Volume 24 — Texas Court of Appeals Reports

Tried below before the Hon. W. L. Faulk, County Judge. The conviction in this case was for indecent publication, and the penalty assessed by the jury was a fine of twenty-five dollars against each of the appellants. Morrison Bass was the first witness for the State. He testified, in substance, that, on Sunday, August —, 1886, he attended divine service at Cox’s Chapel, in Henderson, county, Texas, and occupied a seat on a bench with the defendants on trial.

Tried below before the Hon. J. H. Link, County Judge. The opinion of the court sufficiently discloses the case. The penalty assessed by the jury was a fine of twenty dollars.

Tried below before the Hon. F. J. McCord. The opinion discloses the nature of the case. The original trial upon the merits of the case will be found reported in the fifteenth volume of the reports, beginning on page 70.

<p>Appeal from the District Court of Nacogdoches. Tried below before the Hon. J. I. Perkins.</p> <p>The opinion sufficiently discloses the case. The penalty assessed against the appellant was a fine of ten dollars.</p>

Tried below before the Hon. Eugene Williams. The conviction in this case was for the theft of a mare, the property of William Little. The penalty assessed against the appellant was a term of five years in the penitentiary. The opinion states the substance of the evidence.

Tried below before the Hon. F. J. McCord. The conviction in this case was for the burglary of the house of Adam and Mattie Watson, with intent to commit rape upon the person of the said Mattie Watson. The penalty assessed against the appellant was a term of eight years in the penitentiary. Mattie Watson was the first witness for the State. She testified, in substance, that she was the wife of Adam Watson, and lived with him in his house, in Smith county, Texas, in July, 1887.

A ppeal from the District Court of Comanche. Tried below before the Hon. T. H. Conner. The indictment in this case, based upon article 212 of the Penal Code, charged the appellant with breaking into the jail of Comanche county, Texas, on the twenty-eighth day of March, 1886, for the purpose of rescuing one Henry Williams, a prisoner confined in the said jail.

Tried below before the Hon. T. H. Conner. This is the companion case to the preceding case of I. IT. Williams v. The State. The conviction was had under an indictment charging the appellant with breaking into the Comanche county jail on the night of April 28, 1886, and liberating certain prisoners. The report of the I. IT. Williams case, Commencing on page 17 of this volume, contains a full statement of the evidence adduced upon that trial.

1 Tried below before the Hon. G. H. Hoonan. . The conviction in this case was for the theft of two mules, the property of Frank Sherwood, in Bexar county, Texas, on the first day of April, 1886. The penalty assessed against the appellant was a term of five years in the penitentiary. Frank Sherwood was the first witness for the State.

Tried below before the Hon. J. 0. Russell. This conviction was in the second degree for the murder of Augustin Perez, in Duval county, Texas, on the . fifth day of August, 1884. The penalty assessed was a term of thirty years in the penitentiary. The opinion sets out in full the testimony of Eusebio Carrillo, the first witness for the State.

Tried below before the Hon. J. C. Russell. The conviction in this case was for an assault with intent to murder one Espiralon Devolino, and the penalty assessed was a term of two years in the penitentiary. But two witnesses testified upon this trial, both appearing for the State.

Tried below before the Hon. W. P. McLean. This conviction was in the second degree, for the murder of Thomas Braden, in Cass county, Texas, on the twenty-sixth day of April, 1887. The penalty assessed against the appellant was a term of fifteen years in the penitentiary. Valentine Waites was the first witness for the State. He testified, in substance, that he was present and witnessed the shooting of Thomas Braden by the defendant.

Tried below before the Hon. W. P. McLean. The appellant in this case was indicted as the accomplice of J. T. Melton in the murder of one Thomas Braden, in Cass county, Texas, on the twenty-sixth day of April, 1887. His trial upon said indictment resulted in his conviction, and he was awarded a term of five years in the penitentiary. A full report of the evidence adduced upon the trial of Melton will be found in the present volume, commencing on page 47.

Tried below before the Hon. D. H. Scott. A term of two years in the penitentiary was assessed against the appellant upon his conviction for burglary, under an indictment the charging part of which reads as follows: * * * “That Tom Williams, on or about the first day of July, in the year of our Lord, 1887, in the county of Fannin and State of Texas, did then and there unlawfully, in the day time, by force and fraud, break and enter a house there situate, and occupied and used…

Tried below before the Hon. J. M. Hall. The conviction in this case was for the theft of one head of cattle, the property of Thomas Sparks, in Johnson county, Texas, on the sixteenth day of March, 1885. The penalty assessed against the appellant was a term of two years in the penitentiary. Thomas Sparks was the first witness for the State. He testified, in substance, that he lived about twelve miles south of Cleburne, in Johnson county, Texas, and lived there in March, 1885.

<p>1. Practice—Confession.—To vender a confession inadmissible upon the ground that it was induced by the promise of some benefit to the accused, such promise must be positive, and must be made or sanctioned by some one in authority, and be of such character as would be likely to influence the accused to speak untruthfully. The confession of an accused is not rendered inadmissible because it was made under the influence alone of fear of legal punisment.</p> <p>2. Same—Charge of the Court.—The trial court in this case submitted to the jury the competency of the confession as evidence, and in the same connection charged them that it could be considered as evidence if the accused made statements therein relating to the commission of the . offense which were otherwise found to be true. Held, that the charge was erroneous, because unauthorized by any evidence in the case; and that the error, though immaterial, necessitates the'reversal of the judgment,'inasmuch as exception was reserved at the time of the trial. (Code Crim. Proc., art. 685.)</p>

J. G. Hazlewood. The indictment in this case charged the appellant, jointly with John Eiden, Pedly Eiden, James Eiden, Henry Chumley, Henry Beckett, Will Booth and Wash Flournoy, with the rape of Minerva Horton in Shelby county, Texas, on the twentieth day of July, 1886.

Tried below before the Hon. J. G-. Hazlewood. The appellants in this case were convicted of murder in the first degree, and awarded a life term in the penitentiary, under an indictment which charged them jointly with the murder of A. H. Kinney, in Harrison county, Texas, on the twenty-sixth day of August, 1886. Joseph Scott was the first witness for the State.

Tried below before the Hon. George McCormick. This conviction was for the theft of a horse., the indictment alleging the ownership and possession to be in M. C. Doyal. The penalty awarded was a term of six years in the penitentiary. M. C. Doyal was the first witness for the State. He testified, in substance, that he lived near the town of Harwood, in Gonzales county, Texas, and was the owner of the horse alleged in the indictment to have been stolen on or about July 17, 1886.

Tried below before the Hon. W. P. McLean. The indictment in this case charged the appellant with an aggravated assault and battery upon the persons of Annie Watts, Hora Gibson and Ollie Holt, females. The conviction was for simple assault, and the penalty assessed was a fine of five dollars. Mrs. Watts was the first witness for the State.

Tried below before the Hon.' W. H. Burkhart. The conviction in this case was for the theft of a yearling, alleged in the indictment to be the property of, and to have been taken from the possession of, one E. IT. Wilson. A term of three years in the penitentiary was the penalty assessed by the verdict. The conviction in this case was reversed solely because of the variance between the allegation and the proof of the possession of the animal at the time it was taken.

Tried below before the Hon. R. E. Beckham. The conviction in this case was for an assault with intent to murder one Lewis Taylor, and the penalty imposed was a term of two years in the penitentiary. In substance, the State proved that the defendant and Lewis Taylor were fellow workmen in the employ of one Binyon, the proprietor of a line of freight floats in the city of Fort Worth. They kept their teams at the stable of the said Binyon.

Tied below before the Hon. D. P. Harr. The conviction in this case was for the theft of a mare, the alleged property of John Birmingham. The penalty assessed against the appellant was a term of five years in the penitentiary. The evidence adduced upon the trial is summarized in the opinion of the court.

<p>Appeal from the District Court of Fannin. Tried below before the Hon. D. H. Scott.</p> <p>The appellant in this case was convicted of swindling, and his punishment was assessed at a term of three years in the penitentiary. Omitting the formal portions, the indictment reads as follows: * * * * “that one William Dwyer and one Edward Eglinton and one J. L. Larkin, conspiring and acting together, on or about the 29th of October, 1886, in Fannin county, Texas, by means of false pretences and devices, and fraudulent representations, then and there knowingly and fraudulently made by them to John C. Brown and Lionel A. Sheldon, who were then and there receivers of the Texas & Pacific Railway Company, did induce the said John C. Brown and Lionel A. Sheldon, receivers as aforesaid, to deliver to them, the said Dwyer, Eglinton and Larkin, and the said Dwyer, Eglinton and Larkin did, then and there, by the means aforesaid, acquire from the said receivers of said The Texas & Pacific Railway Company, the sum of twenty-six dollars and forty-five cents ($26.45) in money, of the value of twenty-six dollars and forty-five cents, the same being the personal and moveable property of said receivers of the said railway company, with the intent to appropriate the same to the use of them, the said Dwyer, Eglinton and Larkin, in this, to wit: The said Dwyer was then in the employ of the said receivers of the said railway company, and was then and there section foreman of section 80 of said The Texas & Pacific Railway Company, in said county, and had authority to employ and discharge laborers on said section Ho. 80 of said railway, and as such section foreman it was, under the rules and regulations of said receivers, the duty of said Dwyer, when'any of the laborers working under him on said section Ho. 80 of said railroad, should be discharged by him, to report the fact of such discharge to the district road master, whose office was in the city of Bonham, in said county, and to make a statement to said district road master of the number of days such laborers so discharged had worked on his section on said railway, together with the amount due the laborer so discharged. That said J. L. Larkin was, on or about the 24th day of October, 1886, and long prior and subsequent thereto, the district road master of the district of said railroad which includes said section Ho. 80. That on or about said October 25, 1886, the said Dwyer reported to said Larkin that one Bobert Kingston had labored twenty-three days at general track repairs in the month of October, 1886, on said section Ho. 80, at one dollar and fifteen cents per day, and that the amount due said Kingston for said labor was twenty-six dollars and forty-five cents, and that said Kingston was due hospital twenty-five cents, leaving still due said Kingston, twenty-six dollars and twenty cents. That it was then and there one of the regulations and the practice of the said receivers of said railway company, that, when any section foreman on said railroad makes a ■ report such as the one above mentioned, to withhold twenty-five cents as hospital fees. That said Dwyer, Eglinton and Larkin well knew of said regulation and practice of said railroad receivers; that it was then and there the rule and practice of said receivers of said railway company for a district road master in their employ, on receiving at his office from a section foreman a report such as hereinbefore mentioned, to examine the same and report the amount therein found to be due to said discharged laborer and the amount of hospital fees due from said discharged laborer, to the division road master of the division of said railway which includes such district road master’s district. That, on or about said October 25, 1886, and long prior and subsequent thereto, the said J. L. Larkin was district road master as aforesaid of said district number eighty, and the said J. L. Larkin then and there had in his employ the said Eglinton as his clerk in his said office. That conspiring and acting together with the said Dwyer, and intending to cheat, swindle and defraud the aforesaid receivers of said railway company, the said Larkin and Eglinton, on the twenty-fifth day of October, 1886, did report to D. E. Grove, who was then and there the division road master on said railway, and whose division of said railway included said Larkin’s district of said railway, that said Robert Kingston had labored twenty-three days at general track repairs in the month of October, 1886, on said section number eighty, at one dollar and fifteen cents per day, amounting to twenty-six dollars and forty-five cents, and that said Kingston was due the hospital twenty-five cents, leaving still due said Kingston twenty-six dollars and twenty cents. That the receiver of the said railway company furnished the said Larkin with a blank report upon which to make the report above mentioned, and that on October 25, 1886, he signed said blank report, and on the same day the said Eglinton, as said Larkin’s clerk as aforesaid, with said Larkin’s full knowledge and consent, filled out said report, as hereinbefore set forth, and the same was sent to the said D. E. Grove, whose office w&s then at Marshall, Texas; that, upon the receipt of the said last report at the office of the said D. E. Grove, one John W. Parks, who was then and there clerk in the office of the said Grove, did on the twenty-seventh day of October, 1886, in pursuance of the rules, regulations and practice of the receivers of said railway company, issue to said Robert Kingston, o what is known as a discharge certificate, stating therein that the bearer, Robert Kingston, was entitled to pay for twenty-three days as a laborer on said section number eighty, in the month of October, 1886, at the rate of one dollar and fifteen cents per day, amounting to twenty-six dollars and forty-five cents, less twenty-five cents due hospital, leaving balance due said Kingston twenty-six dollars and twenty cents. That said Grove, believing said last report to be true and correct, did approve the said certificate, and sent the same to H. 0. Phillips, who was then and there depot agent for said receivers at Bonham in said Eannin county, Texas. That said Phillips, as such depot agent as aforesaid, was authorized and empowered to pay off such certificates, by said receivers out of any funds and money in his hands belonging to said receivers. That, on or about the 29th day of October, 1886, the said Eglinton falsely represented to said Phillips, depot agent as aforesaid, that he was duly authorized and empowered by said Kingston to collect the amount called for in said discharge certificate as due said Kingston, and the said Phillips, believing said representation to be true, then and there paid the said Eglinton the same, to wit: $26.20 in money, at Bonham, in said Fannin county, Texas, out of money in his hands belonging to said receivers, and the said Eglinton did then and there sign the name of one James Kingston to receipt for said amount, $26.20. That the whole of said transaction on the part of said Dwyer, Eglinton and Larkin was a false and fraudulent combination, scheme and device to cheat, swindle and defraud the aforesaid receivers of said railway company; whereas in fact and in truth the said Kingston did not work as a laborer on said section Ko. 80 of said railway company under said Dwyer, during the month of October, 1886, nor at any other time; and whereas, in truth and fact, the said report made by said Dwyer to said Larkin, as aforesaid, was false and fraudulent, and said report made by said Larkin and Eglinton to said Grove was false and fraudulent, and the representations and statements made by said Eglinton to said Phillips, that he said Eglinton was authorized and empowered and entitled to collect said amount of $26.20 called for in said certificate, as aforesaid, was false and fraudulent; whereas in fact and in truth the said Kingston did not labor twenty-three days on said section Ko. 80 during the said month of October, 1886, as shown by said Dywer’s said report, and whereas in truth and in fact, the said Kingston was not entitled to said $26.20 as shown by said Dwyer’s report, and whereas in fact and in truth said Kingston did not at any time labor on said section Ko. 80, and said receivers of said railway company were not indebted to said Kingston in any sum of money; and whereas, in truth and in fact, all the statements, representations and reports of said Dwyer, Eglinton and Larkin, as hereinbefore set forth, were false and fraudulent; and when in truth and in fact, said Kingston was not entitled to said $26.20 as stated in said report, and as represented to said Phillips, and whereas the said Dwyer, Eglinton and Larkin, at the time of making each of said reports and said representations to Phillips, Larkin, Grove, and to said receivers of said railway company, well knew that they were all false and fraudulent, and that all of said pretenses, statements, devices and representations were false and fraudulent; that the said Robert Kingston and James Kingston mentioned in said report, certificate and receipt was one and the same person; that on or about October 29th, 1886, prior and subsequent thereto, the said Dwyer, Larkin, Grove and Phillips were in the employ of the receivers of the said Texas & Pacific Railway Company; contrary,” etc.</p>

Tried below before the Hon. E. E. Beckham. The conviction in this case was in the first degree for the murder of Lewis Schmidt, in the City of Fort Worth, Tarrant county, Texas, on the thirty-first day of March, 1887. The penalty assessed by the verdict was a life term in the penitentiary. Frank Carter was the first witness for the State. He testified ' that he was a hack driver by occupation, and followed that business in the city of Fort Worth, Tarrant county, Texas.

Tried below before the Hon. D. H. Scott. The appellants in this case were jointly indicted, tried and convicted for the theft of a mare and colt, the property of one Bob Carter. A term of five years in the penitentiary was the penalty assessed against each of the appellants. L. C. Lamaster was the first witness fór the State. He testified that he lived in Honey Grove, Fannin county, Texas, and that he knew both of the defendants, whom he pointed out in court.

Tried below before the Hon. Gustav Cook. The conviction in this case was for false swearing, and the penalty assessed against the appellant was a term of two years in the penitentiary. A. E. Eailey was the first witness for the State. He testified that, on the twenty-ninth day of March, 1886, he was a duly elected, qualified and acting justice of the peace, in and for Harris county, Texas.

<p>Appeal from the District Court of Waller. Tried below before the Hon. W. H. Burkhart.</p> <p>The conviction in this case was for the robbery of F. Schultz, and the penalty imposed was a term of ten years in the penitentiary. The offense was alleged to have been committed in Waller county, Texas, on the twenty-sixth day of August, 1887. The facts of the case are not involved in the rulings of the court. The charter of pardon was conditioned that it was “subject to revocation by the Governor of Texas whenever it shall be determined by said Governor that he (said convict) has violated any of the criminal laws of this State.”</p>

Tried below before the Hon. John W. Hackler, County Judge. Appellant and Hannah Staines were jointly indicted for adultery. The appellant being alone upon trial was convicted, and his punishment was assessed at a fine of one hundred dollars. W. H. Hart was the first witness for the State. He testified, in substance, that he had known the defendant about fifteen years. He knew Hannah and Ann Staines.

Tried below before the Hon. George McCormick. The conviction in this case was for perjury, and the penalty assessed was a term of seven years in the penitentiary. The State first introduced B. B. Abernathy, who testified he was clerk of the district court of Gonzales county when Bob Carr was tried for burglary, and as such clerk he administered the oath to the witness who testified on that trial.

Tried below before the Hon. Eugene Williams. The conviction in this case was for perjury, alleged to have been committed by the appellant, upon the trial of one Guy Williams for assault to murder. The penalty imposed by the verdict was a term of five years in the penitentiary. The brief of counsel for the appellant shows the objections urged against the sufficiency of the indictment, which covers nine pages of the transcript.

Tried below before the Hon. W. E. Collard. The death penalty was assessed against the appellant upon his conviction in the first degree, for the murder of John Mitchell, in Eobertson county, Texas, on the twenty-sixth day of April, 1887. The counsel for the appellant has prefaced his able and interesting argument upon the issue of insanity with a statement of the facts as full and concise as can be made from the record.

Tried below before the Hon. Anson Rainey. The conviction in this case was for the burglary of the store house of Herman Schroeder, and the penalty assessed was a term of two years in the penitentiary. J. B. Adkins was the first witness for the State. He testified that he knew the defendant at the time he was shot. The witness then lived about one hundred yards from Peed’s Mill, in Kaufman county, Texas. The store and post office at Peed’s. Mill was kept by Herman Schroeder.

Tried below before the Hon. J. H. Eice, County Judge. This conviction was for obstructing a public road, and the penalty assessed was a fine of fifteen dollars. The opinion summarizes the proof.

