Volume 25 — Texas Court of Appeals Reports

Tried below before the Hon. H. O. Head. The conviction in this case was for arson, and the penalty assessed against the appellant was a term of five years in the penitentiary. S. F. Darwin was the first witness for the State. He testified that he resided at the town of Pilot Point, and was an insurance agent by occupation. He was acquainted with the defendant, and was familiar with the property which the defendant owned in the village of Tioga, Grayson county, Texas.

Tried below before the Hon. W. H. Ford. The conviction in this case was for unlawfully carrying a pistol, and the penalty assessed was a fine of twenty-five dollars and imprisonment in the county jail for the period of twenty days. The main witness for the State testified that he was present in Colmesnil, in Tyler county, Texas, on the afternoon of December 5, 1887, when the defendant and one Barnes had a difficulty.

Tried below before the Hon. Charles Eiley, County Judge. The conviction in this case was for playing cards in a public place, and the penalty assessed against the appellant was a fine of ten dollars. The question involved in the disposition of this appeal does not require a statement of the evidence.

Tried below before the Hon. George McCormick. The conviction in this case was for the fraudulent disposition of mortgaged property, and the penalty assessed was a term of two years in the penitentiary.

Tried below below before the Hon. H. G. ELittrell. Held: the witness sold to the defendant one dose of calomel and Dovers powders, in two separate powders, and two doses of quinine in two separate powders. It was about seven o’clock p. m. when the defendant bought the said medicine. The medicine was wrapped up in paper somewhat similar to that in evidence.

Tried below-before the Hon. James Masterson The second count of the indictment, being that under which the conviction was had, reads as follows: ****** And the grand jurors aforesaid, upon their oaths in said court, do further present that Anthony Peterson, on the second day of December, in the year of our Lord 1886, in the county of Montgomery, in the State of Texas, did wilfully, knowingly and fraudulently pass, as true, to Thomas J. Peel, a forged instrument in writing,…

TTarf.as Corpus on appeal from the county court of Rains. Tried below before the Hon. W. M. Lamb, county judge. The applicant being held under a warrant charging him with the violation of the “local option’.’ law, sought his discharge by the writ of habeas corpus. This being refused, he appealed to this court. The transcript brings up no sufficient statement of the facts.

Tried below before the Hon. J. H. Henderson, on exchange. The conviction was for swindling, and the penalty assessed was a term of two years in the penitentiary. The opinion sufficiently discloses the case.

Tried below before the Hon. F. E. Finer. The indictment in this case charged the appellant with the murder of John Ware, in Cooke county, Texas, on the second: day of September, 1887. The trial resulted in the conviction of the appellant for manslaughter, and the penalty was affixed at a term of five years in the penitentiary. M. L. Herrod was the first witness for the State.

Tried below before the Hon. H. C. Pleasants. This conviction was had upon an indictment which charged the appellant with the theft of one head of cattle, the property of Thomas Rucker, in DeWitt county, Texas, on the sixteenth day of October, 1886. The penalty assessed by the verdict was a term of two years in the penitentiary. Henry Keller was the first witness for the State. He testified that he was a merchant, and conducted a mercantile establishment in the town of Ouero.

Tried below before the Hon. William Kennedy. The indictment in this case charged the appellant, in the ordinary form, with the theft of two horses, the property of Q. H. Colvin, in Mitchell county, Texas, on the twenty-sixth day of July, 1887. The trial resulted in the conviction of the defendant, and the penalty was assessed at a term of four years in the State penitentiary. GK H. Colvin was the first witness for the State.

Appeal, from the District Court of McLennan. Tried below before the Hon. John ¡N. Henderson, on exchange. The conviction in this case was for the theft of a horse, the property of J. J. Davis, in McLennan county, Texas, on the ninth day of April, 1887. The penalty assessed against the appellant was a term of five years in the penitentiary. J. J. Davis was the first witness for the State. He testified that he lived near Bremond, in Robertson county, Texas.

<p>1, Aggravated Assault.—Information, to be sufficient to charge an offense against the laws of this State, must be predicated upon an affidavit or complaint which in substance charges the same offense as that charged in the complaint.</p> <p>2. Same—Fact Case.—That the accused was an adult male, and that he assaulted a female, was the aggravation charged in the information. The evidence fails to show that the accused was an adult male, and therefore it is insufficient to support the conviction.</p> <p>8. Same.—The Penalty assessed in this case was a fine of five hundred dollars and confinement in the county jail for the period of twelve months. Held that, in view of the evidence in the case, the penalty was excessive.</p>

