Volume 23 — Texas Court of Appeals Reports

Tried below before the Hon. W. H. Ford. The indictment in this case charged the appellant with the rape of Cordelia Holst, a female under the age of ten years, in Jefferson county, Texas, on the twenty-third day of August, 1886. The conviction was for assault, with intent to rape, and the penalty assessed was a term of two years in the penitentiary. Oscar Holst was the first witness for the State.

<p>Appeal from the District Court of Travis. Tried below before the Hon. A. S. Walker.</p> <p>This conviction was for swindling, and the penalty assessed against the appellant was a term of four years in the penitentiary. Ho statement of the facts in proof seems necessary.</p>

Tried below before the Hon. J. V. Cockrell. The indictment in this case charged that the appellant, on August 31, 1886, did, of his malice aforethought, kill William Glazner, by striking and beating him with a bar of iron. The jury found him guilty of murder in the second degree, and awarded him a term of twenty-three years in the penitentiary.

Tried below before the Hon. Anson Rainey. The conviction in this case was had under the second count of an indictment, which count charged the appellant with the theft of a steer, the property of A. Stayton, in Ellis county, Texas, on the seventeenth day of July, 1884. A term of five years in the penitentiary was the penalty assessed. A. Stayton 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 the burglary of the restaurant of Tom Wing, in Bexar county, Texas, on the third of July, 1886. The penalty assessed against the appellant was a term of nine years in the penitentiary.</p> <p>The substance of the proof in this case is sufficiently summarized in the opinion of the court.</p>

<p>1. Jurt Law—Special Venire—Sheriff’s Return.—In the return of a a sheriff upon a special venire, he set down in a column the names of twelve of the veniremen, and opposite the first name wrote “not found after diligent search.” Under this and opposite each of the other names he put ditto marks, to indicate the same return as to them. The defense moved to quash the writ because the return did not, as required by the Code of Procedure, Article 614, state the diligence used to summon the said veniremen and the cause of the failure to do so. The trial court permitted the sheriff to amend his return so as to show that each of said twelve veniremen had moved out of the county or was absent from it-The defense excepted to the overruling of the motion to quash, and also to the amendment of the return, and to the sufficiency of the return as amended. Held, that the amendment was properly allowed, and none of the objections are tenable.</p> <p>3. Bill of Exceptions—Practice.—Refusal of reasonable time for the preparation of a bill of exceptions is not material error when it does not appear that the party was or may have been in any wise prejudiced thereby. His bill of exceptions should show the prejudice or injury.</p> <p>3. Jury Law—Challenge por Cause—Practice.—An exception reserved to the overruling of a challenge for cause is of no avail when it does not appear that the party had exhausted his peremptory challenges, and consequently that an objectionable-juror was forced upon him.</p> <p>4. Same.—While the jury in a capital ease was being organized, and during a temporary absence of the defendant from the court room, a talesman was examined as to his qualifications and was peremptorily challenged by the State. The attention of the court being called to the absence of the defendant, further proceedings were stayed end the sheriff was sent to bring back the challenged talesman. After waiting an hour without avail, the court, over defendant’s objection, proceeded with the examination of the remaining talesmen. Held, that there was no material error in the action of the court, in as much as there is nothing to indicate that it either did prejudice, or could have prejudiced, any right of the defendant.</p> <p>5. Evidence—Opinion.—When an emotion, such as fear, anger, and the like, was manifested merely by demeanor or appearances not otherwise communicable, the witness may be allowed to describe its effect upon his mind, even though the effect be opinion. In this case a State’s witness testified that the defendant, about two hours before he killed the deceased, put his foot on the foot of the deceased and kept it there for about half a minute after the deceased remarked to him, “ that’s my foot you are on,” and then the deceased pushed the defendant’s foot off of his. The State, over defendant’s objection, asked the witness whether the defendant put his foot on the deceased’s in a jocular or an insulting manner; and the witness replied that he regarded the act as an insult. Held, that the question and answer were allowable. Note the sixth subdivision of the opinion of the court for a succinct but lucid exposition of the rules governing this species of testimony.</p> <p>6. Evidence—Motive.—A State’s witness being on the stand, the court, over objection of the defense, allowed prosecuting counsel to ask him if he had not had frequent difficulties with the defendant. The objections of the defense were that the question was irrelevant, incompetent, and calculated to moot the character of the defendant, which he had not put in issue. The trial judge, explaining the bill of exceptions, states that the defendant was “boss” on the witness’s ranch, and that the prosecuting counsel announced the object of the question to be to prove that the witness and the defendant had had difficulties, and that the witness had threatened the defendant to discharge him and employ the deceased in his place—thus showing a motive for the homicide, for which purpose alone the question was allowed. Held that the explanation shows sufficient reason for the allowance of the question.</p> <p>1. Confessions in Arrest—Res 6-estzb.—If inculpatory declarations of a defendant were res gestee, they are competent evidence agajnst him, notwithstanding they would be incompetent as confessions because he was in arrest when he made them. See the eighth subdivision of the opinion of the court in elucidation of this important distinction.</p> <p>8. Special Judge—Practice.—The statutes of this State confer upon a special judge “all the power and authority of the judge of said court, during such continued absence or inability (of the regular judge), and until the completion of any business begun before such special judge.” Pending the examination of the witnesses in this cause, the special judge before whom it was tried suspended the trial until the night of the succeeding day, and left the county and district. On his return and resumption of the trial, the defense moved to stay the proceedings and discharge the jury, on the ground that the adjournment of the trial was ultra vires, and that the departure of the judge from the county and district had. terminated his functions and vacated his office. Held that the action of the special judge was not ultra vires nor in violation of any law; and consequently the motion of the defense was properly overruled.</p> <p>9. Verdict—Practice.—In this case it is complained that the verdict of conviction was, under order of the court, received and entered on the minutes on the Sabbath day, and that, in the absence of the defendant, the judgment was rendered on the succeeding day. Held, that a verdict may lawfully be returned and entered on Sunday, and that the presence of the defendant is not necessary when the judgment of conviction is entered by the clerk.</p>

<p>Unlawful Sale op Liquor to a Minor—Evidence.—To support a conviction for the offense of knowingly selling intoxicating liquor to a minor the evidence must show that at the time the liquor was sold the seller knew the purchaser to be a minor.</p>

Tried below before the Hou. W. A. Blackburn. The conviction in this case was for fraudulently disposing of mortgaged property, the penalty assessed being a term of two years in the penitentiary. The disposition of the appeal demands no statement of the facts proved.

Tried below before the Hon. W. A. Blackburn. Under an indictment for the rape of Lena Fields, in Bell county, Texas, on the fifth day of November, 1886, the appellant was convicted of an assault with intent to rape, and his punishment was assessed at a term of four years in the penitentiary. B. J. Fields, the father of the alleged injured female, was the first witness for the State.