Tried below before the Hon. F. J. McCord. The conviction in this case was for an assault with intent to rape, upon the person of Olie Stephens, and the penalty assessed against the appellant was a term of two years in the penitentiary. Olie Stephens was the first witness for the State. She testified that she was twelve years old, and lived with her father at his house in Smith county, Texas. Witness’s mother was dead.

Tried below before the Hon. F. E. Finer. The indictment in this case, which charged the appellant with the murder of the infant of his daughter, Mollie Steagald, in Clay county, Texas, on the twentieth day of January, 1886, was filed in the district court of Clay county on the sixteenth day of March, 1886, and within a few days thereafter the appellant was placed upon his trial in the district court of the said Clay county.

Tried below before the Hon. George A. McCall. The conviction in this case was in the second degree for the murder of Tom Gill, in Wise county, Texas, on the fifth day of April, 1886. The penalty assessed against the appellant was a term of thirty years in the penitentiary. J. W. Hutchinson was the first witness for the State.

<p>Habeas Corpus—Second Application—Case Stated.—The relator being confined in the penitentiary of this State under seven different convictions for felony, applied to the Governor for pardon, and, on the twenty-fifth day of August, 1886, the Governor issued his charter for pardon to cover each of the seven convictions, which charter of' pardon he delivered to the agent of the relator, who in turn delivered it to the superintendent of the penitentiary, and demanded upon it the release of the relator. The superintendent, acting upon telegraphic orders from the Governor, refused to release the relator, retained the said charter of pardon, and subsequently returned it to the Governor, who indorsed upon it his order of cancelation because it “was issued upon misinformation.” On the thirtieth day of March, 1887, the relator sued out a writ of habeas corpus, and upon the hearing of the same he introduced in evidence the said charter of pardon, indorsed as above stated. He was remanded to custody, and appealed to this court. Upon the hearing of the appeal this court held that a pardon procured by fraud was absolutely void, and that, having relied upon the charter of pardon, indorsed as above, the relator established against himself a prima facie procurement of the pardon by fraud and assumed the burden of proving no fraud, which, failing to do, he was not entitled to release, and the judgment of the lower court was affirmed. On the tenth day of August, 1887, the relator applied for a second writ of habeas corpus, which, being granted and heard, he was again remanded to custody, from which judgment he prosecutes this appeal. The Assistant Attorney General moves to dismiss this appeal because there is a former and unreversed adjudication upon this same state of facts, and because the said former adjudication was pleaded in bar, and no newly discovered evidence is set up as a reason for opening up the former judgment for revision. But held: 1. A second writ of habeas corpus is obtainable under the laws of this State when it is made to appear that important testimony1 has been obtained which, though not newly discovered, or which, though known to the applicant, could not be produced by him at the former hearing. 3. In passing upon second appeals in habeas corpus cases this court is not called upon to determine whether or not the evidence is newly discovered, but will consider the evidence as it was adduced on the hearing and is presented in the record. The motion to dismiss the appeal is overruled. See the opinion in extenso for the substance of evidence adduced on the hearing below, which is held to remove the taint of fraud in the acquisition of the pardon as exhibited on the first hearing, and, therefore, to entitle the applicant to his discharge.</p>

Tried below before the Hon. A. R. Hartman, County Judge. The opinion states the nature of the cases. The penalties assessed were fines of two hundred dollars in each case.

<p>• Appeal from the County Court of Rains. Tried below before the Hon. W. M. Lamb, County Judge.</p> <p>The opinion discloses the case. The penalty assessed against the appellant was a fine of twenty-five dollars and confinement in the county jail for forty-eight hours.</p> <p>One Jeff Martin was joined in the information against this appellant, and, upon his separate trial, he was convicted and a like punishment assessed against him. The judgment in his case was reversed and the prosecution dismissed for the same reasons assigned in this case.</p>

Tried below before the Hon. D. H. Scott. The conviction in this case was for the theft of four head of cattle, the property of John R. Johnson, in Red River county, Texas, on the fifteenth day of April, 1887. A term of two years in the penitentiary was the penalty assessed against the appellant. John R. Johnson was the first witness for the State. He testified that he lived in Red River county, Texas, and was the owner of the four head of cattle described in the indictment.

Tried below before the Hon. J. R. Riddle, County Judge. The opinion states the case. The amount of the bond adjudged was one hundred dollars.

<p>Appeal from the District Court of Coleman. Tried below before the Hon. J. C. Randolph.</p> <p>The conviction in this case was for the theft of a horse, the possession and ownership of which was alleged to be in one J. C. Benton. A term of five years in the penitentiary was the penalty assessed by the verdict.</p> <p>J. L. Nickel was the first witness for the State. He testified, in substance, that in June, 1886, he lived in the Rough creek neighborhood, in Coleman county, Texas. On two or three different occasions, prior to the commission of the act for which the defendant was now upon trial, the defendant came to the witness and requested the witness to join him in the business of stealing horses and running them off to Lampasas county and selling them. Defendant said that sleek horses, worth seventy-five dollars each, could be stolen and sold to a good profit. Witness declined to join the defendant in the proposed enterprise. Some time in May, 1886, witness went to defendant and told him that he had lost two horses, which had either strayed or been stolen, and asked the defendant to go with him in search of the said horses. Defendant replied: “I know of a way we can do to beat that, and in which you can get even for the loss of your horses. We can steal a couple of horses, which will make up your loss, and be easier than hunting the horses you have lost.” Defendant then proposed to steal the horses of the witness’s brother-in-law. The witness then went to Mr. E. A. Birdwell and told him of the proposition made to him by the defendant to go into the horse stealing business. Birdwell advised the witness to agree to the next proposition of the kind made by the defendant, and to apprise him, so that he and others might take the defendant in the very act. On the morning of June 15, 1886, the witness went to the' defendant’s house, and the defendant renewed his-proposition, and the witness, acting upon the suggestion of Birdwell, agreed. Defendant borrowed a saddle and rode a mule to the Rough creek bottom, to look for some horses, to steal, witness accompanying him, not for the purpose of participating in the theft, but in pursuance of the agreement he had made with Birdwell. They found two horses hoppled out, one a sorrel, branded JAO, and one a gray, branded BA. Witness and defendant examined those horses, and defendant said that they would do. Witness and defendant laid around the horses all day, at a point about two hundred yards distant. Defendant went to and closely examined the said horses two or three times during the said day. He asked witness during the day if the witness knew who owned the said horses, and witness replied truthfully that he did not. During the day the witness saw Mr. Bull, and went to him and asked him: “Ain’t you on to the racket?” About dusk the bell on one of the horses got to ringing, and defendant remarked: “There they are.” The witness and defendant rode to a point near the horses, when the defendant dismounted, with a rope in his hand, and went to the first horse, which he caught, but released. He then dropped his rope, caught the other horse around the neck, patted him and rubbed him down gradually towards the hopples on his feet. He was in the act of removing the hopples, when the men in ambush ordered him to hold up his hands. Defendant responded to the order with the exclamation “Oh!” The men then came in view, and were Bull, Birdwell, Townsend and Dave Benton. Defendant told them that the horses belonged to his uncle, and that if he could go to Buffalo Gap he would prove it. The men then asked him who owned the rope lying near. He first said that he did not know, but afterwards said that it was his.</p> <p>R. C. Bull testified, for the State, that on or about June 15, 1886, two horses, belonging to J. 0. Benton, were placed in his hands to be used as decoys in the detection of the defendant for horse theft. According to arrangements previously made, the witness took the said horses to a certain point in the Rough creek bottom and hoppled them out. He then secreted himself in the vicinity and watched them. He saw the defendant and Mckel when they arrived on the ground. About dusk A. P. Townsend joined witness, and they secreted themselves behind some rocks not far from the horses. Defendant and Mckel soon came to the horses. Defendant went to the nearest horse, dropped his rope, and took the horse around the neck, but soon released him. He then went to the .second horse, and was in the act of unhoppling him, when the witness stepped from his covert and ordered him to hold up his hands. Defendant exclaimed “Oh!” throwing up his hands, and then said that the horses belonged to his uncle, Jack Coggins. Witness asked' defendant who owned the rope. He replied first that he did not know, but afterwards said that he did. The horses were on their accustomed range, but were hoppled there to enable defendant to steal them, under an arrangement with Nickel to apprehend him in the act. On his cross examination, the witness said that the horses belonged to J. C. Benton, but were delivered to him by D. H. Benton, J. C’s. brother, for the uses to which they were put. Witness had the care and control of the horses during the day. Witness passed the defendant and Nickel at one time during the day.</p> <p>D. H. Benton testified, for the State, that he was a party to the plan devised for the detection of the defendant in the act of stealing horses. On the night of June 14 he went to his brother, J. C. Benton, and asked the loan of the two horses. His brother told him to take them. He did not tell his brother his object in borrowing the horses. He turned the horses over to Bull on the morning of the fifteenth for the purpose of hoppling them in the flat where the defendant could find and steal them. They were placed there by Bull with the intent and expectation that defendant would steal them. Witness joined Bull, Townsend and others in the flat after the arrest of defendant. Witness did not give defendant his consent to take the horses. "</p> <p>A. P. Townsend testified, for the State, that on June 15, 1886, Mr. Bull told him that defendant and Nickel were preparing to steal some horses, and divulged to him the scheme adopted to detect defendant in the very act. Witness joined Bull and staid with him until the arrest was made. He detailed the circumstances of the theft exactly as Bull did.</p> <p>J. C. Benton testified, for the State, that his brother Dave came to him on the night of June 14, 1886, and asked the loan of his two horses. He did not say what he wanted with them nor how long he wanted them. Witness told him to take them, and considered he had lent them for an indefinite period. Witness did not then know what his brother wanted with the horses. He did not consent that defendant should take them.</p> <p>E. .A. Birdwell testified, for the State, that he was a party to the scheme devised to detect the defendant. That scheme was formulated upon information given to witness by Nickel that defendant had proposed to him to embark in the horse stealing business.</p> <p>The State closed.</p> <p>Mrs. M. M. Conner testified, for the defense, that on the morning of June 15, 188G, Nickel' came to her house and asked her son Lee, the defendant, if he could go with him to help hunt his horses, and offered to pay him a dollar a day. Defendant replied that he had no horse to ride, but that, if he knew where he could find any of his uncle’s horses, he would go. Nickel asked him what brand his -uncle gave. He replied that he gave the half circle IV. Nickel then said that he knew where such horses could be found. Defendant then borrowed a saddle from Will Billings, and left with Nickel to hunt Nickel’s horses. Witness gave defendant some money, telling him to bring her some coffee and sugar if he went by the store. After defendant’s arrest, witness sent for and got the saddle borrowed from Billings, and found the coffee in one of the pockets.</p> <p>Jack Coggins testified, for the defense, that he had several horses in Coleman county, branded half circle IV. He gave the defendant, his nephew, authority to handle, look after and use those horses.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

<p>1. Murder—Self Defense—Charge of the Court,—The evidence on a murder trial disclosed that for a period long anterior to the homicide the deceased was at enmity with the accused; that he had repeatedly, without apparent probable or reasonable cause, charged the accused with a felony; that he had threatened to kill the accused; that he had conspired with one T. to kill the accused, ahd that, at the time of the homicide, he was acting together with T. in pursuance and furtherance of said conspiracy; that he and T. made an unsuccessful attempt on the night before the homicide to induce other parties to co-operate with them in the murder of the accused on that night, of which effort on the part of the deceased and T. the accused, on the same night, was informed; that on the next morning, immediately after a conference with T., the deceased, armed with a pistol, accosted the accused and again charged him with the felony; that the accused thereupon demanded that the charge be retracted by the deceased, when the deceased placed his right hand to his right side (where his pistol was afterward found), and the accused fired the fatal shot. Held, that the evidence fairly raised the issue of self defense, and authorized the court to charge the jury upon that issue; but that, as there was no evidence tending to show that the accused had forfeited his right of self defense by seeking and provoking the difficulty, the charge upon that issue was not authorized by the proof, was prejudicial to the accused, and was, therefore, erroneous.</p> <p>3. Same.—The rule prescribing the extent to which a person in emergency is authorized to act upon appearances of danger is as follows: If, from the standpoint of the slayer, it reasonably appeared to him, from the eircumstances of the case, that the danger existed, and he acted under the reasonable belief that it did exist, he was justified in defending against it to the same extent, and under the same rules, as if the danger had been real. The charge in this case was erroneous, in that it limited such right of the accused to his honest helief that he was in danger, and erroneously made this idea prominent by reiteration.</p> <p>3. Samb—Threats.—The charge of the court is otherwise erroneous in that the instruction relating to the threats uttered by the.deceased against the accused is disconnected from that portion of the charge which relates to self defense, whereas it should have formed a part of the instruction on the law of self defense, and should have been given in immediate connection with that issue. See the opinion in extenso on the subject.</p> <p>4. Practice—Evidence.—It was competent for the accused to prove that the deceased had no probable cause to charge him with felony, and did not believe the charge to be true when he made it, but such proof could not be made by the statement of a witness that he investigated the charge of felony made by the deceased against the accused and discovered no evidence to support it, such statement being merely the conclusion of the witness.</p> <p>5. Samb.—The defense in this case proposed to prove the declarations of T., the co-conspirator of the deceased, made subsequent to the homicide. Held, that the proposed proof was properly excluded, it being but hearsay, and not part of the res gestae, nor admissible under the rule that the declarations of one conspirator, pending the conspiracy, are admissible against the other.</p> <p>6. Same—Privilege of Counsel —The evidence disclosing the complicity of T. with deceased in a conspiracy to kill the accused, denunciation of T. by counsel for the defense did not constitute a breach of ‘the privilege of argument, but was authorized by the facts in proof. Such denunciation of T. could not warrant the prosecuting counsel to abandon the record in the case, and on his personal knowledge review T.’s con neetion with two subsequent homicides, in the first of which he was the slayer, and in the latter the slain, and both of which were wholly foreign to the case on trial. •</p>

Tried below before the Hon. Sam R. Frost. The conviction in this case was in the second degree for the murder of 'E. H. Moses, and the penalty assessed against the ap- ; pellant was a term of fifty-five years in the penitentiary. A. N. Stewart was the first witness for the State. He testified that he formed the acquaintance of the defendant and the deceased at the same time, about Christmas, 1886.

<p>Appeal from the District Court of Navarro. Tried below before the Hon. Sam. R. Frost.</p> <p>The conviction in this case was for an attempt to rape one Allie J. McIntyre, and the penalty assessed was a term of four years in the penitentiary.</p> <p>The transaction upon which this prosecution was predicated is the same upon which the appellant was previously prosecuted to conviction under an indictment charging him with an assault with intent to rape the said Allie J. McIntyre, and which conviction was reversed by this court at its Galveston term, 1887, upon the ground that the evidence on the trial would not support the conviction for the offense charged. That case will be found fully reported in the twenty-third volume of these Reports, commencing on page 204. The evidence adduced upon that trial, and set out at length in the report of the same, is identically the same evidence adduced upon this trial from the same witnesses.</p>

<p>1. Burglary—Indictment—Evidence — Charge or the Court.—To constitute a nocturnal burglary, under the statutes of this State, the house must have been entered by force, threats or fraud. The indictment in this case charges that the defendant “did by force, in the night time, break and enter the house, ” etc. Held, that, to authorize a conviction, under this indictment, it devolved upon the State to prove beyond a reasonable doubt that the accused entered the house by applying actual “ force” to the building. In failing to so charge the jury, and in refusing to give a special instruction in substantial compliance with the rule announced, the trial court erred.</p> <p>2. Same—Evidence.—There was not only a total absence of evidence on this trial tending to show an entry by breaking or by force, as alleged in the indictment, but the proof was positive that the entry was made • through an open door. Held insufficient to support the conviction for burglary.</p>