<p>Appeal from the Criminal District Court of Harris. Trie® below before the Hon. Gustav Cook.</p> <p>The indictment in this case was presented by the grand jury of Harris county, Texas, to the criminal district court of Harris county, on the fourteenth day of October, 1887. It charged the appellant with the murder of Clarence Phillips, alleging that of his express malice aforethought the accused, on the fifth day of July, 1887, in Montgomery county, Texas, did shoot the said Phillips with a pistol, and that the said Phillips thereafter, on the sixteenth day of said July, in the said county of Harris, of the said pistol shot wound, did die. The death penalty was assessed against the appellant. '</p> <p>Doctor J. M. Boyles was the first witness for the State. He testified that he was one of the physicians in charge of the city infirmary of Houston. Clarence Phillips was brought to that infirmary on July 5, 1887, from which time until his death, on July 16,1887, the witness knew him. The said Phillips, when he was brought to the infirmary, was suffering from a gun shot wound through the head, and that wound was the cause of his death on the sixteenth day of the same month. The ball entered the forehead at the junction of the nasal and the frontal bones, and passed through the ethenoid bone and brain substance, but did not make its exit from the skull. Phillips was unconscious from the time he was placed in the infirmary until his death, except at rare intervals of brief duration, during which he appeared to recognize his acquaintances. He received every attention while at the infirmary, being treated by the witness and Doctors T. J. Boyles, Stuart and Red. The wound in the head of Clarence Phillips was necessarily fatal, and terminated in his death on July 16, 1887.</p> <p>On his cross examination, the witness stated that patients had been known to recover from the effect of gun shot wounds in the brain, but the instances of such recovery were very rare. The best treatment for cases of brain wounds was to keep the ■patient perfectly quiet. Phillips was brought to the infirmary on a railroad train. Witness could not say that his travel on the cars for a distance of thirty or forty miles, after being shot through the brain,- injured him, or impaired his chances of recovery. The infirmary was supplied with all the conveniences and surgical instruments necessary for the treatment of gun shot wounds, but witness could not say that it was supplied with all that were known to medical science. Ho effort was made to remove the ball from Phillips’s head, as it was imbedded in the brain. An operation to remove the ball would have been attended with great danger. The skull was not trepanned for the ball Such an operation was a very delicate one, ■ resulting often in producing the immediate death of the subject, and, besides, the . surgeons in this case could not locate the exact position of the foreign substance in the brain, »and hence could not know at what point of the skull to perform the operation. Trepanning, even when the exact position of the foreign substance is accurately known, results, in a great majority of cases, in bringing about the speedy death of the subject. Doctor Eutherford did not advise the trepanning operation in Phillips’s case, nor did he proffer to assist in- performing it.</p> <p>J. D. Wentzell testified, for the State, that he attended a party at the house of Eichard Norris, near Presswood, in Montgomery county, Texas, on the night of July 4 and morning' of July 5, 1887. Defendant and Clarence Phillips and the latter’s wife were also in attendance. Witness played the fiddle for the dancers on that night and morning. Everything progressed pleasantly until about three o’clock on the morning of July 5, when, on account of some little disturbance by somebody other than the defendant, the witness quit playing. Defendant then stepped up to witness and said to him: “You can take your d—d old fiddle and go to hell with it; you are in the habit of breaking up parties in that way.” Defendant then left witness and said nothing more to him until witness accosted him and asked him why he spoke to him in the manner he did. Defendant replied that he did it as a joke. Witness then resumed playing and played the fiddle for the party until daybreak, when he started home, bidding defendant good bye. Clarence Phillips and witness left the party together, and went together as far as Norris’s gate, where the witness stopped, Phillips going on. About this time defendant came up to witness and said to bim : “Jeff, I don’t want you to think, because I made apologies a while ago, that I am afraid of you.” He then drew his pistol, covered the witness with it and said to him: “You d—d son of a bitch, I will take the fiddle and cut it to pieces.” About that time Mrs. Phillips, the wife of Clarence, came up, and as she was passing through the gate, defendant said to her: “I have, your fiddle, and I would like to see any of your friends get it. I am going to cut it in pieces.” Mrs. Phillips made no reply, but went on. Clarence Phillips then appeared on the scene, andi defendant said to him that he was going to cut the fiddle to pieces. Clarence replied that the fiddle belonged to him and his wife. Defendant replied to him: “You can’t get it, nor can any of your d—d friends.” Phillips replied that he would have the fiddle. Defendant then covered Phillips with his pistol, and said to him: “I will shoot the heart out of you before you shall have it, you d—d son of a bitch.” Phillips then said to defendant : “ Lew, I am unarmed, and I hate for a man to take advantage of me in that way.” The defendant replied: “I won’t shoot you; you are too brave a man to be killed; so go off, arm yourself and come back and settle it with me.” Phillips then asked defendant: “If you do not intend to shoot, why do you keep your pistol drawn on me ? You know I won’t take your language from any man, you d—d rascal.” The defendant thereupon stepped back, fired, and shot Phillips between the eyes. Phillips fell to the ground, and defendant cocked his pistol to fire again, when witness appealed to him to desist. Defendant thereupon turned towards the witness and fired a shot into the air and walked off, and witness did not see him again. Witness could not remember that any person but Jimmy Vick, besides himself, was present at the time of the shooting. Clarence Phillips was shot near Presswood, in Montgomery county, Texas, just after daylight on the morning of July 5,1887, and was placed on the train and taken to the infirmary at Houston on the same day.</p> <p>Cross examined, the witness said that he was now residing at the house of Mrs. Phillips, and had been residing there for several months before .the shooting of Clarence Phillips. He was in the employ of Clarence Phillips at the time of the shooting. The fiddle which was played by the witness that night, and which was the apparent casus belli of the difficulty, was the property of Clarence and Mrs. Phillips. It was taken to the dance by the witness. Upon starting from home to the dance on the night before the shooting, Clarence Phillips told his wife to get a bottle of whisky and take it along; which she did. Heither the witness nor Clarence Phillips took any whisky to the party. Witness did not know that all of the whisky that was at the party was taken there by Mrs. Phillips. He knew of but one bottle of whisky being taken from Phillips’s house. Phillips and defendant drank together several times during the night, but neither of them was drunk. Witness himself drank with Phillips and defendant from the bottle which was taken to the party by Mrs. Phillips. Ho disturbance of any kind occurred at the party until three o’clock in the morning, and defendant and Phillips appeared to be on friendly terms throughout the night. Witness did not tell Phillips what the defendant said to him at three o’clock about the fiddle. There was no understanding or agreement between witness and Phillips to provoke a difficulty with the defendant on that night. Witness had no reason to and did not anticipate a row of any kind. The party had broken up, and the guests had started home when the shooting occurred. Defendant did not put up his pistol from the time that he first drew it on the witness until he shot Phillips. The witness had no quarrel at the gate with defendant before defendant drew his pistol and took the fiddle away from him. Witness was unarmed, and, so far as he knew, Phillips was also unarmed.