Tried below before the Hon. J. S. Sherrell, county judge. The appellant in this case was held under a capias charging him with the violation of the local option law. He sought his discharge under a writ of habeas corpus sued out and heard before the county judge, who refused to discharge him, and he appeals to this court from that order.

<p>ON RBHEARINH.</p> <p>1. Theft—Ownership—Evidence.—See the opinion and the statement of the case for evidence held insufficient to support a conviction for theft, because insufficient to support the allegation of ownership.</p> <p>3. Same.—Bill of Sale executed by the general owners of the cattle subsequent to the alleged theft of the same from the special owner, was improperly admitted, because irrelevant, and because, not being of record at the time of the theft, it was not evidence of ownership.</p> <p>3. Same—Jury Law.—A citizen, house holder and voter of an unorganized county is a competent juror to serve on juries impaneled in the organized county to which the unorganized county of his residence was attached for judicial purposes.</p>

Tried below before the Hon. R. Maltbie. The indictment charged the appellant with the murder of one Pat O’Haron, in Grayson county, Texas, on the twenty-eighth day of August, 1885, by stabbing the said O’Haron with a knife. The trial resulted in the appellant’s conviction for manslaughter, and a term of two years in the penitentiary was assessed against him as punishment.

Habeas Corpus on appeal from the District Court of East-land. Tried below before the Hon. J. C. Randolph. The applicant in this case was held under an indictment which charged him with the murder of W. R. Todd, in Eastland county, Texas, on the first day of July, 1884. He sued out a writ of habeas corpus, after a mistrial upon the said indictment, but upon a hearing of the same he was refused bail, and was remanded to the custody of the sheriff of Eastland county.

Tried below before the Hon. A. S. Walker. This was the second application for bail made by the applicant, Tom Smith, Jr., who was under indictment for the murder of Israel Clemons on October 29, 1886. The indictment charged murder upon malice aforethought, and perpetrated by shooting the said Clemons with a pistol. Applicant was a young man associated in the management of the Eaymond House, a hotel situated on Congress avenue, in the city of Austin.

<p>1. Evidence—Practice.—If the defendant elicits from a witness an answer prejudicial to his interest, he is not entitled to have it excluded from the consideration of the jury.</p> <p>2. Murder—Charge of the Court—Retreat.—A person unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant, when the attack is such as produces a reasonable expectation or fear of death or some serious bodily injury; and in many eases it is the imperative duty of the trial court tó so instruct the jury. Such an instruction, however, was unnecessary and would have been irrelevant in this case, inasmuch as the evidence adduced to show self defense affirmed that the defendant was in full retreat when he fired the fatal shot.</p>

Tried below before the Hon. H. C. Pleasants. The conviction in this case was in the second degree for the murder of Dolph Mathena, in Jackson county, Texas, on the eighteenth day of November, 1884 The change of venue to Victoria county, in which county the trial was had, was awarded upon the application of the appellant. The penalty assessed by the verdict was a term of five years in the penitentiary. George Washington was the first witness for the State.

Tried below before the Hon. George McCormick. The indictment in this case charged the appellant with the murder of one Frank Mandrella, in Wilson county, Texas, on the twentieth day of June, 1886. The conviction was for murder in the second degree, and the penalty assessed was a term of ten years in the penitentiary. The opinion contains a full synopsis of the evidence.

Tried below before the Hon. J. M. Hall. Appellant was indicted for an assault upon J. H. Keith, with intent to murder him. He was found guilty, as charged in the indictment, and his punishment was assessed at a term of three years in the penitentiary. The material facts are clearly, though concisely, stated in the opinion of this court.

Tried below before the Hon. H. 0. Pleasants. The indictment charged that the appellant, on November 24, .1886, made an assault, with malice aforethought, upon Alex. Murphree, with the intention then and there to kill and murder him. The trial resulted in a conviction for aggravated assault, with the punishment assessed at a fine of twenty-five dollars and a month’s imprisonment in the county jail. Alex.

Tried below' before the Hon. J. Gr. Hazelwood. The material facts are sufficiently disclosed in the opinion of this court. A term of two years in the penitentiarv was the punishment assessed against the appellant.

Tried below before the Hon. George McCormick. The indictment was- joint against Dan Cochran, Allen Shuler and this appellant, and charged them with the burglary by force of an outhouse belonging to W. H. Bond and H. P. Bond, with intent to steal therefrom fifteen bushels of shelled oats. The date of the alleged offense was October 1, 1884.

Tried below before the Hon. George McCormick. This is a companion case to that of Charles Bond v. The State, next preceding. The punishment assessed against this appellant was two years in the penitentiary.

Tried below before W. 0. Campbell, Esq., special judge. The conviction in this case was in the second degree for the murder of Dan Wyant, in Robertson county, Texas, on the fourth day of July, 1885. The penalty assessed by the verdict was a term of five years in the penitentiary. Mrs. Gallagher was the first witness for the State.

Tried below before the Hon. A. S. Walker. The indictment in this case charged the appellant and Samuel Dunbar jointly with the murder of James Davis, in Williamson county, Texas, on the fifteenth day of June, 187!. The appellant, being alone upon trial, was found guilty of murder in the second degree, and his punishment was assessed at a term of five years in the penitentiary. J. J. Sides was the first witness for the State.

Tried below before the Hon. S. E. Frost. The indictment was presented in January, 1886, and charged that the appellant, on August 31, 1885, made an assault upon Mrs. A. B. Briscoe, with the intent to rape her. Appellant was found guilty, and a term of two years in the penitentiary was assessed as his punishment.

Tried below before the Hon. Sam. R. Frost. The conviction in this case was for an assault with intent to rape Miss Allie J. McIntyre, in Navarro county, Texas, on the twenty-seventh day of June, 1886. A term of five years in the penitentiary was the penalty imposed upon the appellant. G. T. McIntyre, the uncle of the prosecutrix, was the first witness for the State.

<p>1. Theft—Variance.—In a trial for the theft of a “horse,” the State was permitted, over objection by the defense, to prove that the animal was a mare. The objection was on the ground of variance between the allegation and the proof. Held no variance, and the objection was properly overruled.</p> <p>3. Evidence.—That the State, over objection, was allowed, in the cross examination of the defendant’s wife, to elicit testimony not germane to her evidence in chief, is not reversible error unless the objectionable testimony was calculated to prejudice defendant’s rights.</p> <p>8. Same—Charge of the Court—Practice.—In a trial for horse theft the State introduced evidence tending to prove that, besides the animal in question, other horses were stolen at the same time and in the same neighborhood; but the trial court omitted to instruct the jury for what purposes the evidence was allowed, and this omission was relied upon in the motion for a new trial. The State’s case stood upon circumstantial evidence alone. Held that the omission in the charge, though not excepted to nor a proper instruction requested, was calculated to prejudice the rights of the defendant, and is therefore reversible error.</p>

Tried below before the Hon. R. E. Beckham. The opinion sufficiently states the facts germane to the ruling. The appellant was convicted of bigamy, and a term of three years in the penitentiary was the punishment assessed against him.