<p>Appeal from the District Court of Walker. Tried below before J. M. Maxcy, Esq., Special J.udge.</p> <p>The conviction in this case was for the theft of a beef, the property of James Spiller, and the penalty assessed was a term of two years in the penitentiary.</p> <p>James Spiller was the first witness for the State. He testified 'that, in January or February, 1883, he missed his certain red-roan four year old cow from her range. About the same time he received information that the defendant had recently killed a :beef. He then got his neighbor, Mr. Oliphant, and his two sons, Tom and Bailey, and a negro named Bob Taylor, to go with him ■ to defendant’s house to see what discoveries he could make. He sent Tom Oliphant to get Mr. J. Gr. Johnson to meet them at defendant’s house. Witness, Mr. Oliphant, Baily Oliphant and the negro reached the defendant’s house a little in advance of Tom Oliphant and Mr. Johnson. They did not find defendant at home, but saw him at a distance from thé house. They sent for him, and he and Jim O’Bryan came together to the house. Witness i then told defendant that he had come in search of his cow, which be described. Defendant replied that he killed a beef a day or two before, but that it was a red and white “pided” beef that he got from Charley Bowen. He said further that he paid Bowen for the beef with money that he got from Doctor Thompson. Witness then asked defendant where the hide of the animal he killed was. He replied that he sent it to town by Jim O’Bryan. O’Bryan, upon being questioned, denied that he ever took a hide to town for defendant. Defendant then said that he sent the hide to town by Bob Handy, and, on being pressed, he corrected himself again, and said that the hide was taken to town for him by a convict who went to town in Mr. Johnson’s wagon.</p> <p>Witness then told defendant that it was his purpose to search the place for the beef. Defendant asked him if he had a search warrant. He replied that he had not, but that i Mr. Oliphant, who was a justice of the peace, was present, and could very readily issue one. The witness’s party then went to the defendant’s smoke house, the door of which they found locked. Being told to produce the key, the defendant went into his house ostensibly to get it, but remained so long that witness ordered him to return and open the door, as he and his party were determined to get into the smoke house. Defendant reluctantly produced the key and the party entered the smoke house, in which, at the point expected by witness, they found a barrel of fresh beef The parties with the witness at that time were Mr. Oliphant, Tom and Bailey Oliphant, Mr. Johnson and the negro Bob Taylor. Finding nothing but the barrel of beef in the smoke house, the party went out to look for the hide and the refuse portions of the animal slaughtered. On getting a few yards distant from the smoke house Tom Oliphant remarked that he saw a hide of some kind hanging up in the smoke house loft. The party then went back and found that the defendant’s wife had relocked the-■smoke house door. • She refused to produce the key until required to do so by defendant. The party then re-entered the smoke house and found two pieces of hide in the loft, which they took outside and spread on the ground side by side. It was discovered that a strip had been removed from the hide. The strip, if the hide belonged to the witness’s animal, would have removed the brand, the brand being on the hip, and the strip being taken from that part of the hide. The ears were also missing from the hide. The hide was of the, exa’ct color of the hide of the witness’s missing animal. Witness asked the defendant why the hide had been split. He replied that Johnson’s wagoner split it te get a whip lash. Being further questioned about the missing strip, the defendant said that some person, not remembered by witness, cut the strip out to make “neck straps” with. Witness then asked defendant for the head of the slaughtered animal. He said that it would be found in the yard. An unsuccessful search of the yard was made, and the party went to the field, passing over a. .place where the unusual appearance of the grass attracted Tom Oliphant’s attention. Returning to- that place Tom Oliphant pulled up some of the grass, which, it was discovered, had no roots. The place was then dug into, and the feet and head were-found. The head and horns and feet, in shape, color and size, resembled the head, horns and feet of witness’s missing cow.</p> <p>Mr. Johnson then asked defendant if the discoveries made did not look suspicious. He replied that it did, but that he did not know who buried the parts unless some of the women did. The place where the cow was slaughtered was then found near an old plum orchard, about one hundred and fifty yards distant, from defendant’s house. That spot had been covered by someone with moss and plum bushes. The witness and the parties with bim then held a council, and Mr. Johnson, who owned the-place where defendant was living, told defendant that he did not want cow thieves about him, and that he, defendant, could not stay any longer on the place. It was then determined to-postpone the arrest of the defendant for a day or two upon the impression that he would leave the neighborhood, and by that means relieve the neighbors of his presence. As expected, the' defendant left at once, and witness did not see him again for several years, when he was brought back by the sheriff and placed in custody. The hide, horns, head, and feet found on defendant’s premises resembled closely the remains of witness’s missing cow, and witness was' satisfied, but of course could not swear with absolute certainty, that they were the remains of the identical cow he lost. The cow described by witness belonged to him, was on the range in his possession, and was taken from that range without the knowledge or consent of witness.</p> <p>Gross examined, the witness stated that, in testifying that; in Ms opinion, the remains described were the remains of his animal, he based his opinion upon the color, size, age and sex of the slaughtered animal, as disclosed by the hide and the shape of the head and horns. Witness could not remember when he last saw his cow before he found the remains on defendant’s place, but his animal was very gentle, and came up to the house very often. She would have been four years old in the spring of her disappearance—1882. Witness owned four red roan cattle on the range at that time, one of them being the animal in question, another an aged cow, and two of them heifers. On a former trial of this case witness testified that he had two red roan cattle at the time mentioned, but he went back before the jury of his own accord, corrected that statement, and testified that he had four head. Witness did not now remember that he went before the first grand jury that met after the alleged theft, but knew that he had been before several grand juries since the. theft of this •cow. Bob Taylor, the negro who was with witness. and his searching party, was a convict. Green Whitehead was well acquainted with the witness’s cattle in 1881 and 1882. Green Whitehead never, at any time, told witness that he had seen one of witness’s red roan cows dead in the bottom. Witness had never before heard of one of his red roan- cows being found dead in the bottom. On one occasion, just before the alleged theft, the defendant, in passing witness’s house, told witness that he was going to get some cattle from Bowen. On his return from that trip he told witness that he could not get- Bowen’s cattle, as they were all under mortgage to Eastham.</p> <p>James G. Johnson was the next witness for the State. He testified, in substance, that Spiller sent for him to meet him at defendant’s house on the eleventh day of January, 1882 (as shown by witness’s memorandum book), to assist in the search of defendant’s premises for fresh beef and the remains of a slaughtered animal. The smoke house door was open when witness reached defendant’s house. From this point the witness testified substantially as Spiller did as to what occurred on the-¡defendant’s premises, and as to what was discovered and how St was discovered, and as to defendant’s statements concerning [the matter. He testified, in addition, that, a short time before the ’ search of defendant’s house, defendant came to him to borrow money with which to buy several head of cattle, but witness-, did not let him have the money.</p> <p>Bailey Oliphant, for the State, corroborated the witness Spiller in detail, and testified, in addition, that when the defendant, claimed to have purchased the animal slaughtered from Bowen, he exhibited a bill of sale to support his statement. That bill of sale was not signed by Bowen, but by one C. E. Ella, and transferred an animal wholly different in color from the color of the hide found in the smoke house. Defendant’s attention was called to the discrepancy between the description given in the bill of sale and the color of the hide found, as stated.</p> <p>Doctor Thomasson testified, for the State, that, about ¡November 17, 1881, he loaned the defendant money for the purpose of purchasing several head of cattle from Charley Bowen. Defendant paid the loan on January 1, 1882, and told witness that he could not and did not buy Bowen’s cattle, because they were under mortgage to. Eastham. The defense admitted that defendant left the country immediately after the search of his premises in 1882, and that he was brought back by the sheriff of Walker county.</p> <p>The State proved the venue, and closed.</p> <p>Green Whitehead, the first witness for the defense, testified, in substance, that he lived on Spiller’s place in 1881 and 1882, and attended to and knew Spiller’s cattle. In January, 1882, Mr. Spiller owned three red roan cattle over three years old, one being an aged cow, which was afterward sold. Spiller still had one of the said animals, and one of them disappeared, and was-the animal which Mr. Spiller claimed was killed by defendant. This witness, designating no particular time, said that he saw the dead body of a red roan cow in the bottom on the range of Spiller’s cattle. That cow had been drowned. Witness then thought, and told a party with him that he thought the dead body was one of Spiller’s red roan cows. That party replied that he did not think so. The witness knew the cattle belonging to Charley Bowen at that time, and on which Mr. Eastham had a mortgage. Among them was a red roan cow, very much like Spiller’s missing cow. Witness afterward gathered the Bowen cattle covered by Eastham’s mortgage and delivered them to Mr. Eastham’s agent. The red roan cow belonging to Bowen was not among those so gathered and delivered by witness to Eastham’s agent. Witness was present at Spiller’s house when 'defendant passed it returning to his home from Bowen’s". He ■heard defendant tell Spiller that he did not get the Bowen cattle because they were under mortgage to Eastham, but witness understood him to also say that he was going back to see Bowen about the cattle. The witness knew that Charley Bowen left the country shortly afterward. Witness did not personally know why Bowen left. On his cross examination the witness said that he never told Mr. Spiller that he saw the dead body of a red roan cow which he thought belonged to him, Spiller. Witness did not make a close examination of the dead cow, and did not know absolutely that it was Spiller’s cow, but he thought so then. He did not see nor examine for brands on the dead body. The cow had been dead several days when witness saw it, and was about half devoured by vultures. The witness did not know what became of the Bowen red roan cow. .</p> <p>James O’Bryan testified, for the defense, that, at the time of the slaughter of the alleged stolen animal, the witness and his wife, Bob Taylor and the defendant’s mother-in-law lived with the defendant and-his wife, on the Randall place, then in charge of Mr. Johnson. The cow slaughtered was driven up with some oxen and other cattle by Bob Taylor. Witness was then confined to the house with the measles, and was not present at the killing. Defendant claimed the animal as one bought by him from Charley Bowen, and witness knew that, some time before the slaughter of the animal, defendant got some money for a bale of cotton he sold. About that time witness heard defendant and Charley Bowen talking about a proposed purchase by the defendant of a beef or beeves from Bowen. The feet of the slaughtered animal were left on the gallery for several days, and until witness heard the defendant’s mother-in-law declare that they were becoming offensive, and she directed Bob Taylor to take them and bury them to prevent them from impregnating the air with stench. Bob Taylor took them off as directed, but witness did not know what he did with them. Witness did not see defendant when 'Taylor brought the beef to the house. Taylor, when he drove the beef up, was riding defendant’s horse. Both witness and Taylor, who were being “furnished” by defendant, ate some of the beef. Witness did not know who killed the beef.</p> <p>Eliza O’Bryan, the wife of James O’Bryan, testified, for the 'defense, that a few days after the slaughter of the beef at defendant’s house, she heard defendant’s mother-in-law tell Bob Taylor to take the feet of the beef off and bury them, and she saw Taylor leave the house with them, taking a spade with him. Defendant claimed that he bought the animal from Charley Bowen.</p> <p>Davis Thompson, the brother-in-law of the defendant, testified, for the defense, that, a short time before the alleged slaughter of the beef on defendant’s premises, he went with defendant to the house of Charley Bowen, and saw .Bowen point out to the defendant three certain cattle, one being a red spotted cow, one a male, and the other a reddish roan heifer. On the following Monday, the witness, at defendant’s house, saw the defendant pay Bowen some money for the cattle previously pointed out. Witness knew that Ella Bowen, the step-daughter of Charley Bowen, could write.</p> <p>Mattie Smith, the defendant’s wife, testified, in his behalf, that about a week before the slaughter of the beef involved in this prosecution, she was present and witnessed the transaction in which the defendant bought the slaughtered animal and some other animals from Charley Bowen. She saw Bowen point the cattle out to defendant, and she saw the defendant pay Bowen the purchase money for the same. The animal killed was fine of the cattle so bought by defendant. The hide found in the smoke house by Spiller and others, came off that animal. Bob Taylor df ove .the said animal to the house and killed it. Afterwards the feet were dragged to the house by the dogs. Witness’s mother told Taylor to take them off and bury them, to keep them from smelling. Taylor took the head and feet and a spade, and went off towards the place where they were afterwards found.</p> <p>Benton Randolph, of the law firm of Abercrombie & Randolph, testified, for the defense, that, two or three years ago, his firm was employed to represent the defendant in this case. At that time defendant gave the said firm a bill of sale,,in the handwriting of Doctor J. A. Thomasson, which purported to convey certain, cattle from Charley Bowen to defendant. That bill of sale was burned, with other legal papers belonging to the firm, in January, 1887. According to the recollection of the witness, that bill of sale gave no description of the cattle conveyed, nor was it signed by Bowen, but purported to have been signed by some one else, whom witness understood .to be a girl. Witness did not know that the bill of sale referred to by bim was the same bill of sale exhibited by defendant to the State witness Oliphant.</p> <p>Judge Abercrombie testified that, according to his recollection, the bill of sale described by Captain Randolph purported to convey three head of cattle, described only by marks and brands, and that it was signed “Ella,” and he thought “C. E. Ella.”</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. Anson Eainey. The conviction in this case was for an aggravated' assault, and the penalty assessed was a fine of five hundred dollars. It was had under an indictment which charged the appellant with the rape of Hattie Gray. Hattie Gray, the alleged injured party, was the first witness for the State.

Habeas Corpus on appeal from the District Court of Wilson. Tried below before the Hon. George McCormick. The relator was held under a capias charging him with the murder of E. T. Wingate in Wilson county, Texas, on the thirtieth day of April, 1887. Upon the hearing of his writ of habeas corpus bail was refused, and the relator was remanded to the custody or the sheriff.

Tried below be fore the Hon. H. Teichmueller. The conviction in this case was in the first degree, for the murder of M. Cloran, and the penalty assessed against the appellant was a life term in the penitentiary. There is no statement of facts.

<p>1. Practice—Evidence—Change of Venue was applied for by the accused upon an affidavit setting out the existence of such prejudice against him in the county of the forum as would deprive him of a fair trial. This affidavit was met by the State on affidavit impeaching the means of knowledge of the compurgators of the accused, and upon this issue the trial court permitted the State to call a witness and ask him “if there was sufficient prejudice against the accused in Tarrant county to prevent a fair trial.” The defense objected to' the question as not pertinent to the i sue. Held, that the evidence indicated was admissible as bearing upon the means of knowledge of the compurgators, and the objection was properly overruled.</p> <p>8. Same—Continuance is properly refused if, in view of the evidence on the trial, the absent testimony as disclosed in the application is either immaterial or is probably untrue. Note the statement of the case for such testimony set forth in an application for a continuance.</p> <p>3. Same—Jury Law—Bill of Exceptions reserved to the overruling of a challenge to a juror for cause, is not complete, nor will it be considered by this court if it neither shows that the juror served on the jury, nor that he was challenged peremptorily by the accused, and that an objectionable juror was forced upon the accused after his peremptory challenges were exhausted.</p> <p>4. Murder—Self Defense—Charge of the Court—Eact Case.—The evidence presenting only the conflicting theories of murder of the first degree on the one hand, and perfect self defense on the other, the trial judge correctly confined his charge to those two issues, and properly refrained from charging upon murder of the second degree and manslaughter. See the statement of the case for evidence held sufficient to support a conviction for murder of the first degree.</p>

<p>Appeal from the District Court of Taylor. Tried below before the Hon. T. H. Conner.</p> <p>The conviction in this case, supplemented by a term of three years in the penitentiary as punishment, was had under an indictment which charged that defendant, on the twenty-sixth day of August, 1887, in Taylor county, Texas, attempted to pass to one H. A. Hart a certain forged instrument in writing, which, as shown in the indictment, and afterward in evidence, reads as follows:</p> <p>“No. 5.</p> <p>“Ballinger, Texas, July 15, 1887. “First National Bank of Ballinger pay to John Burks or bearer the sum off forty-three 43 dollars.</p> <p>“S $43.00. D. E. Sims.”</p> <p>To this prosecution the defendant pleaded specially his former conviction for attempting to pass the same instrument described in this indictment. The indictment attached ,to this plea as an exhibit described the same written instrument, but alleged the attempt to pass it on one R S. Tuttle.</p> <p>R S. Tuttle was the first witness for the State. He testified, in substance, that, in August, 1887, he was a clerk in the dry goods store of Mr. Laposki, in Abilene, Taylor county, Texas. On the morning of the twenty-seventh day of that month the defendant and another person came into said store, and defendant asked to be shown some clothing. He then selected for purchase clothing to the amount of six dollars and twenty-five cents, and offered the witness in payment the check now in evidence. Witness told him to go back to the desk and indorse it. Defendant went alone to the desk, and witness saw him dip a pen into an inkstand, and then bend his body over the desk as if writing. He soon brought the check back to witness with his name ’indorsed on the back. The indorsement was yet ink wet when he again tendered it to witness. He then told the witness that he 'had been employed on the ranch of D. E. Sims, and that the check was drawn, signed and given to him as wages by Sims’s wagon boss, who had authority from Sims, and ordinarily signed . Sims’s checks. Witness had no authority to accept the check, and declined to do so. Witness'was positive that no person was with defendant at the desk when he indorsed the check. The witness testified, for the State, on another prosecution of this same defendant (Case No. 582) for attempting to pass a forged instrument, his testimony on that trial and on this being the same.</p> <p>H. A. Hart testified, for the State, that, in August, 1887, he was clerking in Bledsoe’s store, in Abeline, Taylor county, Texas. About nine o’clock on the night of August 26, the defendant and another person came into Bledsoe’s store, and defendant selected for purchase five dollars and seventy-five cents worth of clothing, and offered witness the check in evidence, directing him to take pay out of it. He said that he received the check as payment for his work on the TOD ranch, on the Colorado river, near Ballinger. Witness handed the check to young Mr. Bledsoe, who declined to cash it, and handed it back to witness. Witness then handed it back to defendant, and told him to call again next morning. He called again between eight and nine o’clock on the next morning, and selected a handkerchief, making his bill seven dollars, and again presented the check. Mr. Bledsoe, the proprietor of the store, examined the check and declined to cash it. Defendant said then that he had worked for Sims, and that the check was signed by Sims’s wagon boss, and was given to him for work. The check exhibited in evidence was the same offered by defendant to witness, but since that time it had been indorsed. Witness testified for the State, on a previous. trial of the defendant in case Ho. 582, for an attempt to pass a forged check. His testimony on that trial was substantially the same as his testimony on this trial.</p> <p>Albert Bledsoe testified, for tlie State, to the same facts as testified by Hart.</p> <p>Robert Burch testified, for the State, that in August, 1887, he was constable of the Abeline precinct, in Taylor county. On the morning of the twenty-seventh day of that month, he saw the defendant standing near the bank corner, and, having heard some suspicions expressed about a check the defendant had in his possession, the witness called him and asked him about it. He said that the check was given him as a balance on wages due him as a late employe on the TOD ranch, and that he could get Mr. Watson, of Abeline, to identify him. Witness had not then arrested him, and had no warrant for him, nor had a complaint then been filed against him, but witness did not intend to let him get away unless he accounted for his possession of the check. Witness went with him to Watson, who failed to identify him, and then witness arrested him. Witness testified, substantially as he has here testified, in case Ho. 582, against the defendant for attempting to pass a forged check.</p> <p>The State then introduced in evidence the check described in the indictment, and called D. E. Sims to the stand. Mr. Sims testified that he owned the TOD ranch, on the Colorado river, near Ballinger, but that he did not know the defendant; had never had the defendant in his employ on his said ranch or elsewhere; had never owed the defendant any sum of money; had never signed a check in his favor, and had never authorized anybody else to do so, and had never had a wagon boss in his employ. Witness had done his banking with the First Hational Bank of Ballinger for a year or more. He knew of no other D. E. Sims, nor of any other TOD ranch, than himself and his said ranch. The witness testified, for the State, in cause Ho. 582, against the defendant, for attempting to pass a forged instrument, substantially as he has testified on this trial.</p> <p>J. E. Thomas testified, for the State, that he had known the defendant for ten years. He knew him in Callahan and Coleman counties as Buck White, and by no other name, and as the son of Mrs. White, whom the witness well knew.</p> <p>The State closed.</p> <p>The defense introduced in evidence the indictment described in the defendant’s plea of former conviction, and the judgment of the court pronounced upon the verdict of the jury, and the case was closed.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. T. H. Conner. The conviction in this case was for attempting to' pass to one It. S. Tuttle, the same forged instrument which is set out in the statement of the preceding case of Burks v. The State. This is the cause referred to by the witnesses in the preceding case as the cause number five hundred and eighty-two on the district court. docket of Taylor county. The penalty assessed in this case was a term of two years in the penitentiary.

Tried below before the Hon. B. McDaniel, County Judge. The opinion sufficiently discloses the case. The penalty assessed was a fine of ten dollars.

Tried below before the Hon. T. H. Conner. The conviction in this case was for the theft of one head of cattle, the property of John A. Walker, in Taylor county, Texas, on the seventh day of January, 1887. The penalty assessed against the appellant was a term of two years in the penitentiary. Deputy Sheriff James Humphreys was the first witness for the State.

Tried below before the Hon. Sam R. Frost. The conviction in this case was for forgery, and the penalty assessed was a term of two years in the penitentiary. Peter C. Stubbs was the first witness for the State. The forged instrument being exhibited to him, he testified that he first saw it at Bounds’s store in Wortham, Freestone county, Texas, when .he went to settle his account. The account presented to him 'called for the amount of the order.

Tried below before the Hon. J. H. Rice, County Judge. The appellants in this case were jointly tried and convicted upon an indictment charging them with adultery, on and before the first day of December, 1884. The penalty assessed was a fine of one hundred dollars against each of them. The opinion discloses the substance of the indictment.

Tried below before the Hon. D. H. Scott. This conviction was in the second degree for the murder of A. J. Guess, in Fannin County, on the twenty-fifth day of April, 1887. A term of seven years in the penitentiary was the penalty assessed against the appellant. Mrs. S. J. Guess was the first witness for the State.