</p> <p>James Vick testified, for the State, that he was present at the party at Richard Norris’s house, near Press wood, Montgomery county, on the morning of July 5, 1887, and witnessed the shooting of Clarence Phillips by the defendant. The shooting occurred just after day light, and just after the party had broken up and while the guests were going home. It occurred at a point just outside of Norris’s gate, and between the gate and the railroad track. When witness started towards the gate on his way home, he saw Phillips going towards Peterson’s house, just across the railway from Norris’s gate, and about fifty yards distant. Wentzell was then standing at the gate. Just as witness was going through the gate, defendant drew his pistol on Wentzell, took Mrs. Phillips’s fiddle from Wentzell’s hand and said to him:' “You d—d son of a bitch, I am going to cut this fiddle to-' pieces.” About this time Clarence Phillips came back to Norris’s gate from Peterson’s house, and defendant said to him: “I have got your fiddle, and I am going to cut it to pieces. You can’t get it, you nor none of your d—d friends.” Phillips replied that he was going to have his fiddle, when defendant covered Phillips with his pistol and said to him: “I will shoot your d—d heart out before you shall have it.” Phillips replied: “You have the advantage of me; I am unarmed or I would not take this.” Defendant then said: “I am too brave a man to shoot you,” and dropped his hand with the pistol to his side. He was then holding the pistol in his right, and the fiddle in his left hand. Witness could not see defendant’s right hand after he dropped it to his side, and could not say whether or not he put-his pistol in his pocket. Phillips then advanced two steps towards defendant, stopped and said to him: “Shoot my heart out, you d—d scoundrel. You are too d—d big a coward to shoot.” Phillips’s hands were then at his sides. Defendant took two steps out of the path as Phillips stepped forward. Phillips then said: “You d—d rascal, I can’t take that!” Thereupon defendant raised his pistol and fired, shooting Phillips in the forehead. Phillips fell, and defendant walked across the railroad to Peterson’s house, and witness left the scene. Phillips, when shot, was standing still with his hands hanging down by his side.</p> <p>Cross examined, the witness stated that, just before the party broke up, he saw the defendant, Phillips and Wentzell together in a room, taking a drink. Something was said at that time about defendant’s hat being lost. Phillips and Wentzell left the house first, Phillips going on to Peterson’s house, and Wentzell stopping at the gate. Witness then went into the room in which the parties named had just drank, and defendant left it, going as far as the gate. Witness then heard loud talking at the gate between defendant and Wentzell. Judging from the voices of the two men, they were both excited, but witness could not distinguish what was said by either of them. Witness then left the room, and, as he approached the gate, the defendant drew his pistol on Wentzell, took the fiddle and made the remark stated by witness on his direct examination. Wentzell quit playing the fiddle about three o’clock on the morning of the fifth, but soon recommenced, and played until the party broke up. Nothing of an unpleasant nature occurred that the witness observed, and if there was any understanding between Wentzell and Phillips to provoke a difficulty with defendant during that night, the witness did not know it. Witness knew of no trouble between defendant and Phillips on that night, prior to the shooting.. The witness did not think that the fatal shot would have been fired had not Phillips made the remark to defendant stated by witness on his direct examination, after defendant dropped Ms pistol to his side with the remark that he was too brave a man to shoot Phillips as they were then situated. On his re-examination the witness said that Phillips was not advancing upon the defendant^ nor was he making any hostile demonstrations at the time he was shot. Phillips was a stout and athletic man, the defendant a smaller and weaker man.</p> <p>Mrs. Sarah Phillips was the next witness for the State. She testified that she was the widow of Clarence Phillips, deceased. She attended the dance at Norris’s house on the night of July 4, 1887. She started home on the morning of July 5, after the party broke up. She had gone, perhaps, seventy-five yards up the railroad track when the fatal shot was fired. As the witness passed defendant and Wentzell at the gate, the defendant had her fiddle in one hand and his pistol in the other, covering Wentzell with the pistol. He said to witness as she passed through the gate: “I have your fiddle, and neither you nor your friends can get it.” Witness made no reply, but went on towards home. She was not looking back at the time of the shooting, or she would have seen it, as the gate could be seen from the point where she was when the shot was fired. Witness and her little daughter, who was with her, went back to the gate after she heard the shooting, and found her husband lying on the ground. While she was stooping over her husband’s prostrate body the defendant returned from Peterson’s house with a shot gun, and said to witness: “D—n you, if you don’t leave here I’ll shoot your d—d heart out, and your d—d kid’s, too ! ” Witness, fearing that defendant would execute his threat, left her prostrate husband and went into Horris’s yard. From there she went to Mr. Cooper’s house and remained until defendant left the vicinity. Witness then went back to her husband, stayed with him until he was placed on the train and taken to the infirmary at Houston, accompanied him to Houston, and remained with him until his death. Ho person remained with witness’s husband after he was shot, but everybody who was at the party left, and he lay where he fell, attended by no one except the witness, until just before he was taken to Houston. Witness’s husband had no pistol on his person that night.</p> <p>Mr. Cooper testified, for the State, that he attended the party at Horris’s on the night of July 4, 1887, but left about two o’clock next morning, up to which time no disturbance of any kind had occurred. Defendant came to witness’s house about twenty-four hours after the shooting, which was before his arrest. He said, in the course of the conversation about the shooting, that he was sorry for Phillips’s mother, but was not sorry for Phillips; that if it was to be done over again, he would do it, but wouldj do it better; that he did not know until noon on that day that Phillips was not dead, and that if he had known it in time he would have gone back and finished him. Witness was friendly to both defendant and Phillips. He had taken no part in this prosecution, and felt no further interest in it than to see justice done and truth prevail.</p> <p>The State rested.</p> <p>Terry Presswood was the first witness for the defense. He testified that he attended the dance at Horris’s house on the night of July 4, 1887. During the night witness and Phillips went into the yard together, and took a drink from a bottle that Phillips produced. While standing in the corner of the yard, after taking the drink, Phillips drew a pistol from his clothes, showed it to the witness, and said that he brought it to the; party for the purpose of killing Lew May before daylight. He. then asked witness if he, witness, had any cartridges. Witness replied in the negative, when he repeated the question and felt ‘ of the witness’s vest pocket. Witness told him again that he. had no cartridges, when Phillips produced four from his pocket and remarked that it made no difference, as he had some. He dropped one of the cartridges, which witness picked up and offered to him. He said that three were enough, and that witness could keep the fourth. He then put three cartridges in his pistol and returned his pistol to his pocket. When witness went back into the house he whispered to defendant, telling him what Phillips had said and done. He did so because he did not want any trouble to arise, and he knew that Phillips, when drinking, was a dangerous man. On his cross examination the witness said that it was early in the night when Phillips exhibited the pistol to him and made the threats stated. He did not see defendant and Phillips take a drink together after Phillips exhibíted the pistol to him. Ho conversation took place between witness and Phillips prior to the one in which Phillips exhibited the pistol and said that he was going to kill defendant before daylight. Witness and Phillips were not enemies at the time of the shooting. It was true that witness’s father and Phillips were not then friends, but that fact did not influence the witness. Aman named Smith, who lived in Montgomery county, came up to witness and Phillips during the conversation in the yard, and while Phillips was drinking and showing his pistol. That man was not a friend of the witness. He and witness had a fight not long before this trial.