Tried below before the Hon. J. M. Hall. The conviction in this case was for the embezzlement of sixty-two dollars in money, the property of S. E. Moss, in Bosque county, Texas, on the twenty-first day of December, 1886. A term of two years in the penitentiary was the penalty assessed against the appellant. S. E. Moss was the first witness for the State.

Tried below before the Hon. J. G. Hazlewood. Appellant was convicted of an assault upon Frank Stoker, with intent to murder, and a term of two years in the penitentiary was assessed as punishment. There is no occasion for a statement of the evidence.

Tried below before the Hon. J. A. B. Putman. The indictment charged that the appellant, on October 13, 1886, made an assault upon W. B. Howard, with intent to kill and murder him. Appellant was found guilty as charged in the indictment, and his punishment was assessed at two years in the penitentiary. D. Krebs, for the State, testified that he lived in Kingston, Hunt county, Texas, and knew the defendant.

Tried below before the Hon. George McCormick. Appellant was convicted of the theft of a mule, the property of J. S. Holden, on February 14, 1882. A term of five years in the penitentiary was the punishment assessed against him. J. S. Holden, for the State, testified that he lived in Llano county, Texas, some hundred and fifty miles from the county seat of Gonzales county. He was the owner of the mare mule charged to have been stolen.

Tried below before the Hon. J. Gr. Hazlewood. The indictment charged the appellant with the murder of Hugh Mitchell, in Rusk county, Texas, on the thirteenth day of December, 1886. His conviction was for manslaughter, and the penalty assessed against him was a term of three and a half years in the penitentiary. Doctor H. C. Miller was the first witness for the State.

Tried below before* the Hon. -Eugene Williams. This was0a conviction in the first degree, with the death penalty attached, for the murder of D. P. Rice, in Falls county, Texas, on the fifth day of August, 1886. Doctor J. M. Witt was the first witness for the State. He testified, in substance, that'on the morning of August 5, 1886, he was summoned to attend D. P. Rice, whom he found lying in the shade of a wagon, about a mile and a half south of Eddy, in Falls county, Texas.

Tried below before the Hon. E. G. Bower, County Judge. The conviction was for selling whisky on Sunday, and the penalty assessed was a fine of twenty dollars. The single witness who was introduced on the trial testified that he was in defendant’s saloon on the Sunday charged in the indictment, and took several drinks of whisky, served by the defendant. He was very drunk and did not know whether the whisky was sold to him or not.

Tried below before the Hon. J. P. Hall, County Judge. The conviction in this case was for defacing a certain public school house, and the penalty imposed was a fine of five dollars. That the door of the Walling school house in Cooke county was split by being kicked open, and the lower sash of a window broken, on the night of February 14, 1885, was fully proved by the State, and not controverted by the defense.

Tried below before the Hon. Griffin Ford, County Judge. The conviction was for the unlawful sale of intoxicating liquor to a minor, and the penalty imposed was a fine of twenty-five dollars. The age of the purchaser was shown to be fifteen years at the time the liquor was sold to him by the defendant, but there was no proof that his minority was known to the defendant.

Tried below before the Hon. J. A. B. Putman. The conviction in this case was for an assault with intent to murder one W. R. Russell in Hunt county, Texas, on the fifth day of March, 1886. The penalty assessed against the appellant was a term of two years in the penitentiary. J. W. Barr was the first witness for the State.

Tried below before the Hon. F. A. Williams. The appellant in this case, upon his own plea of guilty, was convicted in the first degree for the murder of Albert Williams, in Henderson county, Texas, on the first day of October, 1886. The death penalty was assessed by the jury, John Williams was the first witness for the State.

Tried below before the Hon. Robert Kerr, County Judge. The opinion states the case. The penalty imposed by the jury was a fine of one hundred dollars.

<p>Appeal from the District Court of Travis. Tried below before the Hon. A. S. Walker.</p> <p>The case is fully disclosed in the opinion of. the court.</p>

Tried below before the Hon. E. W. Foster, County Judge. The conviction in this case was had under Article 248 of the Penal Code, defining the offense of illegally trading in county scrip.

Tried below before the Hon. H. O. Head. The indictment jointly impleaded the appellant, Charles Wilson, Albert Redding and Robert Bagley, and charged them with the theft, in Collin county, Texas, on December 17, 1886, of ninety-five dollars in money, the property of M. A. Tolan. The appellant being alone on trial, he was convicted, and his penalty was assessed at a term of three years in the penitentiary. M. A. Tolan was the first witness for the State.

Tried below before the Hon. S. M. Bradley, County Judge. The conviction in this case was for a violation of the local option law, and the penalty imposed was a fine of two hundred dollars. The disposition of this case does not necessitate a statement of the facts proved on the trial.

Tried below before the Hon. D. P. Harr. The appellant in this case was convicted of murder in the second degree, under an indictment charging him with the murder of his wife, Jesusa Olivares, and his punishment was assessed at a term of ten years in the penitentiary. The first Witness introduced by the State was Concepcion Cabasoz, who testified, in substance, that she was the mother of . the deceased.

Tried below before the Hon. N. G. Kittrell. The death penalty was assessed against the appellant in this case upon his conviction in the first degree for the murder of “Smutty My Darling,” in Walker county, Texas, on the fifteenth day of November, 1886. The transcript brings up no statement of facts. .

Habeas Corpus on appeal from the County Court of Rockwall. Tried below before the Hon. A. R. Hartman, County Judge, The appellant was held under a capias based upon an information charging him with a violation of the local option law. He sought his release by writ of habeas corpus, but, being remanded to custody, prosecuted this appeal.

<p>Appeal from the County Court of Tarrant. Tried below before the Hon, Sam Furman, County Judge.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. D. P. Harr. A fine of twenty-five dollars and imprisonment in the county jail for ten days constituted the punishment assessed against appellant for keeping and exhibiting a gaming bank, commonly called a monte bank, for the purpose of gaming. The principal witness for the State inculpated himself as interested in the game, and also as the dealer of it during part of the day alleged in the indictment.

Tried below before the Hon. G. H. Noonan. The conviction in this case was for the robbery of one Lawrence Kronkosky, in Bexar county, Texas, on the third day of November, 1886. The penalty assessed against the appellant was a term of forty years in the penitentiary.