Tried below before the Hon. Sam E. Frost. The conviction in this case was for an assault with intent to rape Mrs. Bettie Livingstone, and the penalty assessed was a term of two years in’ the penitentiary. Mrs. Livingstone testified, for the State, in substance, that,, between three and four o’clock on the morning alleged in the indictment, she was awakened by the sound of some one stepping across the floor of her room.

Tried below before the Hon. Eugene Williams on exchange. The conviction in this case was for the theft of a horse, the property of B. F. Cage, and the penalty assessed against the appellant was a term of ten years in the penitentiary. B. F. Cage was the first witness for the State. He testified, in substance, that some time in the month of April, 1886, he lost his certain mare from her range in Blanco county, Texas.

<p>1. Abortion—Indictment.—See the statement of the case for an indict ment held sufficient to charge the offense of producing an abortion by an unlawful assault upon a pregnant woman.</p> <p>2. Same—Practice—Evidence.—In a prosecution for producing an abortion by an unlawful and violent assault, the injured female, although the wife of the accused, is a competent witness against him.</p> <p>3. Same—Expert Testimony.—The prosecutrix in this case, having testified to the violence inflicted upon her by the accused, was also permitted to testify to her subsequent delivery of two dead children, to the condition of the bodies, and, without first being qualified as an expert, to the fact that the abortion was the result of the violence inflicted upon her by the accused. Held, that the evidence was improperly admitted, under the rule that when “a claimed result becomes so remote that conclusion and deduction are necessary to connect it with a cause, the non-expert witness can only state physical facts, leaving the conclusions to be drawn by the jury.” This error, however, would, in this case, have been immaterial had the witness stated the facts upon which .the opinion was based.</p> <p>4. Practice—Leading Questions are permissible, even on direct examination, if the witness appears to be hostile to the party producing him, or is in the interest of the other party, or unwilling to give evidence. Note the opinion for a case in which, the witness coming within each of the exceptions to the general rule, her testimony was properly admitted.</p>

Tried, below before the Hon. James Masterson, on exchange. Under an indictment which charged him with the murder of John B. Pickren, the accused was convicted of manslaughter, and was awarded a term of two years in the penitentiary. Doctor W. O. Langdon was the first witness for the State. He testified, in substance, that he was called to see the deceased, under information that he had just been stabbed. Deceased died just as witness got to him.

Tried below before the Hon. T. M. Paschal. The conviction in this case was for the theft of two hundred and seventy-five head of sheep, the property of C. S. Chilton, in Uvalde county, Texas, on the eleventh day of September, 1886. A term of two years in the penitentiary was the penalty assessed against the appellant. W. C. Bell was the first witness for the» State. He testified ■that he knew the defendant by sight, but had no personal ■acquaintance with him.

Habeas Corpus on appeal from the district court of Eastland. Tried below before the Hon. T. H. Conner. The opinion discloses the entire case.

Tried below before the Hon. George McCormick. This was the appellant’s second appeal from his conviction in the first degree for the murder of West Kirby, in Colorado county, Texas, on the twenty-second day of December, 1886. The penalty assessed against him was a life term in the penitentiary.

Tried below before the Hon. T. H. Conner. The opinion states the case. The penalty assessed was a term of two years in the penitentiary.

Tried below before the Hon. D. P. Marr. The opinion discloses the case. The penalty assessed was a term of five years in the penitentiary against each of the appellants.

Tried below before the Hon. Sam. E. Frost. The conviction in this case was for the theft of one head of •cattle, in Limestone county, Texas, on the twentieth day of June, 1886. The animal was alleged in the indictment to belong to D. W. Carrington. The penalty assessed was a term of three years in the penitentiary. Bill Moss was the first witness for the State.

Tried below before the Hon. D. H. Scott. The conviction in this case was for the theft of a pistol of the value of twenty dollars. The penalty assessed against the appellant was a term of two years in the penitentiary. H. S. Bettes was the first witness for the State. He testified that he was the junior member of the hardware firm of Hicks & Bettes, doing business in the city of Paris, Lamar county, Texas. Witness knew the defendant as Tom Williams.

Tried below before B. W. Foster, Esq., Special Judge. This conviction was for the theft of a cow, alleged in the indictment to be the property of Mrs. Mary Stewig, in Hopkins county, Texas, on the first day of September, 1886. The penalty assessed against the appellant was a term of two years in the penitentiary. Mrs. Mary Stewig was the first witness for the State. She testified, in substance, that she was well acquainted with the defendant, and knew him in 1886.

Tried below before the Hon. T. H. Conner. The conviction was for the burglary of the store house of Leon Caperon, in Taylor county, Texas, on the twelfth day of February, 1887, and the penalty assessed against the appellant was a term of two years in the penitentiary. Leon Caperon was the first witness for the State.

<p>Original application to the Court of Appeals for the writ of habeas corpus.</p> <p>The entire case is disclosed in the opinion, which, though it was delivered on the fifteenth day of October, 1887, was held up by a motion for rehearing, which was not disposed of until the tenth day of December, 1887. The briefs of the counsel for the relator and the State are both able and exhaustive, but are necessarily too long for insertion in this report, and can not, in justice to their authors, be summarized.</p>