- Witness did not know why Smith came to where he and Phillips were unless he hoped he would be offered a drink. Witness had told a straight story about Phillips’s pistol, and did not want to be asked any more questions about it. So far as the witness kpew, Phillips made no attempt to shoot defendant on the night of the dance. Everybody left Horris’s in a hurry after the shooting of Phillips. Wentzell ran away faster than anybody else. Witness could not say why no person went to Phillips’s assistance. He did not know that they were afraid of defendant.</p> <p>Doctor R. Rutherford testified, for the defense, that trepanning was a surgical process for the removal of foreign substances from the brain. That process would result successfully in not more than one out of a thousand operations. Witness did not advise trepanning in the Phillips case, nor did he offer to assist in performing the operation. Gun shot wounds in the brain were generally fatal. The foreign substance in the brain could be located by the part of the body paralyzed. Ho remedy, other than trepanning, was known for a gun shot wound in the brain; and that operation, though occasionally successful, was fatal in a vast majority of cases. ,</p> <p>Mr. Presswood, the father of the witness Terry Presswood, testified, for the defense, that he was well acquainted with Clarence Phillips, and knew that he sustained the reputation of being* a violent and dangerous man when drinking, and one likely to execute a threat. Witness and Phillips had a misunderstanding once, and were not friends, though they spoke in passing. That fact, however, would not influence witness to testify falsely about Phillips. The witness was also acquainted with the reputation of the witness Wentzell for truth and veracity. It was bad, and from witness’s knowledge of that reputation, witness would not believe Wentzell on oath.</p> <p>Richard Horris testified, for the defense, that the party at which the fatal shooting took place was had at his house, near Presswood, in Montgomery county. His house fronted the railway right of way, about fifty feet from it. Peterson’s house was just across that right of way, opposite and about fifty yards distant from witness’s house. The route from witness’s to Phillips’s house lay with the railway track, west. About the time that the party broke up, on the morning of July 5, the witness, who was in the back part of his house, heard loud talking at his front gate. He went into the front room, and found his lady guests very much excited and frightened. He attempted to pacify them, and about that time he looked out and saw defendant and Phillips at the gate, defendant retreating and Phillips advancing on him. Defendant retreated as far as a pile of logs, beyond which he could not go, Phillips still advancing. Defendant fired and Phillips fell, about midway between witness’s fence and the railway track. Defendant, who then had the fiddle in his left hand, upon the fall of Phillips went to Peterson’s house. He" did not, so far as the witness saw or heard, return to the body of Clarence Phillips. Witness did not see Mrs. Phillips near the body of Phillips after the. shooting, and thought that, if Mrs. Phillips came to the body at all, he would have seen her; or, if defendant ordered her to leave the body, that he would have heard him. ,</p> <p>Cross examined, the witness said that Phillips and defendant were both friends of his. If there was any disturbance at the party prior to the shooting, witness did not know it. He did not know that a single guest of his was armed. He did not go to Phillips’s body after the shooting. He remained in the house to pacify the ladies, and about thirty minutes after the shooting he and his wife left home through the back gate of Ms yard and went to the house of his cousin, leaving Phillips where he fell. Mrs. Blount was the only person, so far as witness knew, who went to Phillips’s body. Witness knew only by hearsay that Phillips’s body was moved to his house after he left. Witness could not say that the reason nobody went to Phillips after the shooting was because they were afraid of defendant. Nor could he say that the same reason prevented people from attending to Phillips. Mrs. Phillips left the witness’s house at the same time and by the same gate that witness did, but went off in another direction than that taken by the witness. Witness was standing ■ in the hallway of his house, looking out, at the time of the shooting, and could and did see all that occurred. Mrs. Phillips was then some distance up the railway track, going towards her house.</p> <p>Mr. Peterson, who lived opposite and near Norris’s house, testified, for the defense, that, soon after the shooting of Phillips, the defendant came to his house and demanded his gun. He remained at witness’s house for some time, but did not go back to where Phillips was lying, nor did Mrs. Phillips go back to her husband after he fell. On cross examination, the witness said that, when defendant demanded his gun, he declined to let him have it, but he took it, notwithstanding the witness’s objection, saying that he was apprehensive of being mobbed. The people at Norris’s party ran off as soon as the shooting occurred. Phillips lay where he fell, in front of Norris’s gate, for an hour and a half before anybody went to him. He was then taken into Norris’s house.</p> <p>Mr. Enloe and Mr. J. M. Bowen, the latter a justice of the peace, testified, for the defense, that, to .their knowledge, the reputation of Phillips was that of a violent, turbulent and dangerous man, when drinking. The reputation of the State’s witness, Wentzell, for truth and veracity was bad. Bowen further testified that defendant surrendered to him, and he delivered defendant to Mr. Simonton, sheriff of Montgomery county. On his cross examination he stated that he and a constable started out to arrest defendant after the shooting. As they approached the house in which defendant was said to be at that time they were warned by a man they met on the road not to go to the house, as defendant would shoot them. It was not] true that Sheriff Ellis, of Harris county, and his deputy, Albert Erichson, arrested defendant. Defendant was not placed in custody until the third day after the shooting, when he surrendered to witness and was turned over to the sheriff of Montgomery county by witness.</p> <p>Mrs. Roberts testified, that [she reached the dance at Homs’s house between ten and eleven o’clock on the night of the shooting. ■ Soon after she got into the house, defendant told her that Phillips was drinking, and had been trying for some time to get him to leave the house for private talks, and had endeavored to “raise a row” with him; and that he did not want to have a difficulty with Phillips, and therefore had not left the house with him. The witness was not related to either defendant or Phillips.</p> <p>Several witnessess for the defense testified that the general reputation of Phillips was that, when drinking, he was a violent, turbulent and dangerous man, well calculated to execute a threat. 0</p> <p>The defense closed.</p> <p>Alexander and Albert Erichson and S. S. Ashe testified for the State, in rebuttal, that they had each known Clarence Phillips for twenty years, during which period he sustained the reputation of being a peaceable, law abiding citizen. Heither of said witnesses had ever knofwn said Phillips to wear a pistol. Albert Erichson testified, further, that he and sheriff Ellis arrested defendant in Montgomery county, Texas, and that J. M. Bowen had nothing to do with said arrest.</p> <p>D. A. McKinney and Reed Singleton testified, for the State, in rebuttal, that they had each known the States’ witness Wentzell, for a number of years. They knew his general reputation for truth and veracity in the community in which he lived. It was good.</p> <p>Sheriff Ellis testified, "for the State, in rebuttal, that he and his deputy, Erichson, went to the “Big Thicket” in Montgomery county and arrested defendant. The arrest was made in this way: They met Bowen and had some conversation with bim about their purpose to arrest defendant. Bowen said that he would go after defendant. He left and soon returned with defendant, when witness and Erichson arrested him. On the same day witness, with his prisoner, met Sheriff Simonton and offered to surrender defendant to him. It was finally determined to take defendant to Houston for safe keeping.</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. J. Gr. Hazelwood. Under an indictment which charged him with the murder of Sam Atkinson, alias Sam Atkison, in Rusk county, Texas, on the twenty-fourth day of December, 1886, the appellant was convicted of manslaughter, and was awarded a term of three years in the penitentiary. . Sam Brewster was the first witness for the State.