<p>1. Rape.—Although, the statute (Penal Code, art. 528) contains but one general definition of rape, it embraces two separate offenses; 1, rape when committed upon “a woman," and, 2, rape when committed upon ‘‘a female under the age of ten years."</p> <p>3. Same—Indictment.—In order to constitute a rape of the first class, that is, rape of “a woman,” it is essential that the offense was committed by the means of “force, threats, or fraud, and without the consent” of the woman. It is not necessary in such case to allege or prove that the woman raped was over the age of ten years, and if such an allegation be contained in the indictment, it need not be proved, inasmuch as the offense would be complete without the words “over the. age of ten years.”</p> <p>3. Same.—Rape of the second class, that is, rape of “a female under the age of ten years,” comprehends none of the elements of rape of the first class, e. i., force, threats, fraud, or non-consent; but carnal knowledge is, in itself, ipso faeto rape.</p> <p>3. Same—Joinder of Offenses.—“Duplicity in an indictment is the joinder of two or more distinct offenses in a single count,”—a pleading tolerated in criminal practice only in rare exceptional cases. Whether or not offenses are to be treated as distinct depends upon whether or not they are embraced within the same general definition, and punishable in the same manner. If they are, then they are not distinct offenses, and may be charged in a single count in the same indictment.</p> <p>4. Same—Although in this State the general definition of rape covers both classes of the offense, and although the punishment is the same in each class (Penal Code, art. 524), yet the two classes are essentially distinct in their constituent elements. Quasre, can the two classes of rape as defined by our statute be joined, as in this case, in a single count? But note that the defendant failed at the proper time to move to quash the indictment, and, in any event, under the general rule that, if duplicitous, an indictment will not be quashed on that ground after verdict, the defendant can not now be heard to complain.</p> <p>5. Same—Charge of the Court.—If the indictment charges that the carnal knowledge was obtained by means of force, threats, or fraud, it charges a rape, whether perpetrated upon a female under or over the age of ten years, and if the indictment also contains an averment of non-age, the same may be treated as surplusage and eliminated. In this case the proof showed the female alleged to have been raped to be over the age of ten years, and the defendant requested the trial court to charge the jury, in substance, that, the indictment charging the non-age of the prosecutrix at the time of the offense, the defendant was entitled to an acquittal if the jury believed from the evidence that she was then over ten years old. The trial judge refused the special charge “because the indictment alleges that the offense was committed by means of ‘force and threats’ on the part of defendant, and the allegation of age of the prosecutrix or injured female is not of that descriptive character which requires corresponding proof, the State having proved force and threats.” Held, that the ruling was correct, and the special charge was properly refused.</p> <p>6. Rape—Pact Case.—See the statement of the case for evidence held insufficient to support a conviction for rape.</p>

<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 had under the first count of an indictment, which said count reads as follows: “ * * one L. Cohn, C. McGehee, W. P. Lee, T. L. Rowland, B. Brooks, T. J. Walsh, B. P. Blakely, N. M. Lovin, J. F. Coppage, C. Dalton, J. Conners, N. Reynolds and Ed. Donohoe, in the county of Tarrant, and State aforesaid, on the first day of April, 1886, with force and arms did unlawfully assemble and meet together, with divers other persons whose names are to the jurors .aforesaid as yet unknown, to the number of three hundred and more, with intent to aid each other by violence and intimidation to commit the offense of riot, and to prevent one J. B. Conlisk, by violence and intimidation, from running and operating a certain steam engine and cars along and upon a certain railway, said railway and engine and train of cars being then and there the property of the Missouri Pacific Railway company, a corporation duly incorporated; said Conlisk being then and there the conductor of said train of cars, and it being then and there the labor, avocation, employment and daily occupation of said Conlisk to run and operate, as such conductor, said steam engine and train of cars along and upon said railway, and to illegally deprive said Conlisk of his right to so run and operate said steam engine and train of cars, and to disturb him in the enjoyment of said right, by violence and intimidation as aforesaid, it being then and there the legal right of said Conjisk to run and operate said train of cars and steam engine, contrary,” etc.</p> <p>The appellant was the only one of the impleaded parties on trial in this case. His punishment was assessed at a fine of one hundred and twenty-five dollars.</p> <p>The evidence discloses that the appellant was one of a large number of “striking” employes of the Missouri Pacific Railway company, who,' on the first day of April, 1886, prevented a freight train of the said Missouri Pacific Railway company, in charge of conductor J. B. Conlisk, from proceeding from the city of Port Worth, Texas, over said company’s railway, by boarding the train, applying the brakes, killing the engine, etc.</p>

Tried below before the Hon. W. M. Key, County Judge. This conviction was for the willful obstruction of a public road, and the penalty assessed by the jury was a fine of twenty-five dollars.

Tried below before the Hon. J. F. McKee, County Judge. The offense charged against appellant was an aggravated assault on John J. Reither by cutting him with a knife, the same being a deadly weapon, etc. The jury convicted the appellant, and assessed against him a fine of twenty-five dollars.

Tried below before the Hon. G. H. Noonan. Upon substantially the same evidence as that developed upon his former trial (22 Texas Ct. App., 26), the appellant in this case was convicted of perjury, and was awarded a term of five years in the penitentiary as punishment.

Tried below before Hon. W. M. Key, County Judge. The opinion sufficiently states the case. The punishment of appellant was assessed at a fine of twenty-five dollars.

Tried below before the Hon. A. S. Walker. A term of two years in the penitentiary was the penalty imposed on the appellant by the jury, upon his conviction for forgery by altering a written account literally against “The Senate Chamber of the Twentieth Legislature,” but in effect against the State of Texas.

Tried below before the Hon. J. C. Randolph. This conviction was for the theft of a cow, alleged to be the property of John Merchant. The penalty assessed against the appellant was a term of two years in the penitentiary. The evidence adduced on the trial is summarized in the opinion of the court.

<p>1. Arson—Intent—Case Stated—Charge of the Court—Case Overruled.—Under the Penal Code of this State the ■willful burning of any “house” is arson, and a house is any building, edifice or structure enclosed with walls and covered, whatever the materials used for building. Though the house be neither destroyed nor seriou ' injured, the “burning ” is complete -when the fire has communicated to it, and, if the burning was designed, it is immaterial by what means the fire was communicated. Appellant, while confined in the wooden prison of a county poor farm, set fire to the roof of the prison, burning a hole therein. Being tried for arson, there was no evidence tending to disclose with what intent he set fire to the building. To the charge given by the trial court to the jury the defense objected, in substance, because it did not instruct for an acquittal if the appellant’s intent was to effect an escape, and not to consume or injure the building. Reid, on a review of both elementary and adjudicated authority, that the exception to the charge was not well taken. Delaney’s ease, 41 Texas, 601, is overruled on this point.</p> <p>2. Accomplice Testimony.—Concealment of knowledge that a felony is to be committed does not make the party concealing it an accomplice or a particeps criminis, and therefore does not necessitate corroboration of his testimony inculpatory of the accused.</p>

Tried below before the Hon. B. L. Richey, County Judge. A fine of twenty dollars was the punishment adjudged against the appellant. All material facts are disclosed in the opinion of the court.

Tried below before the Hon. J. V. Cockrell. The indictment charged the appellant with the theft, on October 10, 1885, of “one head of cattle,” the property of Dick Oldham. The jury found him guilty, and assessed his punishment at confinement in the penitentiory for two years. Oldham, the alleged owner, was the first witness for the State. He testified that in 1885 he owned and exclusively controlled a stock of cattle which ranged in Haskell, Shackleford and Jones counties.