<p>Appeal from the District Court of Kaufman. Tried below before the Hon. S. R. Frost, on exchange.</p> <p>The indictment in this case was presented in the district court of Hunt county, Texas, on the fourteenth day of July, 1885. It charged the appellant with the murder of Anna Smith, in said Hunt county, on the second day of July, 1885. At its February term, 1886, the district court of Hunt county, upon the application^ the appellant, entered its' order changing the venue to the county of Kaufman. This trial, which was had in the district court of Kaufman county, in July, 1887, resulted in the conviction of the appellant for murder in the second degree, and his penalty was assessed at a term of ten years in the penitentiary.</p> <p>The proceedings had upon the appellant’s habeas corpus trial for bail have been condensed in the nineteenth volume of these Reports, beginning on page 572. Several of the witnesses who gave evidence on the said habeas corpus proceedings testified upon trial, but much more in detail. The evidence of said witnesses will be merely summarized in this report.</p> <p>Hansel Mathews was the first witness introduced by the State He testified that, in July, 1885, he lived in the town of Green-ville, Hunt county, and at that time knew both the deceased and the defendant. The deceased came to her death on the morning of July 2, 1885, at a point in Hunt county, about one mile north of Payne’s store, and about six miles north of Roberts Station. A few days prior to July 1, 1885, Miss Lou Vansickle informed the witness that there was to be a ball at Roberts Station on the night of July 1. On that day the defendant asked the witness if he intended to attend the ball. During that day, Miss Lou Van-sickle and .Miss Anna Smith came to town, and witness and defendant arranged to escort them to the ball, the witness to take Miss Vansickle, and the defendant to take Miss Smith. On that afternoon the witness and the defendant, each taking a buggy and team from the witness’s livery stable, drove out to the house, of Miles Vansickle, got the girls, and drove with them to the ball at Roberts Station, Miss Vansickle going in the buggy with witness, and Miss Smith going in the buggy with the defendant. They left the ball at about two o’clock a. -m., on July 2, defendant and Miss Smith going in advance. When witness and Miss Vansickle, on their way home, reached a point about a mile north of Payne’s store, they found Miss Smith sitting under a tree by the roadside. It was then but a few minutes before daylight, and it was the first the witness had seen of Miss Smith since she left the ball at the station. Defendant at that time was standing on the ground in front of his horses, about, one hundred yards further up the road. Miss Vansickle asked.Miss Smith-to get in the buggy and ride with her and the witness, which Miss Smith refused to do. Miss Smith explained that she and the defendant had quarreled, and that she had left his buggy and refused to ride with him. Miss Vansickle persisted in her effort to get Miss Smith to share witness’s buggy with her. Miss Smith, however, as persistently refused, remarking that she had disgraced herself, and would not disgrace Miss Vansickle, and that she expected to stay where she was until she died. Witness and Miss Vansickle then drove on to where the defendant was standing at the head of the horses. He said that he and Miss Smith had quarreled, and that Miss Smith left the buggy, declaring that she would not ride with him. He appeared to be considerably annoyed by Miss Smith’s refusal to continue the ride with him. Witness told him to go back and get Miss Smith. He replied that he would go back and try to get her, if witness would hold his horses. Witness got out of his buggy, and defendant went back towards Miss Smith. Witness then unhitched the traces of the defendant’s horses, and tied the lines to the dash board. He then waited until he heard the defendant and Miss Smith coming, when he and Miss Vansickle drove on toward Greenville. Witness and Miss Vansickle had driven not above two miles, when they heard the rapid approach from behind of a buggy and team. They soon discovered it to be the unoccupied buggy and team of the defendant, the lines still attached to the dash board, as witness had left them. Witness got out of his buggy, caught and hitched the team, and he and Miss Vansickle then drove back over the road they had just traveled, until they reached Powell’s house, where they found the defendant. Defendant, who had his pistol in his hand, got into their buggy, and witness and Miss Vansickle drove back with him to where they first left his buggy standing, that point being about one hundred yards from the tree under which the witness last saw Miss Smith sitting. At that point they found the dead body of Miss Anna Smith, lying by the road side.</p> <p>Upon reaching the place where the body lay, the defendant got out of the buggy, lay down along side the body, and put his left arm under the head, while he held his right hand, still grasping the pistol, behind his back. Witness requested Miss Van-sickle to get out of the buggy and get defendant’s pistol; which she did, and then got back into the buggy. Defendant had previously refused to surrender the pistol to the witness. Witness and Miss Vansickle then drove off towards the branch, and Miss Vansickle fired off the two loads then remaining in the pistol. They then turned and drove around the defendant and the deceased, and left. Defendant, when found by witness and Miss Vansickle at Powell’s, just before the discovery of the dead body, appeared very reckless, and much distressed, and held his pistol in his hand all the time until it was taken, at the body, by Miss Vansickle. Witness did not see defendant after leaving Roberts Station, until he found him standing at the head of his horses in the road, near where Miss Smith afterwards met her death, which was about six miles distant from Roberts Station. It was between four and five o’clock in the morning when he overtook defendant. He was overtaken by the empty buggy and team about thirty minutes after he left the said buggy in the road.</p> <p>Cross examined, the witness said that Miles Vansickle, the father of Miss Lou, lived about ten miles from Greenville, and about eight miles from Roberts Station. The several parties, bound for Roberts Station, left Miles Vansickle’s house about sun down, deceased and defendant traveling in advance. At a. point about two miles from Vansickle’s, witness and Miss Lou found defendant and deceased waiting for them. Witness then produced a bottle of whisky and a package of candy. Witness, defendant and Miss Smith each took a drink of whisky, and Miss Vansickle took some of the candy. The party then proceeded in the same order. Just before reaching Roberts Station witness and Miss Vansickle again overtook defendant and Miss Smith, and the two latter and witness took another drink of whisky. The parties then entered the hotel at the station, and joined the dancers. Witness danced the first set with Miss Vansickle, and the second with Miss Smith. Defendant danced the first set with Miss Smith and the second with Miss Vansickle. After the second dance, witness and Miss Vansickle, and defendant and Miss Smith, left the ball room and took a stroll. There were then no residences about Roberts Station. If Miss Smith drank any whisky after she got to the station the witness did not remember it, but she drank every time, en route there, that witness and defendant did.</p> <p>On the return home, the witness, just after leaving the station, left the main road and took an inferior road which rejoined the main road about a mile further on. A heavy rain had recently fallen and the roads were somewhat héavy. Witness drove as rapidly as he could through the darkness and over the heavy roads, but did not get in sight of defendant and Miss Smith until he found Miss Smith, as stated, beyond Payne’s, sitting under the tree, and the defendant in the road, a hundred yards further on.</p> <p>From this point the witness repeated in detail his narrative on his direct examination, and stated that, when he found the defendant at Powell’s, after Miss Smith’s death, but before he (witness) had seen the body, the defendant was hallooing, crying, moaning and “taking on terribly.” He then stepped up to witness’s buggy, with his pistol in his hand, and said that Anna Smith had killed herself; that, just as he was hitching the last trace, Anna jerked his pistol out of his hip pocket and, before he could interfere, shot herself; that then, as soon as he could, he took the pistol and shot himself, intending to kill himself, but lost his nerve and failed. He then climbed into the witness’s buggy and told witness that Anna’s body was at the point on the road where witness left the buggy, and directed the witness to drive rapidly to that place; which the witness did. On reaching the body, the defendant sprang from the buggy, and threw himself down by the body, in the manner described by the witness on his direct examination. He wept violently and boisterously, and said that if he had the nerve he would kill himself. He appeared to be so frantic and distraught that witness became somewhat apprehensive that he would do violence to himself. Miss Vansickle then secured his pistol, and she and witness drove back towards the branch near where they had last seen Miss Smith alive, when Miss Vansickle emptied the pistol by discharging it. Anna Smith was shot over the left breast, and was powder burned. Defendant was shot in the left shoulder, and was powder burned.</p> <p>On re-direct examination, the witness said that Miss Van-sickle did not drink any whisky at any time on the tragic night, but drank some blackberry brandy. The roads were too muddy “to admit of very rapid driving. W itness had been to Roberts Station but once since the tragedy. Shortly after he and Miss Vansickle left the defendant and the body of the deceased, they met Mr. J. R. Powell and another man going to the body. They were then about three hundred yards from the body. The witness had often seen the defendant before the night in question, but had never attended a social gathering with him before. "Witness did not attempt to disarm the defendant after the tragedy, because he was himself unarmed, and feared that defendant, in his then mental condition, would resist to the extent of doing violence. Previous to this night, the witness had heard the defendant speak of receiving letters from Anna Smith, but did not remember that defendant ever said that he was going to marry her. When defendant got in witness’s buggy at Powell’s he said to witness: “Drive them horses, and drive them d—d quick.”</p> <p>T. J. Humphreys testified, for the State, that in 1885 he was the justice of the peace of the Roberts Station precinct in Hunt county, Texas. As such officer he held the inquest over the dead body of Anna Smith, which he found in the public road, about six miles from Roberts Station, and about a half a mile north of Payne’s store. Several persons, including the defendant, were present when witness reached the "body. Miss Van-sickle produced a forty-eight calibre pistol, between fourteen and sixteen inches long, which she said belonged to the defendant. Witness saw a rope in the possession of Mr. Powell which had some knots and loops in it. The two loops were about three inches in diameter and about six inches apart. The rope was of sea grass, such as is used for horse hopples. A large tree stood about one hundred yards from where the body lay. There were tracks about the body of the tree, and at its foot an imprint left by some person who had sat there. Witness observed nothing wrong about the clothing of the deceased, except a bullet hole over the left breast, at which point the dress was powder-burned. The dress on the body was of white material, and the basque of black velvet. Witness did not see a pool of blood about the body. He impaneled a jury of inquest, and had the body placed in a wagon and taken to Payne’s store. Witness saw no woman tracks about the tree referred to. The ball entered the body* just above the left nipple, and passed straight through the body. Witness also observed a bruise on the girl’s shin, and some bruises on her thigh. Deceased was a small woman, under the medium size.</p> <p>On his cross examination, the witness stated that the bruises on the shin and thigh of the deceased were purple in color. He could not tell how old they were. The bruises on the thigh were not so purple or blue as the one on the shin. Witness reached the body about eight o’clock, and had it removed to Payne’s store about ten o’clock. On his re-examination the witness said that, about thirty minutes after he reached the body, he placed the defendant under arrest. He, defendant, was wounded through the muscles of the left shoulder. When he arrested defendant the witness threw his arms around defendant from behind, and told him to consider himself a prisoner, and to surrender his pistol if he had one. Defendant replied: “If I had a pistol, I would settle it with you and myself.” Defendant had been kneeling by the body, “taking on” a good deal, and exclaiming that he would give worlds to be able to recall six hours. On re-cross examination the witness said that, in “taking on,” the defendant “took on” like one bewailing the loss of a friend. He cried and moaned and “took on” like one crazy or heartbroken. He apostrophized the girl as his lost love, and declared his wish that he had had the nerve to have died with her. He made no effort to escape.</p> <p>J. E. Powell testified, for the State, that he lived about a mile from the point on the road where, in the early morning of July 2, 1885, the dead body of Miss Anna Smith was found. At barely daylight on that morning the witness heard four reports of a pistol. The second shot was fired a few seconds after the first, and the third and fourth shots were then fired in rapid succession. But a short time before he heard the shots, the witness saw a gentleman and lady in a buggy traveling north. ■ Within a few minutes after the shots were fired, the defendant and a man named Williams, a stranger to the witness, came to the witness’s house. Defendant, who then had his pistol in his hand, told the witness that “one of his loves” had shot and killed herself, and that her body was lying in the road. He then said that he wanted a horse to follow his team, which had broken away from him. Witness told him that he had but one horse, which he was going to use, and could not lot him have it Defendant then threw up his hand and asked: “What would you do if I should say that I am going to have one?” Witness then told defendant to wait until he got his shoes on, when he would get a horse and go with him. Defendant was then crying, moaning and “going on” like a person in great distress. About the time that witness got his shoes on, Mansel Mathews and Miss Lou Vansickle arrived in a buggy. Defendant said: “Thank God, there comes Mathews! ” He then went to and got in the buggy with Mathews and Miss Vansickle, told them about the girl killing herself and directed Mathews to drive rapidly to the body. They left, and witness presently followed. En route to the body he heard two more pistol shots, and soon saw Mathews and Miss Vansickle returning in the buggy. Witness went on to the body, where he found the defendant and nobody else. He was lying by the body, weeping and “ taking on” violently. He exclaimed that he would give the world to be able to call back only six hours; that he had promised the girl to die with her, but that his nerve failed him. After lying by the body for about thirty minutes, defendant got up and witness observed a note on the ground, which he picked up. Defendant snatched it from witness’s hand, tore it in two, read the part that remained in his hand and then threw it down, and witness again picked it up. Defendant went to the branch several times to get water. He asked witness to raise the girl’s head, which the witness did, and he then placed his coat under it. He then said' that the body ought to .be shaded, and proposed to pay witness to attend to it. Witness then cut some brush which he arranged over the b’ody.</p> <p>Very near the road, and about one hundred yards south of where the body lay, was a tree in the sand, at the roots of which the witness observed the impression left by some person who had sat there. There were the tracks of both a man and woman about the roots of that tree, and also an impression made by the heel, toe or side of a foot. The tracks of a man and woman led from that tree up the road to a point about opposite the point where Charley Simmons claimed to have seen a pool of blood. Witness saw no woman’s tracks beyond that point, although for a short distance, until it reached hard ground, the soil was soft enough to retain the impression of a foot. Witness could see tracks on the hard ground, but they were too indistinct to show whether they were made by the feet of a man or a woman. Near the place in the road where the hind wheels of a buggy had. stood, the witness found a strand of a three-quarter inch sea grass rope, which said rope was slightly stained either with blood or paint. There were two loops in that rope, about a foot apart, one of the loops being partially drawn out. Witness could not remember exactly what the defendant said in connection with his statement about having tried to kill himself, but it was something to the effect that he might as well have done so, as he would “be hung any how.” The witness saw about half a teacup of blood at the point where the body lay. Defendant told witness how the girl got .his pistol, but witness could not now recall his statement in that connection.</p> <p>On his cross examination, the witness said that he was sitting on the side of his bed, dressing, having just gotten up, when the defendant and Williams came to his house.. He had not seen the man Williams since the defendant’s habeas corpus trial in November, 1885. The first four shots mentioned by the witness were all fired within ten seconds, Defendant was weeping and moaning during the whole time that he was at witness’s house on that morning, but when he saw Matthews and Miss Vansickle coming to the house his face brightened perceptibly,, and lie said earnestly: “Thap.lc God, there they come!” It was a mile from witness’s house to the point where the body was found, and a mile thence to Payne’s store. The soil in that part of the country was very sandy, and the ground was heavily timbered. The witness saw no pool of blood, nor any blood except the small ■ quantity he saw at the place where the body lay. Several days after the tragedy, and after a rain had fallen, Charley Simmons showed the witness a small spot near an elm tree, about ten steps from where the body was found; but that spot was clean, and looked to the witness like discoloration produced by the urine of a horse. Mr. Merchant’s horse was hitched to that elm tree on the day the body was found and examined. Witness looked all around that place on the day of the tragedy, but discovered no blood; and he was satisfied, if there had been any blood there on that day, he would have discovered it. The place under the large tree, where the witness saw the impression of a' sitting person, was a sand drift, and it extended up to the tree. The impression on it appeared to have been made by the body of a person in either a sitting or lying posture. The foot impressions were about three feet from the roots of the tree. The ravel of grass rope was found in the middle of the road. It may have been either rust, blood or paint on the rope. There was a place on the road, about six hundred yards from the place of the tragedy, where a man had camped. Witness followed the tracks of a man from that camp to the place of the tragedy, and then to his house, and presumed that those tracks were made by the man Williams.</p> <p>Doctor T. E. Yoakum was the next witness for the State. He testified that he was present at the inquest upon the body of the deceased, which was held at Payne’s store, in Hunt county, Texas, on July 2, 1885. He made a close and critical examination of the body, and discovered that the cause of the girl’s death was a gun shot which entered her left breast between the third and fourth ribs, and passed straight through the body. He saw three purple bruises on the inside of the right thigh, which were of the shape and size of finger nail prints. There was also a pm all bruise on the inside of the forefinger on the right hand, between the first and second joints. Witness saw no other bruises on the body. He made a vaginal examination with an instrument. He found the vagina enlarged and relaxed, and filled with a secretion which he took to be male semen. He, however, was not positive as to the character of the secretion, but was satisfied that whatever it was, it was deposited but a short time before death. There was no bruise on the left leg. The girl would weigh about one hundred and twenty-five pounds, and was about medium size. As a general rule, the arms of a woman are shorter than those of a man. Witness saw a long pistol at the inquest. On his cross examination, this witness stated that if the girl’s heart was in a normal position, the bullet would have passed through the upper part of it. The effect of lacing is to force the heart upward a little. If the girl’s heart was so elevated by tight lacing where she was shot, the ball pierced the organs of the heart. Paralysis of the heart, in that event, ensued instantly, and prevented the flow of more than a very little blood. On his re-examination, the witness stated that if the ball struck the artery above the heart, the girl could not have taken more than one or two steps after receiving the shot. If her heart was in its normal position the ball would have pierced an artery and produced a considerable flow of blood. The position of the body after it has fallen has much to do with the quantity of blood that escapes through a wound. The body of an average sized woman contains from fifteen to eighteen pounds of blood. If the ball had cut the artery above the heart, at least twenty-five per cent of the blood in the body should have escaped. If the ball punctured the muscles of the heart, death resulted almost instantly, with little loss of blood. It would have required a post mortem examination to determine accurately the quantity of blood discharged through the wound.</p> <p>Charley Simmons testified, for the State, that he was at the place of 'the tragedy on the day after the body of the deceased was found. At a point ten or fifteen feet from the road, and about twenty steps from the tree under which the girl was said to have sat, and about seventy-five or eighty yards from where a buggy had stood in the road, the witness saw a pool of blood which must have originally "contained as much as a gallon. It covered a space as large as a hat. Witness showed that place to J. R. Powell four or five days later. On his cross examination, the witness said that the weeds about the pool of blood that he saw had been mashed down. The pool was an inch deep, and was a foot across. The said pool was near an elm tree, and had a thin scum of blood over it when witness saw it. Mr. Powell was the first man witness told about the pool of blood, or showed it to except his father, brother and a Mr. Baird, whom he told of his discovery. Witness’s little brother was with him when he found the pool of blood. Witness lived with Ms father about two hundred yards from Payne’s store. He was at Payne’s store during the inquest, knew what was going on, and saw the defendant there.</p> <p>John Hunter testified, for the State, that he was the mail carrier between Greenville and Payne’s store, in Hunt county, in July, 1885. He slept at nights at the house of Mr. J. R. Powell. While he was feeding his horses at Powell’s barn, on the morning of July 2, 1885, he heard four pistol shots. Soon afterwards he saw an empty buggy and a team pass the house. The horses were then loping. The defendant soon came to Powell’s house and said that one of his loves had shot and killed herself. Witness afterwards went with Powell to the body, and afterwards went to Greenville. A mile or two from Powell’s he passed the runaway buggy. It was then standing in the road, with two horses hitched behind it. A silk handkerchief lay on the buggy seat. The witness also saw some blood on the buggy seat.</p> <p>On his cross examination, the witness stated that he lived at Payne’s store at the date of the tragedy, and still lived there. He had never testified in this case before, and had never told any one about what he knew or saw, since he was subpoenaed, now a year ago. He could not now say what, or to whom, he told about it before he was subpoenaed. Witness was about one hundred yards from Powell’s house when he heard the four shots fired. They were fired very near together, with a shorter interval between the third and fourth than between the first and second shots. The buggy and horses passed Powell’s house within five minutes after the shots were fired. The buggy, when witness afterwards saw it, was standing three or four feet from the road. Witness rodé by the buggy without stopping. He did not examine the cushion closely, but saw something on it which looked to him very like blood. This belief was strengthened by the fact that he had seen the dead woman up the road. The blood was spattered on the east end of the cushion. Witness could not say positively that it was blood he saw on the cushion. Witness had carried the mail for ten months at the time of the tragedy, but did not know the name of the post master in Greenville. He had no other acquaintance in Greenville than Charley Hill, at whose place he kept his horse when in Green-ville. Witness was at Payne’s store during the inquest over the body, on the evening of July 2, 1885. He saw a great many people at the inquest, but told nobody what he had seen on that morning.</p> <p>J. As May testified, for the State, that he lived in Greenville, Texas, in July, 1885. About six weeks before the tragedy the defendant borrowed of the witness a forty-four calibre Smith' & Wesson pistol, leaving his small, five shooting pistol in the place of it. He didn’t tell witness what he wanted with the pistol, nor say anything more to him at the time than that he was going to Caddo Mills. The witness’s pistol (the one in evidence) was returned to the witness after the death of Anna Smith by the district attorney. That pistol was not a self-cocking pistol, and was hard to cock and very heavy on the trigger.</p> <p>Eli Maloney testified, for the State, that he lived near Payne’s store, and served as one of the jury of inquest which sat upon the body of Anna Smith. Witness, taking several ladies with him in a wagon, reached the scene of the tragedy between eight and nine o’clock. He went first to the tree under which it was said the deceased was sitting when last seen alive by Mathews and Miss Vansickle. On the west side of that tree, and extending from it, the witness saw the imprint of cloth or clothing, the track of a man and a woman, and some scratches in the sand. He then went to the body, which he examined critically. He saw a bullet hole.through the left breast, and a small bruise on the inside of each thigh a little above the knee, and a third one higher up on one of the legs. The bruises extended two and a half or three inches up and down the leg, and were deeper in some places than in others. He also saw a bruise as large as a silver dollar on one of her shins. Witness could not tell whether those bruises were old or fresh. At the inquest, the witness and Doctor Howell took the clothing off the body, and witness examined the said clothing carefully, but observed nothing unusual about any of it. Witness saw a strand of rope, with a loop in one end, lying in the road ten or twelve feet from the body. There was a slip knot in the rope about eight inches from the loop. The loop was large enough to admit the passage of a man’s fist. Witness observed no bruises about the neck or arms of the deceased. On his cross examination the witness said that a number of men and’women were at the body when he arrived. They were walking from the body to the branch on tíoth sides of the road, hunting for evidence. Ho blood was discovered by the searchers that the witness heard of. Witness saw no blood on the girl’s outer clothing, and but little on the under clothing, and the most of that was at the entrance of the wound. When the witness arrived upon the ground Mr. Powell was standing at the tree, and appeared to be guarding its approaches to prevent examiners from obliterating the impression at the roots.