Habeas Corpus on appeal from the Criminal District Court of Galveston. Tried below before the Hon; Gustav Cook. By direction of the court the arguments of counsel on both -sides are inserted in full, and they disclose all facts of any significance. The relator in this case was held under a complaint charging him, as a retail dealer, with selling liquor on Sunday.

Tried below before the Hon. P. M. Stine. This conviction was for the theft of a cow, the property of Tom Waggoner, in Wilbarger county, Texas, on the first day of April, 1886. The penalty assessed by the verdict was a term of two years in the penitentiary. J. P. Turknett was the first witness for the State. He testified that he lived in Wilbarger county, Texas, and knew the defendant.

Habeas Corpus on appeal from the District Court of Wheeler. Tried below before the Hon. Frank Willis. The relator in this case, who was held to bail in the sum of two thousand dollars by the justice of the peace upon a complaint charging him with cattle theft, sought his discharge by the writ of habeas corpus which he sued out before the district court. The said court, upon the hearing of the writ, reduced the bail to four hundred dollars; and refused the discharge.

Tried below before the Hon. P. M. Stine. By the verdict and judgment in this case the trial court awarded to the appellant a term of two years in the penitentiary for the theft of “one cattle, the same being the corporeal personal property of W. B. Worsham.” Por all practical purposes the case is sufficiently stated in the opinion of the court.

Tried below before the Hon. J. M. Hall. The conviction in this case was in the second degree for the murder of Ben Shultz, in Johnson county, Texas, on the sixth day of February, 1886. The penalty assessed by the verdict was a term of seven years in the penitentiary. Ike Moore was the first witness for the State. Hé testified that he was present and witnessed the difficulty between defendant and Shultz, which terminated in the shooting and the subsequent death of Shultz.

Tried below before the Hon. J. Q-. Hazelwood. The conviction in this case was for arson, and the penalty imposed by the verdict was a term of five years in the penitentiary. Berry Duke was the first witness for the State. He testified that he lived in Rusk county, Texas. He was the owner of the house which was alleged in the indictment to have been burned by the defendant.

Tried below before the Hon. J. G. Hazelwood. This conviction was in the second degree for the murder of David Needham, in Rusk county, Texas, on the sixteenth day of March, 1886. A term of sixteen years in the penitentiary was the penalty assessed. . W. H. Needham was the first witness for the State. He testified that he was the father of David E. Needham, the deceased.

Tried below before the Hon. J. M. Hall. The conviction in this case was for assault with intent to murder one William Wells, and the penalty imposed was a term of two years in the penitentiary. William Wells was the first witness for the State. He testified that he lived in Alvarado, Johnson county, Texas. He had known the defendant since January 1, 1887, on which day he was cut by the defendant. Witness was the proprietor of a restaurant in Alvarado.

Tried below before the Hon. J. N. Henderson. The conviction in this case was for the burglary of the house of Warner Williams, in Eobertson county, Texas, on the night of November 12, 1887. Force was the means of entry charged in the indictment. The penalty imposed by the verdict was a term of two years in the penitentiary. Warner Williams was the first witness for the State.

Tried below before the Hon. S. R. Frost. The indbtment charged the appellant with the murder of Peter Milstead, in Limestone county, Texas, on the seventh day of September, 1874. This trial, which was had at the November term, 1887, of the district court of Limestone county, resulted in the conviction of the appellant for manslaughter, and the assessment against him of a term of three years in the penitentiary as punishment.

Tried below before the Hon. J. S. McNutt, County Judge. The conviction was for an aggravated assault upon J. N. Strane, and the penalty assessed was a fine of twenty-five dollars. The substance of the testimony of the prosecuting witness, J. N. Strane, was to the effect that while he was cutting a log of wood in his field, on the day mentioned in the information, the defendant and his brother, R. A. Flournoy, approaching from opposite directions, came to where he was.

<p>Practice—Diligence—Continuance—Mew Triad.—A rale of practice which obtains in this State is that if an application for a continuance be refused, and the evidence adduced on the trial discloses that the evidence set out in the application for continuance was material and probably true, a new trial should be granted. See the opinion for a showing of diligence held insufficient to have authorized the award of a continanee, bnt see the same and the statement of the case for evidence disclosed in the application for continuance, which, in the light of the evidence on the trial, entitled the accused to a new trial.</p>

Tried below before the Hon. Gustav Cook. Held: on the night of but after the killing. He did not hear what was said by either deceased or defendant just before the shooting. He only heard loud talking, which he could not understand. Witness was in the range of balls fired at the ■table, but did not take his face from the window.