Tried below before the Hon. Frank Willis. The appellant in this case was convicted in the second degree under an indictment charging him with the murder of Bent Blackburn, in Wheeler county, Texas, on the thirteenth day of February, 1887. The penalty imposed was a term of five years in the penitentiary. Henry White, the first witness for the State, testified, in substance, that he was in the barracks at Fort Elliot, Texas, on the night of February 13, 1887.

<p>Aggravated Assault and Battery—Fact Case.—Reasonable chastisement inflicted by a school teacher upon a pupil for a violation of a rule of the school, even though the violation did not occur at the school house nor during school hours, does not, under the laws of this State, constitute an assault. See the opinion in extenso for the substance of evidence held insufficient to support a conviction for aggravated assault and battery.</p>

<p>Appeal from the District Court of Comanche. Tried below before the Hon. J. C. Randolph.</p> <p>The indictment charged the appellant with perjury, alleged to have been committed by him in his testimony at an examining trial of C. A. Lee upon a charge of incest. Appellant was found guilty by the jury, and his punishment was assessed at a term of five years in the penitentiary.</p> <p>The gravamen of the alleged perjury was that the appellant, at said examining trial, willfully, deliberately and falsely testified that, on September 5, 1885, he “saw C. A. Lee have carnal knowledge of his daughter, Ida Lee.”</p> <p>When the case was called for trial, the defendant applied for a continuance on account of the absence of two of his witnesses, one of whom was Jeff Cole, whose expected testimony is that considered by this court in its rulings upon the refusal of a new trial by the court below.</p> <p>The testimony expected from said Cole, as set forth in the application for continuance, was obviously desired for the purpose of corroborating the truth of the matter assigned as perjury, and of contradicting the State’s witnesses, C. A. Lee and daughter, who positively testified to its falsity. At the trial, the State adduced evidence that the appellant, in his testimony at the examining trial, stated that the incestuous intercourse of Lee and daughter took place in the shed room of a certain house, and that he, the appellant, saw it thrdugh a crack in the wall, and that said Lee and daughter were in a standing position at the time. The application for a continuance alleges that the said Jeff Cole would testify that the appellant, on the day of the examining trial of Lee for incest, pointed out to him, Cole, the exact spot at which Lee and daughter stood during their carnal act, and that he, Cole, there plainly saw two large tracks, apparently those of a man, close together and pointing in the same direction, and also saw two smaller tracks, apparently those of a woman, wider apart than the other two, and one of them on either side of the other two, indicating that the persons who made the tracks were standing. The opinion of this court, it will be observed, in considering the probative force of this expected testimony, alludes to the strong inducement which might actuate the State’s witnesses, Lee and daughter, to convict the appellant, and to the fact that Lee’s character for truth and veracity was strongly impeached by several witnesses.</p> <p>In view of the rulings in this case, there seems to be no occasion for a detailed statement of the somewhat elaborate evidence.</p>

<p>Appeal from the County Court of Bosque. Tried below before the Hon. A. R. Barry, County Judge.</p> <p>Martha C. Funderberg, the appellant, was indicted for adultery with one James Jackson. The venue of the offense was laid in the county of Bosque, and the time as July 1, 1885. The trial was had at the March term, 1887, of the county court, and resulted in appellant’s conviction, with a fine of one hundred dollars assessed as her punishment.</p> <p>Mrs. S. J. Jackson, the first and most material of the witnesses for the State, was the wife of James Jackson, the alleged paramour of the appellant. She testified that she and said Jackson were married eighteen years previous, and moved to Clifton, in Bosque county, in the autumn of 1884. About July 1, 1885, her husband left her there. During part of the time they lived there they did not live together as husband and wife should, and they occupied different beds. They did not get along together well after the arrival at their house of the defendant, who was the sister of the witness and the cause of the trouble between witness and her husband. When defendant arrived, the witness did not speak to her, and was not on speaking terms with her during her stay. The house had two rooms, one of which was occupied by defendant and the other by witness and her family. Defendant ate with the family for about a month after she came, and after that she cooked, ate and slept in her own room. Witness, after her husband and the family had gone to bed in her room, had seen him get up and go into defendant’s room. She had seen him do that at least three or four times, and, on one of those occasions, about ten or eleven o’clock at night, she followed him into the defendant’s room and found him and the defendant in flagrante delicto in the latter’s bed. “I said a good deal; I was mad; my feelings were hurt. He said to me, ‘Well, G—d d—n you, prove it.’ I left him in there; that was some three or four weeks before she left.” Defendant and Jackson always went out together to work. Witness could not help’herself. The first time she saw anything wrong between her husband and defendant was about four years ago, while they lived at Belton. Having been out on that occasion, witness came in and found the defendant, who was then about seventeen years old, sitting in Jackson’s lap. Witness raised a storm about that, and the defendant, about three weeks afterwards, went to her mother’s, at Brazos Point, Bosque county, and never came to live with witness’s family until about December, 1884, at Clifton, and then came against the consent of witness. Defendant left Clifton three or four weeks before Jackson left witness. Defendant has been mostly raised “by us.”</p> <p>Cross examined, the witness thought it was about the middle of May, 1885, when she saw her husband and defendant copulating in the latter’s bed. The moon was -shining' brightly through a window, and she saw them plainly. George Jackson, the eldest of witness’s six children, was not at home that night, and the other children were asleep and were not awakened. The beds occupied by witness and the defendant were separated by a plank partition wall. A door opened from witness’s room into defendant’s, and Jackson, when he went into defendant’s room the night in question, left the door open as he found it. From Clifton, the defendant left, in March, 1885, to go to Mr. Brock’s, at Kopperl, in Bosque county.</p> <p>Ville Jackson, a daughter of the preceding witness, testified, for the State, that she and her mother habitually slept in the same bed, and that her father occupied a pallet in the same room “when he was not in the other room with the defendant. I have seen father kiss the defendant a great many times. They were together the most of the time. I have seen father go into the defendant’s room several times at night after we had all gone to bed. When I saw the kissing, I was in the room with them.”</p> <p>Meek Mooney, for the State, testified that in the spring of 1885 James Jackson and the defendant hoed cotton for him. Witness always saw them together, and observed that they were very affectionate. Occasionally some of Jackson’s children were with them.</p> <p>Boss Blythe, a State’s witness, knew Jackson and the defendant, and in the fall of 1885 saw them on the railroad extension west of Lampasas. They were living in the same tent, and defendant was cooking and keeping tent for Jackson.</p> <p>The defense introduced James Jackson and his son George. The latter testified that he was living with his father,, and had been ever since the summer of 1885. While the defendant lived with the Jackson family, she was treated as a member of it. Part of the time they all slept in the same room and ate at the same table. Witness was away from home a portion of the time. He never saw anything wrong between his father and the defendant. His father always treated defendant as one of the family. In the fall of 1885 the witness and his father worked on the railroad in Brown county, and the defendant cooked for them. They lived in a tent containing two beds, of which one was occupied by the defendant and the other by witness and his father.</p> <p>James Jackson, for the defense, testified that the defendant had lived with him, as one of his family, most of the time since she was four years old. Witness had always treated her as one of his children. He had often kissed her while she was small, but never since she was grown. She lived a few months with him and his family at Clifton, and from there went to live with Mr. Brock at Kopperl. After describing his house at Clifton as his wife had done, he stated that in the room occupied by defendant there was a chimney, and sometimes he fished and seined in the night, and would come home with his clothes wet, and would go into defendant’s room and hang his wet clothes to the fire. Witness positively denied that he ever had any unlawful conduct or relationship with the defendant. He left Clifton July 1, 1885, and went to Belton and worked in a rock quarry. The defendant came there and boarded with the family witness was boarding with. From there they went to Brown county, he to work on the railroad, and she to keep camp for him and his son George. Defendant was with witness at Dallas when he, the witness, was arrested on the charge of adultery with her. Witness’s son George was also with witness at Dallas when he was arrested on said charge, Defendant had been with witness ever since about August, 1885, when she came to him at Brownwood.</p>