</p> <p>0. J. Stegar testified, for the State, that he was a member of the jury of inquest over Anna Smith’s body, and made a careful examination of the body and ground. The tree referred to by the previous witnesses as the one under which the girl was seen sitting by Mathews and Miss Vansickle was really two trees standing close together, connected by a root. On the sand banked up at the foot of these trees, the witness saw the impression of clothing which indicated that some person had either been sitting or lying there. Further out from the tree the witness saw the impression of the heels and toes of a shoe or boot. The toe impressions were nearer together than the heel impressions, and extended further out from the tree. There was a a bruise on each of the thighs, which looked fresh to the witness, and which from the size and shape he thought were made by finger nails. Witness saw no bruise on either the neck or arms. He saw a small braise on the right fore huger. Mr. Powell had a rope in his hand at the inquest, which had two loops in it, and a stain of some kind on it. On his cross examination this witness stated that he examined the ground on both sides of the road from the point where the body lay .to the branch, but made no other discoveries than those he had mentioned. He could not trail the woman’s track from the trees. Witness could readily tell the difference between the impression made on sand by a woman’s dress and that made by anything else. His knowledge in this respect was based upon experiment. The impression in this case showed from the legs to the back, toward the trée. Witness could tell the difference between the impression of a toe and heel. If a person lies down and braces with the heel, 'the heel will sink into, and the toe will scrape, the ground. The impressions observed by witness were not over three and a half hours old. There was a considerable difference between a track and impression two and a half and one six hours old. The tracks described by the witness were nearly in the edge of the road. Witness had often bruised his own person, and knew that such bruises, when fresh, were of a blue color, and turned black when grown older. He did not know how such bruises would be affected by death.</p> <p>W. W. Adams, another member of the coroner’s jury, testified, for the State, that when he reached the body there was no one there but the Powells and the defendant. The body lay in the road, about one hundred yards south of a certain tree which stood on the road side near a branch. An impression at the foot of that tree showed that some person had recently sat there. The tracks of two different persons, being of different sizes, showed around the tree. The witness saw two bruises on the girl’s legs, which appeared to have been made by pinching. There was ' another small bruise on the right forefinger. When the witness arrived upon the scene the defendant was talking, weeping, moaning and “taking on” greatly. He told witness that Anna Smith had shot and killed herself; that, while he was hitching his horses to his buggy she snatched his pistol from his hip pocket and shot herself; that he then took the pistol from her and shot himself, intending to kill himself, but that his nerve failed him; that he would be accused of the mfirder of the girl, but was innocent, and would give five hundred dollars, one thousand dollars, or the world, if he could but recall his last six ¡hours. He said also that the last words Anna Smith said to him. 'were “ Henry, don’t do that,” but did not tell witness what it was the girl told him not to do. On his cross examination the witness said that he examined both sides of the road from the body to the branch, but discovered no impressions other than those at the foot of the tree. There was but little blood on the underclothing. The girl, when killed, had on a black velvet sacque, a corset under the sacque, and a chemise under the corset. Her skirt was of white material. There was no blood on the skirt. The bruised places mentioned by the witness were discolorations of the skin, about the size of a finger nail. Both the clothing and the flesh of the deceased at the entrance of the wound were powder burned. The powder burn on the skin extended from the wound to the shoulder. The black velvet sacque showed the scorch or powder burn but little, but the underclothing showed it considerably. When the witness reached the body the defendant was lying down by the side of it, with his arm under the head, and was weeping and wailing like one who had lost a near relative. He appeared to be in sore grief. Defendant remained on the ground until he was arrested. Witness saw the pistol with which it was said Anna Smith was killed. It was a very large weapon.</p> <p>W. B. Horton testified, for the State, that he was the constable of Greenville precinct in Hunt county, and as such officer, he attended the coroner’s inquest upon the dead body of Arma. Smith. While that inquest was in progress, the witness observed a bruise on the back of the deceased’s neck, and also the bruises described by the previous witnesses. The bruise on the neck was about three inches long, and was about as wide as a man’s finger. On his cross examination, the witness said that he left Greenville about eight o’clock in the morning, and reached Payne’s store, sixteen miles distant, at about eleven o’clock. He saw the defendant’s buggy at the store, and examined it, but found no blood on it, nor on the cushions. Deputy Sheriff Chaffin took defendant to Greenville in that buggy. Witness saw Will Shamburger’s' wife at the inquest.</p> <p>Deputy Sheriff A. B. Chaffin testified, for the State, that he brought the defendant to Greenville in the buggy that defendant was said to have used during the night before. If there was any blood on that buggy or on the cushions, witness did not see it. Witness saw the body at the inquest and observed the bruises described by the witness Horton.</p> <p>Miss Ada Minchen testified, for the State, that at one time she was engaged to marry the defendant, but was not engaged to him at the time of the tragedy. She formed the acquaintance of the defendant in 1876, and for three years thereafter he visited her regularly, and since that time he had waited upon her periodically. Witness had often gone out under the escort of the defendant. His conduct towards her, and towards all other ladies, so far as she was advised, had always been exemplary.</p> <p>George Jones testified, for the State, that he did not attend the inquest over the body of Anna Smith. He went to the place of the tragedy after the arrest of defendant, and took charge of the defendant under the order of the magistrate. Witness took the defendant to the tree described by previous witnesses and there saw the imprint of the clothing so often described. He also observed what he took to be the imprint of stockinged legs. About five feet from the root of the tree he saw what he took to be the impressions of toes or heels. On his cross examination, the witness said that he reached the ground about ten o’clock. He could not say what kind of cloth or clothing made the impression he described. ■ What he took to be the imprints of stockinged legs were about two and a half feet apart, and ran with the course of the cloth print. They were about a foot and a half long. They did not turn out or widen at the lower end. Witness could not tell whether the other impressions he saw were of heels or toes, nor where the rest of the feet came to. The heel or toe prints were near the end of the impression made by the stockinged legs.</p> <p>J. P. Powell testified that he heard four shots which were fired in rapid succession, at about daylight. He did not think a person could count more than two between the first and second shots. When he reached the body, word having been sent him by the mail carrier, he found his brother, J. E. Powell, the man Williams and one or two other persons on the ground. Defendant was then lying down by the body, in evident great distress.</p> <p>A. E. Waldron testified, for the State, that he attended the ball at Eoberts Station,' 'on the night of July 1, 1885, and saw the defendant and the deceased there. Defendant appeared to be ill at ease, as though he had something on his mind. The deceased appeared cheerful and happy.</p> <p>On his cross examination, the witness said that he saw at the ball, besides the defendant and Miss Smith, Governor O. M. Eoberts, Perry McBride, Doctor Mings, Miss Mathews, Miss Van-sickle and others. When witness first observed the defendant on that night, he was talking to Mr. Mathews. He had previously seen the defendant, but had no acquaintance with him. He did not see the defendant and deceased promenading together on that night. Witness now lived in Detroit, Michigan, but, at .the time of the tragedy lived at Eoberts Station, in Hunt county, Texas.</p> <p>A. Cameron testified, for the State, that, on the evening before the death of Anna Smith, he stepped from the street into the Hunt county bank, of which, until recently before that evening, he had been cashier, and saw the defendant in front of • the cashier’s 'desk. The defendant was then in the act of placing a considerable roll of money in his pocket. The roll was of the size of a man’s wrist. Defendant then lived south of Greenville, and owned a farm and gin. He did considerable business with the bank during the time that witness was cashier, and witness often paid him large sums of money. He often bought and paid for machinery. Ho ginning was being done in Hunt county in July, 1885.</p> <p>At this point the State introduced in evidence the order of the district court of Hunt county, changing the venue of this cause to Kaufman county, which said order recites that, because of prejudice against the defendant in Hunt county and combination of influential citizens against him; he could not get a fair trial.</p> <p>The State then closed.</p> <p>Mrs. Isaac Smith, the mother of the deceased, was the first witness introduced by the defense. She testified, in substance, that the deceased left home on the Saturday preceding her death. Witness saw her again on the following Wednesday, when she came to the house in a buggy with Miss Lou Vansickle, going to Greenville. She said that she would come back and get her clothing, which she did. The deceased and her father had quarreled before that time. Deceased disobeyed some direction given her, and her father threatened to whip her, and finally did whip her. She had just returned home drunk from Caddo Mills, and her father was also under the influence of whisky. Witness and her family moved to Hunt county in the fall of 1884. She had never known the deceased to drink before coming to Hunt county. The whipping of the deceased by her father occurred a short time before the death of the former. During the quarrel which preceded the whipping, the witness sent for Mr. Johnson to come to the house and stop the row. On one occasion, at night, the witness missed the deceased from her room, and when she returned to the house witness took her to task about it. Prior to her death, the deceased kept company with Mr. Grimes, Mr. Daggett, Mr. Johnson, Allen Smith, Mark Hale and the Lee boys. She often attended parties and other social gatherings. A letter (which will appear in a subsequent portion of this statement) was written by the deceased on the fly leaf of a book, on ' the Monday morning, before the tragedy, just before she left home.</p> <p>Cross examined, the witness stated that the deceased formed the acquaintance of the defendant in the spring of 1885, when she lived at Mrs. Johnson’s. The objections urged by witness and her husband to her association with the defendant caused the trouble between deceased and her home people. On one evening the defendant called to take the deceased to a school exhibition at Caddo. Upon his promise to bring her back before sundown, her father consented, and deceased and defendant went off. The deceased did not come home until the next evening, when she was very drunk. She and her father had a row. Witness objected to deceased’s association with defendant because he gave her whisky. Deceased had always before taken a drink whenever she wanted it, but witness had never known or heard of her being drunk until she went to Caddo with defendant. Deceased was about seventeen years old, was obstinate and hard headed and not easily controlled. When she wrote the letter referred to’by witness, she said that she was going to leave home.</p> <p>At this point the defense introduced in evidence the letter referred to by the witness. It reads as follows:</p> <p>“Good-bye to the family. Forget, but I will not ask you to forgive. I have disgraced you, but I will never more impose myself upon you. Jim, I am no one to give advice, but do as you are doing now, and let no one have influence over you. Belle, do just the opposite of what your disgraceful sister has done, and the world will honor you. Beula, mind Ma, and be a good girl. Ma, I am sorry it is so I have to leave you, but it is too late to repent now. Pa, never spoil another one of your children by giving them too much rope. For your soul’s sake, and for the sake of a family who look to you for support, quit the damnable cup. It has ruined you and me. And now forget that I ever existed. To those who once were friends of mine, I ask them to think of me only when I was good. How farewell, for time eternal! Anua.”</p> <p>Bose McFarland testified, for the defense, that he lived in Fannin county, and knew the Smith family when they lived in that county. He knew the deceased from the time she was large enough to go to school until she removed with her father’s family to Hunt county. Deceased was a lively girl, and very full of fun, but never drank intoxicants, so far as the witness knew. Witness saw her at a protracted meeting in Fannin county one night not long before her family moved off, and talked with her for a few minutes. She was exceedingly lively and talkative on that occasion, but if she Bad taken a drink, witness did not detect it. SBe walked Borne witB CBarley Briggs on that night, and en route hallooed to several of the boys passing along the road. , Deceased’s father was then a very poor man.</p> <p>Jeff Johnson testified, that he knew the deceased for nine years before her death, but saw little of her from her childhood until she moved to Hunt county in the fall of 1884. Witness’s brother married a cousin of the deceased. Deceased’s father lived about three hundred yards from witness’s hou.se in Hunt county. About June 1, 1885, deceased’s sister came to witness and his brother, and asked them to go to the house of the deceased’s father and stop a quarrel that was then in progress between deceased and her father. When witness reached Smith’s house he found deceased on the bed, and her father on her, holding her hands—they were both drunk and cursing each other. It seemed that deceased had left home without consent and that old man Smith had attempted to whip her. He told her that she had either to leave his house or obey him, and that unless she would do his bidding she could not stay under his roof, and must hunt another home. She replied that she would do so or play “Jim Fisk.” Witness and others dragged old man Smith off the girl and into the yard. They made repeated efforts to get at one another and cursed each other violently. Deceased said that the old man got the advantage of her by taking her weapons. Witness saw deceased drink whisky several times, but never saw her under the influence of whisky but the one time mentioned. Her reputation for chastity was bad, and to witness’s knowledge had been bad since Christmas, 1884. Witness heard, as early as the said Christmas, that she was criminally intimate with men, and since that time had heard that she had maintained illicit relations with the defendant.</p> <p>J. W. Hulsey, justice of the peace of the Caddo Mills precinct of Hunt county, testified, for the defense, that the father of the deceased and he were cousins. Witness lived within half mile of Smith in 1885. • He knew that, at the time of Anna Smith’s death, or for some three or four months prior thereto, Anna’s' reputation for chastity was bad. Witness never heard of her maintaining illicit relations with men until she got to going with defendant. She was soon after said to serve other men. Witness had heard that she was kept by defendant, and had also heard that she was kept by Ike Lee.</p> <p>° Thomas Murphy testified, for the defense, that prior to the tragedy he lived within a mile and half of the deceased. The reputation of the deceased for chastity was bad for several months before her death. It was generally reported throughout the neighborhood that she maintained carnal relations with Ike Lee and Mack Hale. Witness saw her at a pic nic with Mack Hale in the spring of 1885. They arrived at about twelve o’clock, got some lemonade, and immediately left in a buggy. Anna’s clothing was then rumpled, and had fresh dirt on it. Defendant’s reputation had always been that of an honest, peaceable, law-abiding citizen. On cross examination the witness said that he first saw the defendant and Anna Smith together at a party at Browning’s, in Greenville. Defendant and the girl were then reputed to be too intimate. Defendant was regarded in Green-ville as a man responsible on his word. He was good for his debts, and good on notes in bank. Witness never heard of def endant bothering virtuous women. With respect to lewd women he stood on a par with other young men. Other men were reported to have maintained illicit relations with Anna Smith before defendant’s name was coupled with hers.</p> <p>W. S. Grimes testified, for the defense, that he first met the defendant at Jim Johnson’s house—whose wife was a cousin to-the deceased—in October, 1884. The deceased was a fast, lively girl. Witness had often seen her drunk, and had seen her under the influence of whisky, but personally knew nothing criminal about her. He met deceased and her father at Mr. Lee’s house in the spring of 1885. The parties present, including deceased and her father, drank distilled alcohol. Deceased took two drinks. Her father took several drinks and made deceased sing for the crowd. Deceased’s reputation for chastity was bad. On Christmas night, 1884, at a party at Jim Johnson’s house, witness saw deceased and Ike Lee lounging together on a single bed. She spent one night in February, 1885, at Jim Johnson’s house, in the absence of Johnson’s wife. She and Johnson occupied the same room, in which, however, there were two beds. Witness went to Smith’s house on the night of the row between deceased and her father, testified to by Johnson. Deceased was in her night clothes on the bed. She and her father, who was dressed, had hold of each other, and were cursing each other. Her father was pulled off the deceased and dragged into the yard. Deceased’s evil reputation for chastity dated back to Christmas, 1884. Her name, in that connection, was coupled with those of Ike Lee and Mack Hale, and with others, before it was coupled with the defendant’s.</p> <p>Cross examined, the witness stated that he would not undertake to say that deceased and Johnson slept in the same bed on the night in February, 1885, that deceased stayed at Johnson’s house, but they did occupy the same room on that night. Defendant went with all the ladies in his neighborhood during the time that his name was coupled with that of deceased. His reputation was “that he liked women.” Witness kne.w that defendant “kept” deceased when she was in Greenville. In this connection witness mentioned the names of a dozen or more good and virtuous young ladies upon whom defendant waited during the time that he was reputed to maintain criminal relations with the deceased. He associated with a great many poor and virtuous young ladies. On the night of the row between deceased and her father, the deceased told her father, when he said something about her leaving home, that she would leave and play “Jim Fisk at Long Branch.” Witness had often heard her sing the Jim Fisk song to the young men.</p> <p>Doctor Kays testified, for the defense, that he twice had the deceased under his professional care, once in the fall of 1884 and once in the spring of 1885. He smelled whisky on deceased’s breath on his first visit in 1884. Her malady on the second occasion arose from excessive use of alcoholic liquors. At times, on both occasions, she was wild and frantic, would “ cut up ” generally and stand on her head. Then her system would relax and she would grow- morose and apparently desperate, and would appear to suffer greatly from melancholia. The witness did not examine the body of the deceased, but he did not think that the bruises on her legs could have been made less than twelve hours before her death, judging from the color ascribed to them by other witnesses. This was not the witness’s professional but his individual opinion. Witness could not say that whisky alone produced the deceased’s condition when he first called to see her in 1884. She was suffering from the effects of intoxicants and other causes.</p> <p>Robert R. Skinner testified, for the defense, that he attended the ball at Roberts Station on the night of July 1, 1885, and saw ■deceased, defendant, Mathews, Miss Vansickle, Governor O. M. Roberts, Perry McBride and others among the guests. Deceased appeared to be very despondent on that night. Witness danced one set with her and afterward took a promenade with her. During that promenade the deceased told witness that her father had beaten her and her family had driven her from home; that she had nothing to live for and had no desire to live longer. Witness remarked that her talk was nonsense. She replied that she would “as soon kill herself as not,” and that she had tried once "and failed. Defendant appeared to be in his usual spirits on that night.</p> <p>Allen Smith testified, for the defense, in substance, that he knew Anna Smith well. She was very fast, permitted the boys to take any liberties with her, such as fondling her person, and ■had a bad reputation for virtue long before defendant became acquainted with her. Witness went with deceased a great deal, and had often heard her say that she had nothing to live for, and had as soon take her own life as not. Witness was very intimate with defendant. Defendant once told witness that he was keeping deceased, and that, as she was hard to get along with, or to get rid of, he expected to have trouble with her.</p> <p>Hansel Mathews, recalled by the defense, testified that, almost daily, for a long -time after the tragedy, he used the buggy used by defendant and Anna Smith on the fatal ride, and never saw any blood on the cushion or any other part of the said buggy. A short time before leaving Roberts Station, on the fatal night, witness and defendant discovered that some boys had taken their buggies off. Witness went into the ball room for the girls, and when he came back he found that defendant’s buggy had been brought back, but that his had not. He found the defendant with an old rope in his hand, which the witness had thrown into' the buggy to be used as a hitch rein. Defendant had tied one end of that rope around the axle of his buggy, and was tying the other end to the shaft of an old sulkey standing near. He laughingly remarked that he had no intention of leaving the witness and Miss Yansickle at the station, and that he was fixing a- rig in which to take witness home. About that time witness’s buggy was returned, and defendant threw the piece of rope into the box of his buggy. That was the piece of rope found on the scene of the tragedy.</p> <p>Miss Lou Yansickle was next introduced by the defense. She testified substantially as she did on the habeas corpus trial of the defendant. Her testimony on that trial will be found in detail in the nineteenth volume of these reports, commencing on page 572. She stated, in addition, that, after her return to the place of the tragedy, and before the body was removed, she drove to-Mrs. William Shamburger’s house in the buggy used over night by defendant and deceased, and brought Mrs. Shamburger to Payne’s store. She knew then that there was no blood on the buggy or the cushion. She also corroborated Mathews as to the incident of the rope, buggy and sulkey at Roberts Station, just before the party started home.</p> <p>Mrs. Surella Shamburger’s testimony, on the defendant’s habeas corpus trial, will be found on page 577 of the nineteenth volume of these Reports. She testified on this trial substantially as she did on that, and, in addition, that she rode from home to Payne’s store on the day of the tragedy, in a buggy said to have been the one used the night before by defendant and deceased. She saw ' no blood on that buggy.</p> <p>Several witnesses testified that the reputation of the deceased for chastity was bad before she became acquainted with the defendant; and a dozen or more supported the reputation of the defendant as a peaceable, quiet and law abiding citizen.</p> <p>The defense closed.</p> <p>Miles Vansickle was the first witness called by the State in rebuttal. By referring to the testimony of Miss Vansickle, on the defendant’s habeas corpus trial, it will be seen that she then testified that, on a trip taken by her, deceased and defendant, at night, some time prior to the tragedy, the deceased got out of the buggy a short distance from a branch or creek, and went alone to the creek; that, a few minutes later, a splash in the water was heard, when the defendant went to the branch, leaving her, Miss Vansickle, sitting in the buggy; that, after remaining in the creek bottom for some time, defendant and deceased returned to the buggy, and the deceased was wet from head to foot. Referring to this testimony of Miss Vansickle, her father testified that he saw deceased when she returned to his house on the night referred to by his daughter, but that he saw no wet garments" on her. At the time referred to by witness and his daughter, there was not enough water in the creek to immerse a person. Several witnesses for the defense having testified that, although he sometimes took a drink, the defendant was a temperate man, this witness testified that he knew the defendant to be a drinking man, but knew many men who drank more than he did.</p> <p>Ike Lee testified, for the State, in rebuttal, that he knew the deceased all of her life. He had never heard her reputation for chastity called in question until she began to associate with defendant. Defendant was reputed to be a man who drank sometimes.</p> <p>James Johnson testified, for the State, in rebuttal, that he had never paid any particular attention to the deceased or to the rumors affecting her character. He heard, about Christmas, 1884, that she was too intimate with Ike Lee and Mack Hale. She formed defendant’s acquaintance in February, 1885. Defendant was reputed to be a man who drank too much sometimes, and who was very fond of women.</p> <p>Miss Belle Smith, sister of the deceased, testified that she saw the deceased write the letter in evidence. Deceased wrote it on Monday morning before leaving home, and told witness she was writing it because she was going to leave home.</p>