Tried below before the Hon. George A. McCall. The appellant, who was the secretary and treasurer of a private corporation, known as the “Franco-Texan Land Company,” was convicted under an indictment which charged him with the embezzlement of five hundred dollars in money, the property of the said company. The venue was laid and the trial had in Parker county, Texas. The verdict and judgment assessed the penalty against the appellant at a term of two years in the penitentiary.

Tried below before the Hon. Eugene Williams. The death penalty was assessed against the appellant upon his. conviction in the first degree for the murder of L. S. Guinn, in McLennan county, Texas, on the twenty-seventh day' of August, 1887. Miss Edna Guinn was the first witness for the State. She testified that she was the daughter of the deceased and was eight years old. She was with her father, standing at his side, on the back porch of the house, when he was shot.

Tried below before the Hon. Gustav Cook, on exchange. The conviction in this case was in the first degree for the murder of John Talley, in McLennan county, Texas, on the sixteenth day of July, 1887. The death penalty was assessed against the appellant. Harvey Wilcox testified, for the State, that he did not know the defendant, but he did know the deceased, who was shot and killed on July 16, 1887.

Tried below before the Hon. Griffin Ford, County Judge. The information in this case charged that the appellant, “ on the twenty-eighth day of February in the year of our Lord, one thousand eight hundred and eighty-seven, with force and arms, in the county and State aforesaid, did wilfully and unlawfully go into a public street in the town of Montague, and use loud and vociferous language, curse and swear, in a manner calculated to disturb the inhabitance thereof; contrary,”…

Tried below before the Hon. E. G. Bower, County Judge. The appellant in this case was convicted under an indictment which charged him with the theft of four bushels of com, the property of J. W. Bowlin, of the value of sixty cents per bushel. The penalty assessed against the appéllant was confinement in the county jail for the period of five days. None of the witnesses who were examined on the trial testified to the value of the alleged stolen property.

Tried below before the Hon. J. E. Haworth, County Judge. The conviction in this case was for an assault and battery on Patsey McConnell, and the penalty assessed was a fine of twenty-five dollars. Patsey McConnell testified, for the State, that she was the wife of the defendant. On the day charged in the information the defendant, who was an adult male, kicked the witness on the leg. The kick was not a severe one, nor did it hurt or pain the witness.

Tried below before the Hon. Sam Furman, County Judge. This conviction was for exhibiting a gaming bank or table for the purpose of gaming, 'and the penalty assessed against the appellant was a fine of twenty-five dollars and confinement in the county jail for ten days.

Tried below before the Hon. D. H. Scott. The opinion states the case. The amount of the bond was five hundred dollars. The amount adjudged against the appellants was fifty dollars.

Tried below before the Hon. H. O. Head. The conviction in this case was for theft of ten dollars from the person of Thomas Moore, in Collin county, Texas, on or about December 1, 1887. The penalty assessed against the appellant was a term of two years in the penitentiary. The opinion states the substance of the testimony of Thomas Moore, the prosecuting witness. Mr. Hedrick was the next witness for the State.

Tried below before the Hon. J. G-. Hazlewood. The conviction in this case was for the theft of a cow, the property of Doctor E. B. Blocker, in Harrison county, Texas, on the third day of February, 1888. The penalty assessed against the appellant was a term of two years in the penitentiary. Morris Bath was the first witness for the State. He testified that he saw the defendant in possession of Doctor Blocker’s cow on or about February 1, 1888.

Tried below before the Hon. C. J. Chapman, County Judge. The opinion states the nature and result of the case. The penalty assessed against the appellant was a fine of twenty dollars.

Tried below before the Hon. D. H. Scott. The indictment charged the appellant, in the second degree, with the murder of Samuel Wooldridge, in Lamar county, Texas, on the twenty-sixth day of October, 1886. The conviction was for aggravated assault and battery, and the penalty assessed by the verdict was a fine of one thousand dollars and confinement in the county jail for the period of eighteen months. S. C. Vaughan was the first witness for the State.

Tried below before W. C. Jones, Esq., Special Judge. This conviction was for the theft of a yearling of the cattle kind, the property of Hix Howels, and the penalty assessed against the appellant was a term of two years in the penitentiary. Hix Howels was the first witness for the State. He testified that his name, properly spelled, was “Hicks Howells,” and that he lived in the northeast part of Hunt county. He missed his certain yearling from the range in April, 1887.

Tried below before the Hon. D. P. Marr. The conviction in this case was for the theft of ten head of horses, the property of R. J. Turner, in Atascosa county, Texas, on the twenty-fifth day of April, 1887. The penalty assessed against the appellant was a term of seven years in th* penitentiary. Gr. R. Tullos was the first witness for the State. He testified that on or about the last day of March, 1887, the defendant brought ten head of mares to the residence of W. 0.

Tried below before the Hon. George McCormick. The conviction was for uttering a forged instrument, knowing it to be forged, and the penalty assessed against the appellant was a term of two years in the penitentiary.

Habeas corpus on appeal from the District Court of Bexar, Tried below before the Hon. George H. Noonan. The opinion discloses the casé and sets out the warrant of the Governor of the State, under which the relator was arrested and held in custody. The validity and sufficiency of the said warrant are the only questions involved in this appeal.

Tried below before the Hon. Sam Furman, County Judge. The conviction was for carrying a pistol, and the penalty assessed was a fine of twenty-five dollars and confinement in the county jail for twenty days. S. P. Maddox testified, for the State, that he was one of the policemen of the city of Fort Worth. On the night of December 12, 1887, he arrested the defendant in the White Elephant saloon, in said city, for carrying a pistol on his person.

Tried below before the Hon. George McCormick. The appellant was convicted in the first degree, and the death penalty was assessed against him, for the murder of Mary Miller, in Colorado county, Texas, on the twenty-seventh day of December, 1887. John Miller was the first witness for the State. He testified that he was the husband of Mary Miller, the deceased.