Tried below before the Hon. S. M. Bradley, County Judge. This appeal is from the second conviction of the appellant for keeping and exhibiting a gaming table for the purpose of gaming. On appeal from his first conviction he obtained a new trial for reasons shown in the report of the case in 21 Texas Court of Appeals Reports, page 210. ihe penalty assessed against him on his second conviction was a fine of twenty-five dollars.

<p>Appeal from the County Court of Burnet. Tried below before the Hon. J. A. Crews, County Judge.</p> <p>The conviction in this case was for the sale of whisky on Sunday, and the penalty imposed was a fine of thirty dollars.</p> <p>The disposition made of the appeal calls for no statement of the facts proved on the trial.</p>

Tried below before the Hon. J. V. Cockrell. The opinion in this case sets out the instrument upon which the appellant was convicted of forgery and awarded a term of two years in the penitentiary as punishment. The disposition of the case does not call for a statement of the proof.

Tried below before the Hon. J. M. Rosborough, County Judge. The appellant and W. J. Mathews, I. W. Mathews, Henry Habberman and F. R. Gates were tried and convicted for the offense of hunting and fishing on the enclosed lands of J. Q. Shelley, J. T. Reed and E. T. Reed, and the punishment assessed against each was a fine of five dollars. The disposition made of the appeal does not call for a statement of the facts proved.

Tried below before the Hon. E. C. Bonham, County Judge. The opinion states the case. The penalty imposed was a fine of twenty-five dollars.

Tried below before Hon. W. M. Key, County Judge. The conviction was for carrying a pistol, and the penalty imposed was a fine of twenty-five dollars.

Tried below before the Hon. B. D. Simpson, County Judge. The conviction was for the false imprisonment of one Tom Broxton, and the penalty assessed was a fine of twenty-five dollars. The evidence for the State established substantially these facts: Broxton and Blake were two of a party which visited the town i f Alvarado, Johnson county, on the day alleged in the indictment.

<p>1. Aggravated Assault — Indictment. — “Striking and beating with a pistol in a manner calculated to inflict serious bodily pain and injury” does not per se constitute an aggravated assault. If, as used, the pistol was a deadly weapon, or if the assault was made with premeditated design, the assault would be an aggravated one; but, in the absence of both these allegations, the indictment charges a simple assault only.</p> <p>2. Venue—Evidence.—Proof of the alleged venue of the offense is indispensable, notwithstanding the judge and jury may personally know the locus in quo to be within the jurisdiction of the trial court.</p> <p>8. Same—Charge of the Court.—Though the venue of the offense was laid in Scurry county, the trial court- instructed the jury that the venue was sufficiently proved if the locus in quo was shown to be in either Kent county or Garza county, which were unorganized counties attached to Scurry county for judicial purposes. Held, error. Such proof would not sustain the allegation of venue made in the indictment; and if the offense was committed in one of said attached counties, the indictment should have so alleged.</p>

<p>ON MOTION BOR REHEARING.</p> <p>1. Murder—Evidence.—It was competent for the State to prove in this trial for murder that the homicide occurred in a house of prostitution, and that the accused was the proprietress of the house,—as those facts tended in this case to elucidate the res gesta.</p> <p>2. Same—Practice—Evidence.—The State has the right, on the trial of a criminal ease, to anticipate defensive testimony upon a material issue, and may support its theory thereupon by its evidence in chief as well as by its evidence in rebuttal. See the opinion for a case to which this rule applies.</p> <p>3. Same.—That the trial court is required to compel the State, under all circumstances, to introduce every eye witness to the transaction is a doctrine which has never been announced by this court, and which is not supported by its adjudications in the Hunnicutt case (20 Texas Ct. App., 620) and the Phillips case (22 Texas Ct. App., 139).</p> <p>i. Same—Evidence.—The State having proved the acts and declarations of the defendant just before and just after the shooting, the defense proposed to prove statements made to a witness by the defendant, twelve days subsequent to the shooting, with respect to her declarations at the time of the shooting, which proposed evidence was excluded by the trial court. It is insisted by the defense that the excluded testimony was admissible under the last clause of Article 761 of the Code of Criminal Procedure, which reads as follows: “And when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.’’ Held, that the proposed evidence was properly excluded. The rule announced in the said Article can not be invoked in this case, inasmuch as the declarations of the accused at the time of the shooting were proved as res gesta on the trial, and not as detailed declarations. See the opinion on this question.</p> <p>5. Manslaughter — Charge oe' the Court. — In the absence of proof showing that the defendant’s husband and co-principal, who fired the fatal shot, heard or was informed of the insulting epithet applied to the defendant by the deceased, the trial court did not err in refusing a special charge upon manslaughter.</p>

Tried below before the Hon. I. B. McFarland. The conviction in this case was for the fraudulent disposition of a horse, upon which the accused had executed a mortgage to R. T. Flewellen. A term of two years in the penitentiary was the penalty imposed. The evidence established conclusively the execution of the mortgage by defendant to secure the payment of his note for fifteen dollars, and his exchange of the said horse prior to his payment of the said note.

Tried' below before the Hon. A. T. Terral, County Judge. The conviction in this case was for unlawfully carrying a pistol. The penalty assessed was a fine of twenty-five dollars. The opinion sufficiently discloses the case.

Tried below before the Hon. J. T. Hammons, County Judge. The conviction in this case was for an aggravated assault, and the penalty assessed was a fine of five dollars.

<p>Appeal from the County Court of Falls. Tried below before the Hon. B. C. Stewart, County Judge.</p> <p>The opinion states the case.</p>

Tried below before the Hon. George McCormick. By the indictment in this case, it is charged that Ed. Osborne, the appellant, on December 22, 1886, did willfully, unlawfully, and with express malice aforethought, kill and murder one West Kirby, by shooting him with a pistol and a gun, loaded and charged with gunpowder and bullets. In March, 1887, the accused was tried, and was found guilty of murder in the first degree, with the penalty of death assessed therefor.