Tried below before the Hon. D. H. Scott on exchange. The conviction in this case was had under an indictment which charged the appellant with swindling, by converting to his own use certain funds belonging to the estate of. the minors Thomas A. and Etna M. Touchton, of which estate he was the guardian. The penalty assessed was, a term of two years in the penitentiary. H. Hulen was the first witness for the State.

<p>Appeal from the District Court of Falls. Tried below before the Hon. Eugene Williams.</p> <p>The conviction was for horse theft, and the penalty assessed was a term of five years in the penitentiary.</p> <p>Bob Hineman, the first witness sworn for the State, testified that he was the son of S. Hineman, and lived at Blue Ridge, in Falls county, Texas, about four miles distant from the house of the defendant. Mr. .William Nance, the owner of the alleged stolen animal, lived with the witness. S. Hineman, the witness’s father, owned a gray mare and a' gray gelding, whose range, when at large, was , on and across the little Brazos, in Falls county, Texas, covering á distance of three or four miles from the residence of the witness. William Nance had a sorrel horse which ran with S. Hineman’s two horses. The horses thus described were taken from their said accustomed range on or about June 19, 1886. The Hineman mare had a bell on when she disappeared. On the twenty-second day of June a man named Popenjoy found the bell and brought it home. The gray mare was a very large animal, fully sixteen and a half hands high. Witness and John Walker commenced the search for the said animals on the twenty-third day of June. They went first to Marlin, in Falls county, and thence to the Brazos, and thence, upon information there obtained, they went to Gatesville, in Coryell county, and thence through Hamilton county to Brady City, in McCulloch county, at which latter place they found the defendant and one Homer Smith in jail.</p> <p>Witness found the gray mare in Brady City, at which place he also found the dead body of the sorrel horse mentioned in this indictment. He got the gray horse in Hamilton county. Witness and Walker, having a warrant for the defendant, received him and the gray mare from the sheriff of McCulloch county. They returned at once to Falls county, where they placed the defendant in jail. At the same time, witness and Walker brought back with them a small gray filly, branded TG, which they turned over to the defendant’s father. Witness and Walker followed the defendant upon information received at Marlin, and at the various points through which they passed. The animals described by witness, and which were recovered in Hamilton and McCulloch counties, belonged to witness’s father, and the sorrel horse which they found dead in McCulloch county belonged to William Nance. They were gentle work stock, and had been turned on the range after the harvest of the crop. It was about seventy-five miles from the witness’s father’s in Falls county to Gatesville, in Coryell county.</p> <p>Before starting to Gatesville witness got process for the arrest of defendant and Homer Smith, from Justice Boyles, of the Reagan precinct, the same being issued upon affidavits filed by the owners of the stolen stock, and witness was specially deputized to arrest the defendant and Smith. When recovered, the gray animals were very much jaded from hard riding. The Nance horse lost his hoofs, and at last his life, from the hard riding.</p> <p>. James Lanham testified, for the State, that he was the sheriff of Coryell county. On the twentieth or twenty-first day of June, 1886, witness was in the town of Gatesville, when he was called upon by a banker to examine some horses which were being offered for sale. Witness and constable Hammack went to a point near a livery stable where the defendant had his horses. He then for the first time saw the defendant to know him. Defendant then had in his possession a gray gelding worth about seventy-five dollars, which he was offering to sell for sixty dollars, and a small gray or roan filly, worth about twenty-five, which he was offering to sell for sixteen dollars. Witness’s purpose in going to the livery stable was to question the defendant, examine the horses, and ascertain if he could, whether or not the defendant was a horse thief, and whether or not the horses were-stolen animals. Ho person was with the defendant when witness saw him in possession of the horses in Gatesville. Accordingly he questioned defendant closely. Defendant said that he came from some one of the lower counties, other than Falls, and that he was going to his uncle’s in Hamilton county, and was taking the horses with him. He was riding the gray gelding, and was leading the little filly which was branded TG. The witness reached the conclusion that there was nothing crooked about defendant, and did not molest him. The horses had the appearance of having been ridden hard. Defendant was “sharp” enough to deceive the witness; he talked well, and did not im press the witness as a dull boy. Witness saw no indications of a disordered mind in his interview with the defendant. Defendant appeared to be about seventeen years old. A few days after the interview with defendant, Bob Hineman and John Walker passed through Gatesville in pursuit of defendant and the horses, and witness gave them such information as he could. During the interview with witness, defendant said that he got the gray gelding at Coryell City. That animal was branded 9S.</p> <p>Constable Hammack testified, for the State, substantially as did Sheriff Lanham, and in addition that the. defendant gave the name of his alleged uncle who, he said, lived in Hamilton county, and to whose house he was then going. Witness could not remember the name, but had lived in Hamilton county himself for a long time prior to to his interview with the defendant, and had never known a man of the name given by defendant. A few days after defendant left, Bob Hineman and John Walker passed through Gatesville in pursuit of defendant and the horses. A few days later they passed through Gatesville on their return to Falls county, having in custody the defendant and one Homer Smith, whom witness had never seen before, and the horses which defendant had in his possession in Gatesville. The witness discovered nothing in the conduct, talk or deportment of the defendant, while talking to Sheriff Lanham, indicating that his mind was in the least disordered. He impressed the witness as being the reverse of a dull boy.</p> <p>S. Hineman testified, for the State, that his gray mare and gray gelding, and Hance’s sorrel horse, ranged together on Willow creek, near the Little Brazos river, in Falls county, for some time, and until about June 19, 1886, when they disappeared together. The witness’s gray mare was branded CT, and his gray gelding 9S. All of the animals were farm work stock, and when taken had but recently been turned on the range. Those horses had often been turned on that range, but always came up until that time. Bob Hineman and John Walker went in pursuit of the horses soon after they disappeared, and got back with the witness’s gelding and mare about July 1, 1886. They also brought back with them the defendant and one Homer Smith, who was a stranger to the witness. Witness had never consented to the taking'or using of his said stock by the defendant, Homer Smith, or any other person.</p> <p>William Manee was the next witness for the State. He testified that he was the owner of the sorrel gelding mentioned in the indictment, and described by the previous witnesses. Witness’s said animal was on his accustomed range, running with old man Hineman’s work horses, on June 19, 1886, on which said day he disappeared. The said horse was branded MEP on the left hip and AT on the shoulder. Old man Hineman’s gray mare and gray gelding disappeared from the range at the same time. Witness never recovered his said animal, which was taken by some person without the knowledge or consent of the witness.</p> <p>John Walker was the next witness for the State. He testified that, a little after dusk on the evening of June 19, 1886, at a point on the read near Reagan, and between four and five miles from Mr. Hineman’s house, he met the defendant and another man. They had several horses with them, and among them he thought he recognized old man Hineman’s gray mare. The thought struck him that the animals were all mares being taken to Webb’s jack. He thought no more of the matter until he was told that horses had been missed from the neighborhood. Witness went with Bob Hineman in pursuit of defendant and the horses, and in his testimony he corroborated in detail the narrative of the said Hineman.</p> <p>On his cross examination, this witness was asked by the defendant’s counsel if Homer Smith had been tried for complicity in this offense. He answered that Homer Smith had been arraigned, and had pleaded guilty to the indictment charging him with this same theft. On re-examination, the prosecuting counsel directed the witness to repeat what was said by Smith when he pleaded guilty. Over the defendant’s objection, and by direction of the court, the witness did as directed, and said that Homer Smith, when he entered his plea of guilty, said that he and the defendant took the horses, but that he (Smith) was hired by Tom Gentry, the defendant’s father, to take them, and that at the time of the taking it was understood that the said Tom Gentry and one Bohannon were to follow with another bunch of horses. This is the evidence which constitutes the subject matter of the ruling of this court On this appeal.</p> <p>Frank Myers testified, for the State, that he lived near the town of Reagan, in Falls county, Texas. On the nineteenth day of June, 1886, he had occasion to pass the old Currie horse pen, and observed, among a number of horses penned therein, the gray mare and gray gelding <of Mr. S. Hineman. He saw no parties at the pen; but near a water hole, a mile and a half beyond the pen, he saw two men, whom, because of their distance from him, he did not recognize. He saw and recognized at the water hole a certain little gray filly that belonged to the defendant. She was saddled. The water hole and the place where the men were, were not in sight of the horse pen. Ho one lived at the pen, nor nearer the pen than a half a mile. Defendant’s father lived about a mile from the pen. The said pen was about three miles distant from S. Hineman’s house.</p> <p>H. C. Bohannon testified, for the State, that Homer Smith lived at his house for a month prior to the nineteenth day of June,' 1886. Witness left home on the morning of the said June 19, and returned on the evening of the twentieth. Smith was then gone, and witness discovered that several small articles of personal property belonging to him, witness, had disappeared from the house. Smith was the only person the witness left at his house on the morning of the said June 19. Just before the witness left, the defendant came by the house and said that he was going to Bremond. He came to the house alone and left the house alone, going towards Bremond. Defendant and Homer Smith were then intimate associates. The house occupied by witness, and in which Smith lived with him, was on the place of Tom Gentry, the father of the defendant, and was situated a few hundred yards distant from the house occupied by the said Tom Gentry. Smith was a stranger to the neighborhood, was a hired hand of the witness, and until hired by witness, about a month before the alleged theft, had been at work on the railroad. He was about twenty-eight years old. Defendant disappeared, about the same time that Smith disappeared, and witness did not see him again until after he was arrested and brought back to Falls county and placed in jail.</p> <p>The State rested.</p> <p>By agreement, the defense read in evidence the written statement of F. M. Miller, sheriff of McCulloch county, as follows: ■“I am now, and have been for six years next before this date, sheriff of McCulloch county. About July 1, 1886, in the town of Brady, in said county, I, as such sheriff, took into my custody a boy who gave his name as Sam Gentry. He was riding a gray or white mare, about sixteen hands high, which mare was afterwards claimed by one Hineman, a stranger to me, and delivered to him. Sam Gentry had also in his possession at the time I arrested him a dark brown or black pony. I arrested Sam Gentry on suspicion, without any warrant or writ. After I arrested him, he stated that he came from Falls county in company with a man whom he called Smith, or Homer Smith, and "that he, Gentry, was going to his uncle’s, I think, in Beeves county. He said that Smith was going to Mexico. He said that he left his father’s place in company with Smith, who said he' would take him to his uncle’s. Sam said he rode his own pony until it gave out, when Smith loaned him the gray mare he was riding. He said that Smith had gone on, leaving him to complete an exchange of horses which had been agreed upon with some one in Brady. Upon this information communicated by Sam, I sent two deputies in pursuit of Smith, whom they captured next morning and brought back to Brady. I delivered Smith, Gentry and the horses to Hineman and the man who was with him, they promising to take him to Marlin. Before and after Smith was brought back to Brady, Gentry asked me not to put him and Smith together; that he was afraid of Smith, and feared Smith would hurt him. Sam Gentry told me where his father lived, and I wrote to him. He also told me that Hineman was the owner of the gray mare, and that Smith loaned her to him to ride after his pony gave out. The above conversations with Sam Gentry, in which he explained his possession of the animals, were had while Gentry was in jail and about three cr four hours after he was arrested. He sent for witness to come to the jail, and made the above statements. He made no statement when first arrested.”</p> <p>H. W. Black, the next witness for the defense, testified, in substance, that he had known the defendant for many years. "Witness was a school teacher. Defendant went to school to him about two months in 1885. Witness boarded about a year in the family of the defendant’s father, and saw the defendant daily during that time. He learned, by observation, some of the peculiarities of the defendant’s mind. Witness would compare the defendant’s mind to a stationary vessel of water that would move on when moved and then only as moved. Defendant appeared to have no independent mind or thought of his own, but moved and acted as influenced by others. His prevailing habit in school was to sit for hours with his head bowed down to his knees. When admonished by witness, he would straighten up and gaze at his book, but would soon lapse into his previous state of absent mindedness. Witness labored diligently to teach defendant, but could teach him little or nothing. He could spell, and read a little when he first came to school, and witness put him in arithmetic, but could never get him through the multiplication table. He rarely, either at home or on the play ground, spoke unless he was spoken to, and would do nothing at all until directed by some one. He was an obedient and good boy, confiding and trusting implicitly in those to whom he was attached, and would believe any miraculous story that was told him. The witness, judging the defendant’s mental calibre from personal knowledge of him, was of opinion that, when acting under the influence of those in whom he had confidence, the defendant was mentally incapable of knowing right from wrong. The meaning of the witness was that, if a person in whom the defendant had confidence should direct him to commit a particular crime, the defendant, in committing it, would be moved solely by the direction of the person, without knowing or appreciating the nature of the act. Witness thought that he could direct the defendant to steal an article, and that he would steal it in the confidence that he was doing an innocent act, and that it would never enter his mind that the theft was morally or legally wrong. The witness did not believe that defendant, if let alone, and not influenced by another person, would steal or do any other wrong. Dree from the influence of others, the defendant doubtless knew right from wrong. He would feed stock, do chores and work when directed, and would do his work slowly but well. He was about seventeen years old, but did not have the mental capacity of an ordinary boy ten years old.</p> <p>On his cross examination, this witness said that defendant attended a school in Bremond before he became a pupil of his. He rode to the school in Bremond, which was several miles from his home, alone. He used in the witness’s school the same books he used in the Bremond school. A rule the witness always observed as a teacher was never to put a pupil in arithmetic until such pupil could read and spell well. He put the defendant in arithmetic soon after he entered witness’s school, but never succeeded in teaching him the multiplication table. Defendant was a very good farm hand.0 If he ever chopped up or destroyed the orop in working it, witness did not know. it. Witness thought that, uninfluenced, defendant would regard it wrong to steal, but witness thought that, having much influence over defendant, he could get defendant to steal by merely directing him to do it, and that defendant would not regard such theft as either a moral or a legal wrong. This, however, was merely speculation on the part of the witness, who had never attempted to get him to steal. Witness had a high, friendly esteem for the defendant and his father:</p> <p>William Wyatt testified, for the defense, that he had known the defendant intimately for several years. About seven years before this trial, the witness drove his stock from Falls county to western Texas. Defendant and his father went with witness, and remained with witness, working the stock for three or four years, when witness sold out, and returned to Falls county. Defendant had been back to Falls county about two years. Witness ■described the mental peculiarities of the defendant substantially as they were described by the witness Black. It was the opinion of the witness that, when swayed by the influence of a person in whom he had confidence, the defendant was totally incapable of distinguishing right from wrong with regard to any particular matter. By way of example, the witness would say, presupposing that he had the defendant’s confidence, that if he were to tell defendant to steal a particular article, and sell it for his, witness’s, benefit, the defendant, without a conscious thought of doing an illegal or immoral act, would do as directed. Such influence, however, was exercised over defendant only by those in whom he had confidence. Independent of the influence of others, the defendant knew that theft was a moral and legal crime. Defendant would work well when told, but would do nothing unless told to do it. - On his cross examination the witness said, in answer to a question, that he meant to convey the idea that, in •doing wrong under the direction of some other person, the defendant would not expect to be punished. On re-examination he said that he meant that, acting under the influence of another person, the defendant did not know the right from the wrong of a given act. The defense witnesses John Perry, William Alston and Tom Gentry, the father of the defendant, testified substantially as did the witnesses Black and Wyatt as to the defendant’s mental peculiarities. They concurred in the opinion that, acting independent of any other influence, the defendant knew right from wrong, but when acting under the influence of another person he did not know á moral or legal from an immoral or illegal act. Tom Gentry further testified that the defendant was seventeen years old, and that he, defendant, owned the small TG filly brought back by Hineman and Walker from McCulloch county. When witness learned that defendant and Smith, and Hineman’s and Nance’s horses had disappeared, he started out to hunt defendant and Smith, and the said horses, going first to Navarro county, from which county Smith claimed to have come to Falls county, and to which county he said, shortly before he disappeared, he was going to return.</p> <p>The defense closed.</p> <p>John Walker testified, for the State, in rebuttal, that he had known defendant for many years. He knew defendant to be a good field and stock hand, and that he often worked in the field and with stock when there was no other person about to direct him. From what witness knew of defendant, he was satisfied that defendant knew right from wrong, and that he knew it was wrong, 'morally and legally, to steal. '</p> <p>William Nance, Henry Bohannon and Bob Hineman, testifying for the State, in rebuttal, corroborated the testimony of the witness John Walker, in rebuttal, and expressed the same estimate of the defendant’s mental calibre..</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

<p>Theft—Practice—Ownership—Evidence—Charge of the Court.— It devolves upon the State, in a prosecution for theft, to prove the name of the owner of the alleged stolen property as it is allege! in the indictment. The given name may be alleged by initials; and, though a variance between the middle initial as alleged and as proved will be immaterial, a variance as to the first initial letter of the given name will be fatal, unless it be proved that the owner was known as well by the .name alleged as by the name proved. The indictment alleged the name of the owner in this case to be N. J. S., and the proof showed the name to be M. J. S. The trial court charged, in substance, that if the jury believed M. J. S. to be the person named in the indictment as N. J. S., the proof of ownership would be sufficient. Held, erroneous.</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>The indictment in this case jointly charged the appellant and William Neiderluck alias William Miller, Edward Levi and Frank Hawkins,' with the offense of conspiracy to commit the burglary of the eating house or restaurant of one Tom Wing, in Bexar county, Texas, on the night of the third day of July, 1886. The separate trial of the appellant resulted in his conviction, and his punishment was assessed at a term of four years in the penitentiary.</p> <p>Beginning on page 38 of the twenty-third volume of these Reports, will be found the report of the case of Neiderluck alias Miller v. The State, which was an appeal from a conviction for the burglary of the restaurant of Tom Wing, that transaction being the same out of which this prosecution was carved. A full statement of the evidence adduced upon the trial of the said Neiderluck is set out in that report. The evidence adduced upon this trial, so far as it relates to the burglary, is identically the same as that elicited upon the said trial of Neiderluck. This report will, therefore, embrace only such evidence as was delivered upon this trial and was not upon the trial of Neiderluck. Such additional evidence comprises the testimony of the conspirator Levi, who appeared as a witness for the State, and testified directly to the acts of conspiracy.</p> <p>He testified that his name was Edgar Levi, but that he was the person described in the indictment as Edward Levi. He was employed as a hand in the restaurant of Tom Wing at the time alleged in the indictment, and had then been in Wing’s service about three weeks. He then knew the defendant and had known him about three years. He formed Neiderluck’s (or Miller as he was known) acquaintance a day or two before the date alleged in the indictment. Four or five days before the date of the alleged offense, the witness met the defendant on the Military Plaza, in San Antonio, and, after some talk, asked him if he “wanted to turn a trick.” Defendant replied that he was “ strapped,” needed money, and was ready for anything. Witness then told him that Tom Wing, the Chinaman for whom he was working, had a trunk in the restaurant which contained between three and five thousand dollars, and that the trick he referred to was to get that money. Witness explained to defendant the position of the trunk in the house, and told him that he (witness) slept on the gallery. Defendant agreed to help the witness get the money, and witness suggested to him to do the work that night. The defendant replied that it could not be done that night, as he would have to get a gun, and somebody else to help him. Witness replied that a gun was not needed, as he had chloroform which, however, he did not know how to use. Defendant then said that he would get some one to assist who understood the use of chloroform, but that he would also get a gun to use in case of interference.</p> <p>Witness next met defendant on the Houston street bridge, near the restaurant, where he and Neiderluck or Miller were taking a view of the restaurant and its surroundings. Witness suggested to them to go into the restaurant and take dinner, so that they might get a correct idea of the interior arrangement of the establishment. Defendant went in and got dinner, and, after he had eaten, witness took him into the Chinaman’s room and showed him the trunk and the interior arrangements of that room. About nine o’clock, on the night of July 3, 1886, the witness, defendant, Neiderluck and Charley Hyatt met by appointment, near an old blacksmith shop, at the corner of Acequia street. None of the parties then knew or suspected that Hyatt was “standing in” with the officers. It was agreed that witness and Hyatt, who was also an employe of Wing, would return to the restaurant and await the arrival of defendant and Neiderluck. Hyatt pretended to want to do the work at once, but defendant and Neiderluck insisted that they must procure weapons to resist any possible attempt to arrest them if discovered. Neiderluck claimed to know how to use chloroform, and it was agreed that he should use it. Witness told defendant and Neiderluck that Wing did not always lock the front door, but sometimes closed it and braced it with a chair, and that when so closed it was easily opened. It was agreed that defendant and Neiderluck should first try the front door, and if they failed to get in they were to come to the back gallery, on which witness and Hyatt had their beds, and they (witness and Hyatt) were to admit them through the back door. The agreement further provided that the four parties named were to go into Wing’s room together, chloroform Wing, rob the trunk, and then take the money to a point near the railroad and divide it equally. Witness and Hyatt went to bed on the back gallery, as agreed, and, at about two o’clock on that morning, defendant and Neiderluck came to the said back gallery. Witness and Hyatt got up, and witness led the party into the restaurant through the back door, which he had left open. Witness and Neiderluck each had a pocket handkerchief saturated with chloroform. Neiderluck became afraid to use his handkerchief, and witness then spread the one he had over Tom Wing’s face. About this time defendant and Neiderluck started towards the dining room, and witness, hearing somebody step on the gallery, became alarmed and started to run, but ran into the clutches of Policeman Fitzhenry. Wing, though frightened and dazed on being aroused, managed to get a light, and the officers, placing the witness in front of them, marched into the room where defendant and Neiderluck then were. Witness, as he passed through the door, called to defendant and Neiderluck: “Boys, don’t shoot; they have got me in front, and you will hurt me.” Witness conceived the idea of getting the Chinaman’s money as soon as he ascertained that he had it. He had tried, but failed, to get others to join him in the robbery before he proposed it to defendant.</p>

Tried below before the Hon. Sam R. Frost. The conviction in this case was for fraudulently disposing of a horse on which the accused had previously executed a chattel mortgage, and the penalty assessed was a term of three years in the penitentiary.

<p>Appeal from the District Court of McLennan. Tried below before the Hon. John N. Henderson, on exchange.</p> <p>This is the appellant’s second appeal from convictions in the second degree for the murder of W. F. Hughston, in McLennan county, Texas, on the seventh day of September, 1885. The penalty assessed in the present conviction was a term of five years in the penitentiary. The conviction in this case was had upon substantially the same evidence that was adduced upon the former trial, which will be found fully reported in the twenty-second volume of these Reports, beginning on page 604. As important, however, to elucidate the ruling of this court upon the action of the trial court in overruling the motion for new trial, it is deemed proper to set out, in this report, the affidavit of M. B. Davis, filed, and the testimony of the said Davis adduced to controvert the defendant’s affidavit in support of the said motion. Among the grounds alleged for new trial, the motion sets up the following:</p> <p>“Second. Defendant submits that he has not had'a fair and impartial trial, for the following reason, to wit: The charge of the court was given to the jury, and they retired to consider of their verdict about half past twelve o’clock p. m., on Friday, the eighteenth day of November, and their verdict was returned into open-court at about eleven o’clock on Saturday morning,, the nineteenth day of November. On Friday, November 18, a ‘special dispatch,’ dated Waco, Texas, November 18, was sent to the Dallas Morning News, and published in the daily of November 19, some six or seven hours before the verdict of the jury was returned on said November 19, as aforesaid; wherein, among other things, occurs the following: ‘The jury in the case of The State of Texas v. W. R. Orman, charged with the killing of W. F. Hughston, after fourteen hours, brought in a verdict of guilty, assessing punishment at confinement in the penitentiary for five years. At the March term,- in 1886, Orman got fourteen years. This was reversed and remanded, and this is his second trial.’ Defendant submits to the court that this shows communication between the jury in his case, or some of them, and outsiders, contrary to law, public policy and the rights of defendant.”</p> <p>The counter affidavit of M. B. Davis reads as follows: “I, M. B. Davis, do solemnly swear that I am the correspondent of the Dallas Mews in Waco, and I am the person who sent to the said Mews the item referred to in the motion for new trial of defendant W. R. Orman, which was published in said Mews before the verdict was rendered_ in open court; and I do solemnly swear that I did not communicate with any member of the jury in reference to the case on trial or anything else, and that I did riot get the information sent by me to the Mews from anyone else who had communicated with the jury. I formed my opinion of what the verdict of the jury would be from words I heard spoken through the walls of the jury room while I was standing on the steps leading down from the district court room to the lower story of the court house,^ and from a general discussion I could hear from the outside going on in the jury room. When I sent the dispatch I did not, as a matter of fact, know what the verdict of the jury would be, and when it was rendered it happened to be just what I had stated it to be in the dispatch. In other words, I made a good guess at the verdict, based upon the facts acquired by me as stated above. I will further state that the copy of the Mews in which said dispatch was published did not reach Waco until after the verdict was rendered by the jury, and consequently could not have been, seen by any member “of the jury during their deliberations on the case,”</p> <p>The substance of the testimony of the said M. B. Davis, adduced upon the hearing of the motion for new trial, was that he sent the dispatch recited in the motion to the Dallas Mews and the Galveston Mews, at about eleven o’clock on the night before the verdict was actually returned into court. He obtained the facts upon which he based the said dispatch in thiswise: He took his seat on the steps leading from the second to the first floor of the court house, at a point near the wall of the jury room, in which the jury were then deliberating on the case. Part of the time he sat there he had his head against the wall of the said jury room, and part of the time he held his ear to the key hole of the jury room door. While thus situated he heard the jurors confusedly discussing the case, using the terms “manslaughter,” “ninety-nine years,” “ten years,” and “five years.” From the fact that a larger number of the voices appeared to favor five years, the witness reached the conclusion, as a mere conjecture, that the penalty of five years would be assessed against the defendant, and accordingly sent the dispatch set out in the motion. He had no communication with any member of the said jury. The issue of the Dallas News containing the said dispatch did not reach Waco until two hours after the verdict was actually rendered in open court, and the jury was discharged.</p> <p>The charge of the court on the subject of “cooling time,” referred to in the third head note of this report, reads as follows: “As to ‘cooling time,’ the court charges you that it is time for passion to subside and reason to interpose after provocation. Wliat is ‘cooling time’ is a question for the jury under the facts And circumstances of each particular case.”</p> <p>The language used in the closing argument for the State, referred to in the last head note of this report, was as follows:</p> <p>“The defendant, Bud Orman, armed himself and hunted the deceased, Bud Hughston, and shot him like a dog, and then gave up his pistol and surrendered to an officer, and said, ‘ Herring advised me to kill him, and Herring said he would clear me.’ Yes, gentlemen of the jury, I have seen several men that Herring defended and said he would clear hung as high as Haman.”</p>

Tried below before H. W. Martin, Esq., Special Judge. The conviction was for perjury, and the penalty assessed was a term of five years in the penitentiary.

