict. Ben Sweatman was the first witness for the State.

Tried below before the Hon. G. H. Noonan. The indictment in this case charged the appellant with the murder of Wm. M. Russell, in Bexar county, Texas, on the twentieth day of December, 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. A. R. Jones was the first witness for the State.

Tried below before the Hon. B. F. Williams. The indictment in this case charged the appellant with the rape of Jane Taylor, who is shown by the evidence to be his own daughter, in Clay county/Texas, on the twenty-seventh day of December, 1885. His trial resulted in his conviction of assault with intent to rape, and he was awarded a term of seven years in the penitentiary. Tom Taylor was the first witness for the State.

Tried below before the Hon. D. H. Scott. The conviction in this case was for forgery, and the penalty assessed by the verdict was a term of two years in the penitentiary.

Tried below before the Hon. R. Maltbie. The conviction was for forgery, and the penalty assessed was a term of two years in the penitentiary. J. S. B. Appollas, the senior member of the firm of Appollas & Halsal, merchants at Weston, Collin county, Texas, testified, for the State, that the defendant presented the order described in the indictment, and asked for goods on the same.

Tried below before S. R. Perryman, special judge. The conviction in this case was for theft and the penalty assessed by the verdict was a term of three years in the penitentiary. Will Allphin was the first witness for the State. He testified that he lived in Madison county, Texas, and lived there during the year 1883.. The witness lost the cow described in the indictment from her range on “P. D.” prairie, about five miles from the town of Madisonville, in November, 1883.

Tried below before the Hon. D. P. Marr. The indictment charged the appellant and Manuel Ingle, jointly, with the theft of a calf, the property of one, L. J. W. Edwards, in Frio county, Texas, on the twenty-ninth day of April, 1885. A severance being awarded, the appellant was placed upon his trial, was convicted, and awarded a term of two' years in the penitentiary. J. M. Brooks was the first witness for the State.

Tried below before the Hon. J. A. B. Putman. The conviction was for the theft of a mare and colt, the-property of Y. T. Cummings, in Hopkins county, Texas, on the eighteenth day of August, 1885. A term of five years in the penitentiary was the penalty assessed by the verdict. Y. T. Cummings was the first witness for the State. He testified that he lived at Sulphur Springs, Hopkins county, Texas.

Tried below below before the Hon. J. G. Hazlewood. The conviction in this case was for cattle theft and the penalty assessed against the appellant was a term of two years in the penitentiary.

Tried below before the Hon. W. H. Slaughter. The conviction in this case was for keeping a disorderly house, and the penalty imposed by the verdict was a fine of two hundred dollars.

Tried below before the Hon. W. A. Blackburn. The conviction was for perjury, the false statements assigned as perjury appearing, in substance, in the statement of the case; and the penalty assessed against the appellant being a term of five years in the penitentiary. B. H. Turner, district clerk of Bell county, Texas, was the first witness for the State. He identified the books in evidence as the records of the district court of Bell county, Texas.

Tried below before the Hon. J. M. Hall. The indictment in this case charged the appellant with the murder of Daniel Bibles, in Bosque county, Texas, on the fourth day of April, 1886. His trial resulted in his conviction of murder in the second degree, his punishment being assessed at a term of ten years in the penitentiary. J. A. Bibles, the father of the deceased, was the first witness for the State.

Tried below before the Hon. D. H. Scott. ' The appellant in this case was convicted in the first degree for the murder of one Henry Moore, in Lamar county, Texas, on the sixth day of January, 1885. A life term in the penitentiary was the penalty assessed. John Crowder was the first witness for the,State. He testified that he and the defendant lived in the Indian Territory in January, 1885.

Tried below before the Hon. T. L. Nugent. The conviction in this case was for the theft of a horse, the property of J. A. Fry and Ira Millican, in Erath county, Texas, on the first day of April, 1884. A term of five years in the penitentiary was the penalty assessed against the appellant. Ira Millican was the first witness for the State.

Tried below before the Hon. Eugene Williams. Under an indictment charging him with the murder of William P. Houghston, in McLennan county, Texas, on the eighth day of September, 1885, the appellant was convicted of murder in the second degree, and his punishment was assessed at a term of fourteen years in the State penitentiary. Kate Horton was the first witness for the State.

<p>Appeal from the District Court of Rains. Tried below before the Hon. J. A. B. Putman.</p> <p>The opinion sufficiently discloses the case.</p>

Tried below before the Hon. John Alexander, County Judge. The conviction in this case was for pursuing the occupation of selling intoxicating liquors without having first paid the occupation tax levied therefor. The penalty assessed was a fine of four hundred and fifty dollars. The opinion states the effect of the evidence adduced upon the trial.

Tried below before the Hon. H. C. Pleasants. The conviction was for the theft of a horse, and the penalty imposed was a term of five years in the penitentiary. The opinion discloses the case.