Tried below before the Hon. W. W. Evans, County Judge. The conviction was for the willful maiming and wounding of a cow, and the penalty assessed was a fine of ten dollars. By two witnesses, one of them being the owner of the injured «cow, the State proved that defendant notified the said owner that he had shot the cow, and warned her that, if the cow again trespassed upon his field, he would kill her.

Tried below before the Hon. L. H. Brewer, County Judge. The opinion discloses the case. The penalty assessed against the appellant was a fine of forty dollars.

Tried below before the Hon. B. L. Richey, County Judge. This conviction was for misdemeanor swindling, and the penalty imposed was a fine of ten dollars.

Tried below before the Hon. F. A. Williams. The conviction was in the second degree for the double murder of Alsie Taylor and Lettie Smotherman, in Houston4 county, Texas, on the first day of September, 1879. A term of ten years in the penitentiary was the penalty assessed by the jury. Frank Denman was the first witness for the State.

Tried below before the Hon. W. W. Evans, County Judge. The conviction was for the theft of wood, valued at seventy-five cents, and the penalty assessed against the appellant was a fine of five dollars and confinement in the county jail for one day.

Tried below before the Hon. W. E. Collard. The conviction in this case was for the rape of Tena Rogers, in Milam county, Texas, on the twenty-second day of July, 1886. The penalty assessed against the appellant was a term of five years in the penitentiary. Tena Rogers was the first witness for the State. She testified, in substance, that she lived on the place of Mr. Joe Askew, in Milam county, and was there employed as cook and housekeeper.

Tried below before the Hon. A. W. Moursund. The appellant and W. F. Barron were jointly indicted and jointly tried for the murder of W. W. Walker, in Gillespie county, Texas, on the twenty-eighth day of December, 1885. The trial resulted in the acquittal of W. F. Barron and the conviction of the appellant of manslaughter, with a term of two years in the penitentiary assessed as punishment.

Tried below before the Hon. A. S. Walker. The appellant in this case was convicted in the second degree for the murder of Sam Persons, a colored man, in the city of Austin, Travis county, Texas, on the twenty-fifth day of November, 1885. A term of twenty-five years in the penitentiary was the penalty assessed. Charles Alexander was the first witness for the State.

<p>1. The Keeping of a Disorderly House is, under the law of this State, a continuous offense, and a conviction bars all further prosecution up to the time of conviction, unless, as in this case, the indictment specifies or “ carves out ” the times of the commission of the offense, and the evidence is confined to the times carved out; when a conviction will not be a bar to prosecutions forjike offenses at other times not carved out by the indictment.</p> <p>2. Same.—It was agreed in this case that the appellant should be tried upon her bond, and judgment was rendered against both the appellant and her sureties. Held, error as to the sureties, but as to appellant the judgment is affirmed.</p>

<p>Carrying- a Pistol.—Fact Case.—See the opinion for evidence held insufficient to support a conviction for carrying a pistol.</p>

<p>1. Theft from the Person—Indictment—Evidence—Value. —The value of the property privately stolen from the person of another is not a constituent of that offense as defined in Articles 744 and 745 of the Penal Code, nor does it in any wise affect the punishment prescribed for it. Wherefore, in prosecutions for that offense, the value of the stolen property need neither be alleged in the indictment nor established by the proof. See the opinion for an elucidation of this ruling, and for an exposition of the distinctions in these respects between ordinary theft and theft from the person.</p> <p>2. Same—Fraudulent Intent.—In a trial for privately stealing a gold ring1 from the finger of a lady, the defense claimed that the taking was an innocent mistake of the defendant, who mistook the said lady for another one upon whom be designed to perpetrate a joke. See the statement of the case and the opinion of the court for evidence held to refute this defense and to sustain the conviction.</p>

<p>Appeal from the County Court of Falls. Tried below before the Hon. John H. Wharton, County Judge.</p> <p>The opinion discloses the case. The penalty assessed was a fine of four hundred and fifty dollars.</p>

Tried below before the Hon. D. H. Scott. The appellant in this case was convicted of the offense of incest with his daughter, Hilly Jones. His punishment was assessed at a term of ten years in the penitentiary. William Johnson and his wife, Harriet, witnesses for the State, testified, in substance, that defendant and his daughter, Hilly, came to their house, en route to the city of Paris, on the evening of October 1, and asked permission to stay over night.

Tried below before the Hon. T. M. Paschal. The death penalty was assessed against the appellant in this case, upon his conviction in the first degree for the murder of Pancho Garcia. The murder was alleged to have been committed in Uvalde county, Texas, on the eighteenth day of October, 1885. Alearía Contreras, the wife of Pancho Garcia at the time of his death, was the first witness for the State.

Tried below before the Hon. I. B. McFarland. This conviction was for the theft, on the fourth day of February, 1887, of a horse, the property of William Cummings. The penalty assessed was a term of fifteen years in the penitentiary. The venue was laid in Washington county, where the stolen animal was found on the day alleged in the indictment.

Tried below before the Hon. Eugene Williams. The indictment in this case was presented in Limestone county. It charged in the- first count, against the appellant, the theft of a yearling, the property of George Lewis, and in the second count that he received the same from Noon Tucker, knowing that the same was stolen by the said Noon Tucker.

Tried below before the Hon. W. W. Evans, County Judge. The opinion states the case. The penalty assessed was a fine of twenty-five dollars.

Tried below before the Hon. R. Gr. Childress, County Judge. The opinion states the nature of the case. The penalty assessed was a fine of twenty-five dollars and ten days in the county jail.

G. H. Noonan. The indictment in this case was presented on June 22, 1886, and contained three distinct counts, each charging the appellant with the murder of Frank Harris, in Bexar county, on the fifteenth day of September, 1884.

Tried below before the Hon. D. H. Scott. The conviction in each of these cases was for the forgery of orders for the payment of free school vouchers, each in the sum of five dollars. The penalties awarded were terms of two years in the penitentiary in each case. The sufficiency of the evidence to support these convictions does not enter into the disposition of these appeals, and therefore the evidence is not set out,

Tried below before the Hon. Eugene Williams. The conviction in this case was for perjury alleged in the indictment to have been committed by the appellant as a witness upon the trial of one Joe Wyers, for cattle theft, on the thirteenth day of February, 1886. The substance of the alleged false testimony will appear in the statement of the case. A term of five years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hon. J. C. Russell. A term of two years in the penitentiary was awarded the appellant upon his conviction for the forgery of an instrument which is set out in the indictment as follows: “No. 119 Leavenworth, Nov. 23d, 1886. The First National Bank.

Tried below before the Hon. R. G. Childress, County Judge. The opinion discloses the ease. The penalty awarded was a fine of ten dollars.