Tried below before the Hon. D. P. Marr. The conviction was for the theft of John Burmingham’s certain horse, in Atascosa county, Texas, on the fifteenth day of October, 1883, and the penalty assessed against the appellant was a term of five years in the penitentiary. John Burmingham was the first witness for the State. He testified, in substance, that he resided in Atascosa county, Texas, and lived there in 1883.

Tried below before the Hon. W. M. Key, County Judge. The opinion states the nature of the case. The penalty imposed by the verdict was a fine of twenty-five dollars. The proof for the State showed conclusively that the game of monte was played in a house owned jointly by the defendant and one Hardeman, at the time alleged in the indictment.

Tried below before the Hon. H. Teichmueller. The conviction was for the theft of a watch of the value of twenty dollars, and the penalty assessed by the verdict was a term of two years in the penitentiary. L. B. Lamson was the first witness for the State. He testified that he was the owner of the alleged stolen watch. He was now a resident of Smithville, but at the time of this offense was living in Caldwell county, at a railroad camp.

Tried below before the Hon. J. M. Brackenridge, County Judge. The offense attempted to be charged and for which the appellant was convicted, was betting at a gaming table exhibited for the purpose of gaming. A fine of ten dollars was the penalty-assessed.

<p>■ Appeal from the County Court of Karnes. Tried below before the Hon. J. C. Wilson, County Judge.</p> <p>The conviction was based upon an information which charged the appellant with disturbing a Sunday school congregation by loud and vociferous exclamations and swearing. The penalty assessed was a fine of twenty-five dollars.</p> <p>Several witnesses for the State testified that they participated in the Sunday school exercises referred to in the information. They heard talking and laughing during those exercises, which proceeded from the rear of the church, and, they thought, from a bench occupied by the defendant and two others. ' None of the said witnesses heard any swearing, and, with a single exception, they all declined to testify that the defendant did, or participated in, the talking and laughing. The one witness referred to testified that he heard defendant speak once in a tone of voice somewhat higher than a whisper, but not so high as the ordinary key of conversation. Not one of the witnesses testified to loud and vociferous exclamations, uttered by defendant or other person.</p>

Tried below before the Hon. George McCormick. Held: the witness asked him, Cordway, if Jackson was armed at the time he was shot and killed. Cordway replied that Jackson was not armed at that time. This latter part of the testimony of Cordway was not written down. The said inquest was held on the day after the killing of Jackson.

Tried below before the Hon. J. T. McKee, County Judge. This conviction was had under an information which charged that the appellant “did unlawfully break, pull down and injure the fence of J. D. Dibrell and Emil Masheim, against the peace and dignity of the State.” The penalty assessed was a fine of ten dollars.

Tried below before the Hon. J. T. McKee. The slander charged against the appellant was that he imputed a want of chastity to Christina Dolle, a female, by stating, in the hearing of several witnesses, that the said Christina Dolle was a whore, and had never done anything since she came to Texas, but acted as a whore for negroes. The penalty assessed against the appellant was a fine of one hundred dollars. Fritz Dolle was the first witness for the State.

Habeas Corpus on appeal from the District Court of Tarrant. Tried before the Hon. E. E. Beckham. The relator in this case was held under' an indictment charging him with the murder of John Crisman, in Tarrant county, Texas, on the thirteenth day of February, 1888. He was refused bail by the judge below and prosecuted appeal to this court, which reverses the judgment, and awards bail in the sum of five thousand dollars.

Tried below before the Hon. E. C. Bonham, County Judge. The appellant was convicted for permitting a game of cards to be played on his premises, in a house appurtenant to a house for retailing spirituous liquors. The penalty assessed against the appellant was a fine of twenty-five dollars.

Tried below before the Hon. H. F. Berry, County Judge. The information jointly impleaded the appellant and Lee Walker, Henry Walker, Bill Moore and Waddy Moore for the false imprisonment of one William Barnett by “restraining him from removing from one place to another as he might see proper.” The appellant being alone upon trial was convicted, and his punishment was assessed at a fine of ten dollars. William Barnett was the first witness for the State.

Tried below below before the Hon. W. S. Smallwood, County Judge. This conviction was for selling intoxicating liquor to a minor, and the penalty imposed upon the appellant was a fine of twenty-five dollars. Briefly stated, the evidence shows that the defendant, a retail liquor dealer, sold a glass of beer to Otto Krebs.

<p>Appeal from the County Court of Tarrant. Tried below before the Hon. Sam. Furman, County Judge.</p> <p>The conviction was for a violation of the local option law, and the penalty assessed was a fine of twenty-five dollars and confinement in the county jail for twenty days.</p>

<p>Swindling—Indictment for swindling by means of a false chattel mortgage and fraudulent verbal representations is not sufficient to chargS the offense unless it sets out the alleged mortgage in Time verba, or unless, stating good reason why the alleged mortgage could not be so set out, it sets it out in substance.</p>

Tried below before the Hon. W. W. Moores, County Judge. The conyiction was for gaming, and the penalty assessed against the appellant was a fine of twenty dollars.

Tried below before the Hon. W. W. Moores, County Judge. The conviction was for gaining, and the penalty assessed against the appellant was a fine of ten dollars.

Habeas Corpus on appeal from the District Court of Wharton. Tried below before the Hon. W. H. Burkhart. The relator was held under two indictments, the first charging him with the murder of Mary K. Brown, and the second with the murder of Mayo Brown. The writ of habeas corpus to secure bail was awarded to cover both indictments, and, by agreement of counsel for the State and the relator, the two cases were submitted and disposed of on the same testimony.

Appeal, from the County Court of Kinney. Tried below before the Hon. I. L. Martin, County Judge. The opinion discloses the case. The penalty assessed against thé appellant was a fine of twenty-five dollars and confinement in the county jail for twenty days.

Tried below before the Hon. W. E. Collard. The conviction was for burglary, and the penalty assessed against the appellant was a term of three years in the penitentiary. The opinion states succinctly the substance of the proof adduced on the trial.