Tried below before the Hon. J. C. Russell. The conviction in this case was for the rape of Concepcion, alias “ Chona” Olivera, in Cameron county, Texas, on the tenth day of August, 1886. The death penalty was assessed against the appellant. The prosecutrix, Concepcion Olivera, was the first witness introduced by the State. She testified that her name was Concepcion Olivera, but was generally called “Chona,” which was a common pet or nick name for Concepcion.

Tried below before the Hon. ft. H. Coleman, county judge. The conviction in this case was for keeping a disorderly house, and the penalty assessed againt the appellant was a fine of one hundred dollars.

Tried below before the Hon. R. H. Coleman, county judge. This conviction was for keeping a disorderly house. It was had upon an indictment, the charging part of which reads as follows: “* * * That Frankie Loraine, late of said county, on the tenth day of March, in the year of our Lord, 1886, in Victoria county, Texas, did keep a disorderly house, said house being then and there kept for the purpose of public prostitution.

Tried below before the Hon. J. C. Russell. This was a conviction for theft had under an indictment, the charging part of which reads as follows: “ * * * Jose Ma.

Tried below before the Hon. D. H. Scott. The conviction in this case was for fraudulently removing from the State certain mortgaged property, with intent to defraud the mortgagee, etc. The penalty imposed upon the appellant by the verdict was a term- of two years in the penitentiary.

<p>Appeal from the District Court of Red River. Tried below before the Hon. D. H. Scott.</p> <p>The conviction in this case was for the burglary of the house of one Alice Johnson, with intent to rape the said Alice Johnson, in Red River county, Texas, the eighteenth day of October, 1886. A term of two years in the penitentiary was the penalty assessed against the appellant.</p> <p>Alice Johnson was the first witness for the State. She testified that, on the night of October, 18, 1886, the defendant raised the window of the house in which she was living, entered the house, and got in the bed in which she was sleeping and attempted to ravish her. The witness was asleep when he entered the room and got into her bed. He had pulled up her clothes and was proceeding to insert his male member into her sexual organ when she awoke. She sprang out of bed as soon as she realized the defendant’s presence, hallooed at him, and he desisted. Witness then lit a lamp and ran to the house of a Mr. Craig, one of her neighbors, to report the assault and ask for protection. Finding Mr. Craig absent, she returned and found the defendant still standing in the door, which she had opened. She grasped a piece of broom stick and struck at defendant. He avoided the blow and left, and witness saw him no more on that night. Early on the next morning witness reported the fact to Mr. Craig, and as soon as she got breakfast she went to Esquire Stanley and reported.</p> <p>C. B. Craig testified, for the State, that the prosecutrix, Alice Johnson, lived on his place, occupying a room about twenty yards from his dwelling house. On the morning after the alleged burglary and assault, the said Alice Johnson told witness and his wife that the defendant, at some hour of the night, pushed open the window of her room, and entered her room through the said window, and got into her bed; that she awoke, pushed him and hallooed, and that he thereupon sprang out of the room through the window, and escaped, and that she recognized him as he went out of the window. At the same time Alice told the witness that she went to his house and called for him just after the assault upon her, but she said nothing about the defendant attempting to ravish her.</p> <p>Five different witnesses for the State, one of whom was a physician, testified that they had long known the defendant, and that, basing their judgment of the defendant’s mental condition upon that acquaintance, they considered him mentally as sound as the average negro, and possessed of sufficient knowledge and understanding to know right from wrong. The State closed.</p> <p>Caroline King was the first witness for the defense. She testified that the defendant was her son, and was nineteen years old. The witness and the other members of her family had always considered the defendant an idiot. He left home at an early age and went to town. His father would often go to town, take him back home, and chastise him with little or no mercy, but could never make him stay at home or work. Defendant never learned to perform other than the very simplest tasks of work.</p> <p>William King was the defendant’s next witness. He testified that he and the defendant were brothers. The witness had always regarded the defendant as an idiot, and knew that he was so regarded by the other members of the family. It had been impossible to teach the defendant to do any kind of farm work, although strenuous efforts to teach him had been made. His father had resorted to an excessive use of the whip, but could do nothing with him about work. The defendant had never been able to learn his letters, nor had he ever been able to learn to count five. The witness had, time and time again, attempted to teach defendant to count. He had arranged corn and other such objects in rows, but had never been able to teach defendant to master numerals to the extent of five.</p> <p>Amos McCulloch and John McCulloch were the next witnesses, in the order named, for the defense. They testified that they had known the defendant long and intimately. Judging of mental capacity by their acquaintance with him, the witnesses pronounced him to be mentally very weak, and utterly incapable of distinguishing wrong from right.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. Frank Willis. The conviction in this case was for the the theft of a horse, the property of Ike Mansker, in Wheeler county, Texas, on the twentieth day of June, 1886. A term of five years in the penitentiary was the penalty imposed by the verdict. Ike Mansker was the first witness for the State. He testified, in substance, that he lived in the town of Mobeetie, Wheeler county, Texas.