Habeas corpus on appeal from the District Court of La Salle. Tried below before the Hon. D„ P. Marr. The appeal in this case was prosecuted from the order of the district judge of La Salle county refusing bail to the applicant, who was held under an indictment charging him with the murder of George Hill, on the second day of January, 1887. ' The evidence is stated below in the order in which it appears in the record.

Tried below before the Hon. W. A. Blackburn. The conviction was for driving a certain horse, belonging to J. D. D. Berry, from his accustomed range in Lampasas county, and the penalty assessed by the jury was a term of three years in the penitentiary. It is not essential to this report that a synopsis of the statement of facts be set out.

Tried below before the Hon. Eugene Williams. The conviction in this case was for receiving from George Gool two horses, knowing that the same had been stolen, and the penalty assessed was a term of nine years in the penitentiary. J. T. Scott was the first witness for the State. He testified, in substance, that he lived in Angelina county. Witness never saw defendant until he saw him in custody in Falls county.

Tried below before the Hon. D. H. Scott. The conviction in this case was for the felonious theft of an overcoat, the property of J. B. McLeod, and the penalty assessed was a term of four years in the penitentiary.

Tried below before the Hon. J. C. Randolph. The appellant in this case was convicted under an indictment charging him, as a justice of the peace, with a violation of Article 103 of the Penal Code, defining the offense of misapplication of the public funds. The penalty assessed by the jury was a term of two years in the penitentiary.

Tried below before Z. I. Harlan, Esq., special County Judge. The opinion states the case. The penalty imposed was a fine of fifty cents per acre for four acres of land.

Tried below before the Hon. D. H. Scott. The opinion states the case. The penalty assessed by the verdict was a term of ten years in the penitentiary.

Tried below before the Hon. S. R. Frost. The appellant in this case was convicted in the first degree, and as punishment, awarded a life term in the penitentiary, for the murder of Jerry Green, in Limestone county, Texas, on the twenty-second day of June, 1883. Lucy Green, the widow of the deceased, was the first witness for the State.

Tried below before the Hon. C. H. Willingham, County Judge. The opinion states the nature of the case. The penalty assessed was a fine of twenty-five dollars.

Tried below before the Hon. A. W. Moursund. The conviction was of burglary, and the penalty assessed was a term of two years in the penitentiary. The opinion discloses the case.

Tried below before the Hon. J. F. Robinson, County Judge. The conviction was for an aggravated assault on Mrs. N. Morgan, and the penalty assessed was a fine of twenty-five dollars. By Mrs. Morgan, the prosecutrix, the State proved in substance that, on the day alleged in the indictment, and while sh© was in her dressing room arranging her toilet, the defendant tapped at her front door.

Tried below before the Hon. Anson Rainey. This was a conviction for the theft of a cow, the property of one H. A. Vanderford, and the penalty assessed was a term of two years in the penitentiary. H. A. Vanderford was the'first witness for the State. He testified that some time in the spring of 1885 he lost a cow in the “seven up and seven down” brand (thus: 7¿), and the NM brand. She was a black and white animal, her neck being almost entirely black.

Tried below before the Hon. A. W. Moursund. The conviction in this case was for the theft of a mare, the property of J. B. Fondren, and the penalty assessed against appellant was a term of seven years in the penitentiary. J. B. Fondren was the first witness for the State. He testified, in substance, that he lived in San Saba county, about eight miles west of the town of the same name.

Tried below before the Hon. A. W. Moursund. ' This was a conviction for the theft of a horse, the property of W. Caviness, and the penalty assessed was a term of five years in the penitentiary.

Tried below before the Hon. Eugene Williams. The conviction in this case was in the second degree for murder of S. A. Walthall, in Grayson county, Texas, on the twenty-sixth day of March, 1886. The penalty assessed against the appellant was a term of seven years and six months in the penitentiary. J. J. Paine was the first witness for the State.

Tried below before the Hon. T. M. Paschal. This appeal was prosecuted from the final judgment forfeiting the bond of A. J. DeGaultee, bailed under a charge of swindling. The amount of the bond and judgment was twelve hundred dollars.

Tried below before the Hon. A. W. Moursund. The conviction in this case was for the theft of two horses, the property of unknown owners, and the penalty assessed was a term of five years in the penitentiary. T. W. Garvin was the first witness for the State. He testified, in substance, that he knew a certain bay mare that for a time ranged on Latham creek in San Saba county, Texas. He first saw her when she was a colt in 1880 or 1881.

Original application for habeas corpus presented to the Court of Appeals, the judge of the district being absent therefrom. The grounds of the application and all material facts are disclosed in the opinion of this court.

Tried below before the Hon. A. W. Moursund. This is a companion case to the case of Mayfield v. The State (ante, p. 645); the conviction is for the same offense, the theft of a mare, the property of J. B. Fondren, and is based upon substantially the same testimony, delivered by the same witnesses. The penalty assessed was a term of five years in the penitentiary.

Habeas Corpus on appeal from the District Court of Kinney» Tried below before the Hon. W. Kelso. The relator in this case was held under an indictment charging him with the murder of one Bill, a negro. The order of the district judge, refusing bail, is set aside, and bail in the sum of five thousand dollars is awarded. J. H. Coleman was the first witness for the relator.

Tried below before the Hon. Anson Eainey. The first count in the indictment charged the appellant with the theft of a heifer, the property of T. L. Sullivan, and the second count charged that he received the same from one Mosberger, knowing it to be stolen property. The conviction was had under the first count, and the penalty imposed was a term of three years in the penitentiary. T. L. Sullivan was the first witness for the State.

Tried below before J. W. Patterson, .Esq., Special Judge. Under an indictment charging him with the murder of Homer Crook, the appellant was convicted of manslaughter, and his penalty was assessed at a term of two years in the penitentiary. A statement of the proof on this trial, sufficient to illustrate the rulings of this court, is contained in the opinion.

Anson Rainey. This conviction was in the second degree for the murder of Wes. Davis, and the penalty assessed was a term of eight years in the penitentiary. Doctor Thompson testified, for the State, that one night in May, 1886, he was called to see the deceased in his capacity of a surgeon. He found the deceased suffering from a contused wound above the eye, which fractured the skull.

Tried below before the Hon. T. M. Paschal. The conviction in this case was for the theft of five hundred and seventy-seven head of sheep, the property of B. C. Flowers. The penalty assessed against the appellant was a term of two years in the penitentiary. J. W. Sansom was the first witness for the State. He testified that he lived at Uvalde Station in 1886. For ten months prior to the sixteenth day of September of that year, the defendant boarded at the house of the witness.

Tried below before the Hon. A. S. Walker. This was a conviction for an assault with intent to murder one Charles Landes. A term of two years in the penitentiary was the penalty assessed. Francisco Lopez was the first witness for the State. He testified that a Mexican came to the restaurant of Landes on the night alleged in the indictment and asked for Landes. Witness pointed Landes out, when the Mexican drew a gun and presented it at Landes.