<p>Appeal from the District Court of Fannin. Tried below before the Hon. D. H. Scott.</p> <p>The opinion sufficiently discloses the case. The penalty assessed against the appellant was a term of five years in the penitentiary,</p>

Tried below before the Hon. J. C. Russell. The conviction in this case was for the theft of a beef, the property of McDowell & Sheldon, and the penalty assessed was a term of two years in the penitentiary. The opinion succinctly but fully states the case.

<p>Ingest—Accomplice Testimony—Fact Case.—See the statement of the case for evidence held to be insufficient to support a conviction for incest^ inasmuch as it rests upon the uncorroborated testimony of a witness shown by the other proof to be a partieeps criminis.</p>

Tried below before the Hon. R. H. Coleman, County Judge. The conviction in this case was for an assault and battery upon the person of Sylva Ware, who was shown by the evidence to be the mother of the appellant. The penalty assessed whs a fine of twenty-five dollars. The information under which this prosecution was had was based upon a complaint filed by George Ware, Sr., the father of the accused, and the husband of the alleged injured party.

Tried below before the Hon. H. C. Pleasants. The conviction in this case was for the theft of a horse, the property of Amos Rowland, in Goliad county, Texas, on the eighteenth day of February, 1886. A term of five years in the penitentiary was the penalty assessed. Amos Rowland was the first witness for the State. He testified that in February, 1886, he lived in Llano county, Texas.

Tried below before the Hon. D. H. Scott. The conviction in this case was had under an indictment which charged the appellant with the theft of four head of cattle, the property of J. R. Johnson, in Red river county, Texas, on the fifteenth day of April, 1887. The penalty assessed against the appellant was a fine of two hundred and twenty-five dollars. The opinion of the court discloses the proceedings under which this result was reached.

Tried below before the Hon. T. W. Sims, County Judge. This conviction was for misdemeanor theft, and the penalty assessed against the accused was a fine of one hundred dollars. The record brings up no statement of facts.

Tried below before the Hon. J. N. Henderson. The charging part of the indictment reads as follows: “* * * that Jade Parker, Bud Milam, Julius Thompson, Henry Jackson, Sam McLaughlin, Mat Milam, Jack Spears and Jim Spears, late of the county of Milam, on the thirtieth day of March, in the year of our Lord 1887, with force and arms, in the county of Milam, and State of Texas, did then and there wantonly and willfully, and without the consent of W. S. Carothers, the owner, and…

Tried below before the Hon. Eugene Williams. Held: on the morning of July 4, the witness was placed upon the stand and testified to the circumstances attending the killing of the negro as they appeared to him. After the inquest the witness was turned into the “run around” or corridor of the jail to converse with his wife, who called to see him.

Tried below before Earle Adams, Esq., Special Judge. The indictment in this case charged the appellant and Jim Mathews, jointly, with the theft of one head of cattle, the property of H. C. Coburn, in Leon county, Texas, on the fifteenth day of July, 1886. The appellant was alone upon trial, and was convicted, his punishment being assessed at a term of two years in the penitentiary. H. C. Coburn was the first witness for the State.

Tried below before the Hon. E. Hobby. The death penalty was assessed against the appellant in this case for the murder of Martha Henderson. The transcript brings up neither a statement of the facts proved on the trial, nor bills of exception reserved during the proceedings. -

Habeas Corpus on appeal from the County Court of Milam. Tried below before the Hon. E. Y. Terral, County Judge. It was shown upon the hearing of the writ in the court below that, to an information charging him with petit theft, the relator pleaded guilty, and that a fine of one dollar and costs, and confinement for one hour in the county jail was assessed against him as punishment.

Tried below before the Hon. D. H. Scott. The conviction in this case was for the nocturnal burglary of the house of Gough & Smith, in Red River county, Texas, on September 10, 1887. The penalty assessed against the appellant was a term of two years in the penitentiary. Joe F. Smith was the first witness for the State.

Tried below before the Hon. J. V. Cockrell.' The indictment in this case charged the appellant and W. É. Willis jointly with the theft of a cow, the property of W. T. Wright, in Jones county, Texas, on the first day of August, 1887. A severance being awarded, the appellant was placed upon his trial, which resulted in conviction, and the assessment against him of a term of four years in the penitentiary. W. T. Wright was the first witness for the State.

<p>1. Theft—Evidence— Charge of the Court.—Upon a trial for theft-possession of the stolen property being the inculpatory fact—the State was correctly permitted to prove the defendant’s contemporaneous possession of other stolen animals than that described in the indictment; such proof being admissible upon the question of identity in developing the res gestae, or to prove by the circumstances the theft on trial, or the intent of the accused with respect to the animal named in the indictment. But, in failing to limit such proof to such purpose, the charge was materially defective.</p> <p>2. Same.—An essential element of the crime of theft is that the property was taken by the accused with intent to appropriate the same to his own use and benefit. In the general charge in this case, this element, in the application of the law to the facts, was omitted. Held: That, in view of the proof on the trial, the omission was error.</p> <p>3. Same.—The defense requested a special charge, as follows: “If Boyd bought the cow from Mixon, whether in good or bad faith, and defend ant’s connection with the cow was only to aid in disposing of said cow— in other words, if said cow was stolen by some one else than defendant, and sold to Boyd—then defendant’s subsequent connection with the cow would not he theft, and, if you so find, you will acquit the defendant.” Held: That, in view of the evidence on the trial, the refusal of the special charge was error.</p>

' Appeal from the District Court of Jones. Tried below before the Hon. J. V. Cockrell. This is a companion case to the preceding cases of Boyd v. The State and Willis v. The State, the prosecution in this case being for the theft of a cow, the property of one D. E. Coffman.

Tried below before J. H. Clark, Esq., Special-Judge. The conviction in this case was had under an indictment which charged the appellant with the the theft of “one head of neat cattle,” the property of William Kelso, Sr. The penalty assessed against the appellant was a term of two years in the penitentiary. William Kelso, the first witness for the State, testified that he lived in Edwards county, Texas, and had but a slight acquaintance with the defendant.

<p>Appeal from the District Court of McLennan. Tried below before W. M. Flournoy, Esq., Special Judge.</p> <p>This conviption was for the theft of a mare, the property of August Dulock, in McLennan county, Texas, on the first day of November, 1877. A term of ten years in the penitentiary was the penalty assessed by the verdict.</p> <p>August Dulock, the first witness for the State, testified that he lived in McLennan county, Texas, about eleven miles east of Waco. He owned two mares on or about the date alleged in the indictment. Their accustomed range was contiguous to the witness’s farm. After using the animals all day on the day alleged in the indictment, he turned them upon their range. When he looked for them a day or two afterwards he failed to find them, but received information which led him to believe that the defendant had stolen them. Acting upon the information thus received, the witness went to Corsicana and found the animal mentioned in the indictment in the possession of the mayor of that city, who told him that he had bought the said animal from the defendant, Witness proved his property and received it from the mayor, Mr. Harrall, and he and Harrall went to the jail where defendant was confined, to see him. Mayor Harrall pointed the defendant out as the man who had sold him the animal, and witness recognized the defendant as Ben Fuller. Witness had known defendant for more than a year prior to the theft, during which time the defendant lived with his father near the witness’s place. Witness did not consent for the defendant to "take his mare.</p> <p>John Harrall testified, for the State, that he bought the animal described in the indictment from the defendant, in 1877. Mr. Dulock afterwards proved his title to the animal and recovered it from the witness. The witness never saw the defendant prior "to the purchase of the animal. He took Dulock to the jail and pointed the defendant out to Dulock, who identified him as Ben Fuller.</p> <p>Green Sweat testified, for the State, that he knew the defendant. Mr. Dulock was mistaken as to the date of the theft of his mare, because, to the knowledge of witness, the defendant lived in east Texas in 1877. In 1876 he lived in San Saha, Texas. In November, 1876, Ben Fuller and another man were at the witness’s tent in San Saba. On that occasion defendant told witness that he, defendant, would ride a good horse when he got to McLennan county. Witness asked him where he would get it. •He replied that old man Dulock had two good ones. He left San Saba on the next day, saying that he was going to McLennan county. Witness went to McLennan county two or three days after Dulock missed his mare. Witness told his father what defendant said to him in San Saba about Dulock’s horses, and bis father put old man Dulock on the track of the animal.</p> <p>The motion for new trial raised the question discussed in the opinion.</p>

<p>Appeal from the District Court of Orange. Tried below before- the Hon. W. H; Ford.</p> <p>The indictment in this case, which charged the appellant with the theft of a cow, the property of William McFaden, in Jefferson county, Texas, was presented in the district court of Jefferson 'county, but upon the defendant’s application the venue was. changed to Orange county. Thq trial in the latter county resulted in the conviction of the appellant and the assessment against. him of a term of two years in the penitentiary,</p> <p>George White testified, for the State, that he lived in Beaumont, Jefferson county, Texas, and in January, 1885, was in the employ of the Beaumont Pasture Company, On the twenty-* sixth day of that month, the witness discovered the defendant and one Cyrus H. Patridge, both of whom he knew well, in the act of butchering the carcass of a heifer that had been recently killed. They had the animal skinned, and two quarters of the meat secured to a horse. Witness came upon them suddenly in a small island of timber into which he went to answer a call of nature. When witness came up on the parties, defendant remarked: “You have caught us.” The animal was the property of William McFaden. It was a red heifer, branded M6, connected, the 6 being formed by a right hand curve to the last stroke of the M. This all occurred in Jefferson county, Texas. On his cross examination the witness said that he discovered the parties butchering the carcass of the heifer between nine and ten o’clock a. m., on or about January 26, 1885. He testified on a former trial of this case, and may have testified on that trial that the offense was committed on January 26, 1885, or a day or two before or after that date. He did not recollect that he testified on that trial that it was between nine and eleven o’clock a. m.' Witness had a conversation with Cave Rowley, in Rowley’s grocery, about this matter, in February or March, 1885, and, in the presence of C. H. Patridge and others, he told Rowley that he knew nothing damaging to defendant and Patridge. Witness was then under oath administered by the grand jury, and did not feel that he was at liberty to tell any one the truth about the matter. He told J.. O. Leonard about the same thing he told Rowley.</p> <p>James Stewart testified, for the State, that he was the step-son of the witness White, and lived in Beaumont. On or about January 26, 1885, witness went to the prairie to see his said stepfather. In his search for his step-father, the witness went into a small island of timber, in which he surprised the defendant and Patridge butchering a heifer. They had it skinned and two of the quarters were on a horse. They ordered witness to “skip out,” and witness did so, crossing the bridge over the gully at the island.</p> <p>William McFaden testified, for the State, that he individually owned the M6 (connected) brand of cattle. He never gave his consent to the defendant, nor to Patridge or anybody else to take or kill the animal described in the indictment. Witness, Kyle and Weiss, composed the Beaumont Pasture Company. The entire business of that concern was under the witness’s management and control. George White was in witness’s em-</p> <p>_ William Holland testified, for the State, that he had never been offered money or other consideration by William McFaden to swear on this or any other trial that he saw defendant, Pat-ridge or anybody else butchering the carcass of one of his, Mc-Faden’s, or anybody else’s • animal. He never told Bolen nor anybody else that McFaden had ever made him such an offer.</p> <p>The State rested.</p> <p>J. 0. Leonard was the first witness for the defense. He testified that C. H. Patridge, deceased, was his uncle-in-law—that is, witness’s father and Patridge were brothers-in-law. On or about February 26, 1886, George White told witness that he knew nothing damaging to either defendant or Patridge in connection with this case; that all he knew about it was that he saw Patridge skinning a beef, and that Lawson Gray held Pat-ridge’s horse while Patridge did the skinning. Witness knew the location of the island of timber in which White claimed to have seen defendant and Patridge skinning the heifer. It was in plain view, of quite a number of occupied houses. Patridge was brought to Beaumont, by his wife, in an ambulance on January 27, 1885. He had been poisoned and was in a dangerous condition. Mrs. Patridge took him home—about fifteen miles from Beaumont—on January 29. Witness knew the reputation of George White for truth and veracity. It was bad, and from witness’s knowledge of that reputation, it was such as to render the said White unworthy of belief on oath.</p> <p>Charles Hemingway testified, for the defense, that he lived in the pasture of the Beaumont Pasture Company. Witness was familiar with the island of timber mentioned by the State’s witness. He knew the gully referred to by the witness Stewart, and knew that there was no bridge across it on January 26, 1885. It was washed away by a freshet at least three weeks before that date. The water in the gully where the bridge had been was at least seven feet deep on January 26, 1885. Witness knew also that the defendant worked all day on his house during the twenty-sixth, twenty-seventh and twenty-eighth days of January, 1885. Defendant was at home throughout Saturday and Sunday, January 24 and 25, 1885.</p> <p>Lawson Gray testified, for the defense, that he lived about a mile from the island of timber referred to by the State’s witnesses. On the morning of January 26, 1885, witness went with defendant and Patridge as far as the said island, on their way to a small marsh where they had some timber they wanted to see to. Patridge and defendant crossed the gully in a boat, and witness went to the place where the bridge had been, to get across. He found the water so high that he had to seek another and remote way around. Witness returned to his home about ten o’clock. Soon after that, witness saw defendant at work, taking down a house which witness had sold him.</p> <p>Hat Smith testified, for the defense, that he lived near the island of timber described by the State’s witnesses. He saw defendant at work on his house nearly all day on January 26, 1885, and all day on the next two days.</p> <p>H. Smith testified, for the defense, that he worked all day on defendant’s house on January 26, 27 and 28, 1885. Defendant worked with witness on that house during that time, except for a short while on the morning of the twenty-sixth, when he went with Lawson Gray to the marsh to see about some timber. He got back to his house about ten o’clock and resumed work.</p> <p>A number of witnesses called by the defense, testified that George White’s reputation for truth and veracity was so bad that he was not entitled to belief on oath. An equally large number of State’s witnesses supported the reputation of George White for truth and veracity, and declared it to be irreproachable.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. J. C. Russell. The conviction irr this case was for the theft of two horses, the property of A. A. White. The penalty assessed by the verdict was a terra of five years in the penitentiary. A. A. White was the first witness for the State. He testified that he lived in Victoria county, Texas, on the Victoria and Refugio road, and about three miles distant from Victoria.

Tried below before the Hon. J. C. Eandolph. The indictment in this case charged the appellant and John Criswell jointly with the theft of a horse, the property of B. F. Eosser, in McCulloch county, Texas, on or about April 30, 1885. A severance being awarded, the defendant was first placed upon trial, which resulted in his conviction, with a term of five years in the penitentiary assessed against him as a punishment. B. F. Eosser was the first witness for the State.

Court of Brazos. Tried below before the Hon. John N. Henderson. The conviction in this case was for the felonious theft of money, and the penalty assessed against the appellant was a term of two years in the penitentiary. Otto Oldham was the first witness for the State. He testified that he lived in Burleson county, Texas. On or about December 20, 1886, he went to the town of Bryan, in Brazos county, taking-with him four bales of cotton, which he sold.

<p>1. Accessary—Indictment.—See the opinion for an indictment held sufficient to charge the accused as an accessary to murder, as accessary is defined by article 86 of the Penal Code.</p> <p>2. Same—Definition.—“An accessary is one who knowing that an offense has been committed conceals the offender or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence. But no person who aids an offender in making or preparing his defense at law, or procures him to be bailed though he afterwards escape, sha'l be considered an accessary.’' It is not essential under this definition that the aid rendered to the criminal shall be of a character to enable the criminal to effect his personal escape or concealment, but it is sufficient if it enables him tó elude present arrest and prosecution. The facts upon which the indictment in this case was based were that immediately after the commission of the homicide by the principal he and the defendant had a retired private consultation, after which the principal mounted a horse and disappeared, and the defendant charged the only two other witnesses present to testify on the inquest to a statement fabricated by himself, to the end that, upon final trial, the principal might be acquitted or released on nominal bond. Held, that such facts would constitute the defendant an accessary within the purview of the statute.</p> <p>3. " Same.—That the facts above stated, if proved, would constitute the offense of subornation of perjury, would not defeat the prosecution of the accused as an accessary to murder.</p> <p>4. Same—Accomplice Testimony.—Under the rules of practice obtaining in this State, a conviction can n<-'t be had upon the testimony of an accomplice unless it he strongly corroborated by other evidence; and an accomplice can neither corroborate himself nor another accomplice. Another rule is that if a witness implicates himself in the offense it is immaterial that he claims to have been coerced—no matter what his motive, if he -rgrees to and does participate in the offense, he is an accomplice or partieeps criminis.</p> <p>6. Same—Case Stated—Pact Case.—The issue in this case was whether the defendant fabricated the narrative of the homicide committed by his principal, which was related upon the inquest over the deceased by the witnesses who testified against him on this trial. That issue was supported only by the uncorroborated testimony of the two witnesses who claimed that they testified to the fabricated statement upon the inquest because commanded to do so by the defendant, and because they were in fear of the defendant "and his principal. Held that, in the absence of corroborating testimony, the evidence is insufficient to support this conviction.</p>

Tried below before the Hon. George McCormick. The conviction in this case was for the theft of five head of •cattle, the property of John Jobe, in Gonzales county, Texas, on the sixteenth day of April, 1887. G. 0. Barber was jointly charged in the indictment, but the defendant was alone upon trial. A term of two years in the penitentiary was the penalty assessed against him. John Jobe was the first witness for the State.

Tried below before the Hon. G. H. Noonan. The conviction in this case was in the second degree for the murder of James Brown, in Bexar county, on the seventh day of May, 1886. The penalty assessed against the appellant was a term of seven years in the penitentiary. David Coulson was the first witness for the State. He testified that he lived within the city limits of San Antonio, about two ■and a half milés west from the court house.

Tried below before the Hon. T. M. Paschal. Appellant was indicted in Medina county, Texas, charging him with the murder of J. W. Hildebrandt in that county, on the twenty-second of June, 1887. The court, of its own motion, changed the venue to Kendall county. Trial was had there at the October term, 1887, resulting in a verdict of 'guilty of murder in the second degree, and punishment was fixed at a term of twenty-five years in the penitentiary.

Tried below before the Hon. F. A. Williams. The conviction in this case was for perjury, and the penalty assessed against the appellant was a term of five years in the penitentiary. G-. N. Adams was the first witness for the State.

<p>Appeal from the District Court of Gonzales. Tried below before the Hon. Everett Lewis.</p> <p>The opinion discloses the case.</p>