Tried .below before the Hon. G. H. Noonan. The opinion discloses the entire case. The penalty assessed by the verdict was a term of three years in the penitentiary.

Habeas Corpus on appeal from the District Court of Bexar. Tried below before the Hon. G-. H. Noonan. The appellants in this case, J. T. O’Connor, Abbie M. O’Con-nor and Mattie Collins, were held under a capias issued from the justice’s court of precinct number one of Bexar county, Texas, on a charge against them of the murder of the infant child of the said Mattie Collins.

<p>Scire Facias—A Recognizance, as defined by Article 283 of the Code of Criminal Procedure, is an undertaking entered into before a court of record in session, by the defendant to a criminal action and his sureties, by which they bind themselves respectively in a sum fixed by the court that the defendant will appear for trial before such court upon the accusation preferred against him. Under this definition a recognizance which recites the principal’s obligation to the State in a fixed sum, but does not bind him to appear before the court at a fixed time, and which binds only the surety for the appearance, is per se invalid, and is illegal in that it is more onerous than the law requires. See the opinion in extenso for such a recognizance.</p>

Tried below before the Hon. J. C. Russell. The opinion states the case. The penalty assessed against the appellant was a fine of one hundred dollars and confinement in the county jail for one month.

Error from District Court of Webb. Tried below before the Hon. J. C. Russell. The writ of error in this case is prosecuted from a final judgment on the forfeited appearance bond of Pedro Valdez, bailed under an indictment for felonious theft. The amount of the bond and judgment was three hundred dollars.

Tried below before the Hon. O. C. Kirven, County Judge. This was a conviction for carrying a pair of brass knuckles about the person, the penalty assessed being a fine of twenty-five dollars. The case was tried by the court without the intervention of a jury. The court found, from the evidence, that the defendant, at the time charged in the information, had on his person a pair of steel knuckles.

<p>1. Disturbing the Peace—Charge of the Court.—The private character of a private residence is not even temporarily affected by the assemblage of a large number of invited guests to witness a marriage ceremony. See the statement of the ease for a special requested instruction upon a trial for disturbing the peace by cursing, etc., in a private house, held to have been properly refused.</p> <p>2. Evidence—Venue of the offense is an issue indispensable to the legality of a conviction, and must affirmatively appear by the record on appeal to have been proved.</p>

Tried below before the Hon. O. C. Kirven, County Judge. The conviction in this case was for false packing by putting sand and dirt in a bale of cotton for the purpose of defrauding, and the penalty imposed was a fine of fifteen dollars. The single witness for the State testified that he ran a certain gin in Freestone county. On or about November 1, 1884, defendant brought a bale of unginned cotton to the gin, and dumped it into a stall.

Tried below before the Hon.. W. H. Ford. The conviction in this case was for the burglary of the house of B. F. McDonough, in Jefferson county, Texas, on the fifteenth day of September, 1886. The penalty assessed against the appellant was a term of two years in the penitentiary. The testimony established the fact that the defendant entered McDonough’s house through a window, about eight o’clock in the morning, and was arrested while in the house.

Tried below before the Hon. W. H. Ford. The conviction in this case was for extortion, and the penalty imposed was a fine of twenty-five dollars.

Tried below before the Hon. A. S. Walker. The indictment in this case impleads the appellant and one M. Shubert for the the theft of a horse, the property of H. B. Shafer. This is one of the series of prosecutions growing out of the arrest of the appellant and the said Shubert in Austin Texas, early in June, 1885, for theft of a number of horses.

Tried below before the Hon. W. B. Wall, County Judge. The indictment charged the appellant and George Robinson, jointly, with the theft of four hogs, of the value of three dollars each, the property of Thomas Plummer, in Houston county, Texas, on the second day of January, 1884. The penalty imposed upon the appellant, who was alone on trial and convicted in this case, was a fine of forty dollars, and confinement in the county jail for the period of ten days.

Tried below before the Hon. L. D. Bradley. This appeal is prosecuted from a judgment upon the forfeited appearance bond of W. J. alias W. T. Harrell • alias Sam Pryor, bailed under a pretended indictment charging him with cattle theft. The amount of the bond and judgment was two hundred dollars.

Tried below before the Hon. J. M. Smither, County Judge. The offense attempted to be charged by the information in this case, and for which the appellant was convicted, was a misdemeanor theft. The penalty imposed was a fine of fifty dollars.

R. Maltbie, The first count in the indictment in this case, upon which the appellant was tried and convicted, charged the appellant with the embezzlement of an organ, of the value of fifty-seven dollars, the property of R. A. Caylor, in Grayson county, Texas, on the twenty-first day of September, 1885. A term of two years in the penitentiary was the penalty assessed by the jury. R. A. Caylor was the first witness for the State.

Tried below before the Hon. E. Hobby. The conviction in this case was based upon an indictment which charged the appellant with the theft of one head of cattle, the property of John West, in Liberty county, Texas, on the first day of May, 1884. The penalty assessed against the appellant was a term of two years in the penitentiary. John West was the first witness for the State.