Tried below before the Hon. John N. Henderson. The appellant was convicted in the first degree, and was awarded the death penalty, for the murder of W. T. Leonard, in Milam county, Texas, on the eighteenth day of June (as charged in the indictment), 1887. James Leonard was the first witness for the State.

<p>Appeal from the District Court of Robertson. Tried below before the Hon. W. E. Collard.</p> <p>This conviction was for the burglary of the blacksmith shop of one William Guenzell, in Robertson county, Texas, on the twenty-eighth day of January, 1887. The penalty assessed against the appellant was a term of three years in the penitentiary.</p> <p>William Guenzell was the first witness for the State. He testified that he lived in the town of Hearne, Robertson county,</p> <p>Texas. He was a blacksmith and wood workman, and proprietor of the shop, situated in said town. His said shop was entered on the night of January 28, 1887, by some person unknown to witness, and without witness’s knowledge or consent, and certain articles, including a brace and bit, a chisel and a handsaw, were taken and removed from said shop. The shop was entered by digging a passage under the' door. About three weeks after said burglary, the witness found the articles mentioned in the possession of Allen Burke, in Hearne.</p> <p>Lydia Ricker testified, for the State, that she was the proprietress of a boarding house in Hearne, Texas. Defendant came to witness’s house to board about the last of January, or the first of February, 1887. This was on the Monday after the burglary of Guenzell’s blacksmith shop. He brought something to the house tied up in a bundle. He remained at witness’s house about a week. On her cross examination, the witness said that the articles brought to her house in a bundle by defendant were tools of some kind. Defendant kept the tools in the house and made no effort to conceal them. Witness’s house was the third one from Guenzell’s blacksmith shop, on the same side of the street.</p> <p>Allen Burke testified, for the State, that the defendant gave him, the witness, the brace and bits and the chisel as security for board. Witnéss first saw the said articles in Lydia Ricker’s house in the possession of the defendant. No effort was ever made by the defendant to conceal the tools, so far as witness knew. After holding the tools about two weeks, he put them in Cohen’s store for sale. Guenzell saw them in Cohen’s store, and claimed and recovered them. Witness’s house was directly opposite Lydia Ricker’s boarding house, on the same street. Defendant carried the tools openly, in his hands, from Lydia Ricker’s house to that of witness.</p>

Tried below before the Hon. J. M. Hall. This conviction was for accepting a bribe to release one John Gable, whom the appellant had arrested under a charge of theft. The penalty assessed by the jury was a term of three years in the penitentiary. L. F. Gable was the first witness for the State. He testified that he lived near Alvarado, Johnson county, Texas, in November, 1886. He was the father of John Gable, who lived with him.

Tried below before the Hon. Eugene Williams. Being convicted in the first degree for the murder of his wife, Eliza Williams, the appellant was awarded the death penalty by the jury. The murder was committed in Falls county, Texas, on the fifth day of March, 1887. A. E. Watson was the first witness for the State. He testified that he lived in Marlin, Falls county, Texas. He got home from his business about dusk—which was about seven o'clock—on the evening of March 5, 1887.

Tried below before the Hon. J. M. Roseborough, County Judge. The conviction was for carrying a pistol, and the penalty assessed was a fine of twenty-five dollars and confinement in the county jail for twenty days.

Tried below before the Hon. H. C. Pleasants. This conviction was for carrying a gun about an election, as that offense is defined by article 163 of the Penal Code. The punishment assessed against the appellant was a fine of one hundred dollars.

Tried below before the Hon. J. M. Roseborough, County Judge. The conviction was for fornication, and the penalty assessed was a fine of fifty dollars against each of the defendants. Frank Baker was the first witness for the State. He testified, that he was deputy marshal of the town of Temple, in Bell county, Texas. He knew Ed. Perigo, who was a man, and Eva Pearl, who was a woman.

Tried below before the Hon. H. T. Berry, County Judge. The charging part of the indictment reads as follows: * * * “That A. Leggett, late of the county of Hood, on or about the fifteenth day of January, 1886, with force and arms, in the county of Hood, State of Texas, cdid then and there unlawfully, knowingly and wilfully, without the consent of the owner thereof, cut down, destroy and carry away trees and timber upon land not his own—to wit, upon land known as the James W.…

Tried below before the Hon. John H. Wharton, County Judge. The opinion states the case. The penalty assessed was a fine of five dollars.

Winchester Kelso. The conviction was for the theft of a horse, and the penalty assessed against the appellant was a term of five years in th_> penitentiary. The opinion fully summarizes the substance of the proof.

Tried below before the Hon. C. J. Chapman, County Judge. The conviction was for simple assault, and the penalty assessed was a fine of twenty-five dollars, The one witness who testified to any overt act of the defendant stated that he saw Ruble Bowman, a child of six years of age, driving a cow through a lane towards the defendant’s house. Bowman and the cow were on the east side of the lane, and Una Foster, the defendant’s child, was on the west side.

Tried below before the Hon. J. C. Randolph. The conviction was for the theft of two head of eattle, the property of E. Burke, and the penalty assessed against the appellant was a term of two years in the penitentiary. Sam Moore was the first witness for the State. He testified that, about October 10, 1887, he and the defendant went to the Miles—otherwise known as the “Picnic”—pasture, in Tom Green county, and got the two cows described in the indictment.

Tried below before the Hon. W. W. Moores, County Judge. This conviction was had upon the first count of an indictment which charged the appellant with wilfully wounding a horse with intent to injure the owner. The penalty imposed was a fine of ten dollars.

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

Tried below before the Hon. George A. McCall. The indictment in this case charged that the appellant, as a guard of the Denton county jail, on the third day of February, 1885, wilfully permitted the escape of one B. F. Paschall, a prisoner then confined in the said jail on the charge of murder. His trial resulted in conviction, and his punishment was assessed at a term of two years in the penitentiary.

Tried below before the Hon. R. P. Conner, County Judge. The conviction in this case was for selling diseased meat and the penalty imposed was a fine of twenty-five dollars. Jesse Perry testified, for the State, in substance, that he hired the defendant, about the first of December, 1887, to help him gather hogs, agreeing to give him one third of the animals gathered.

Tried below before the Hon. Winchester Kelso. The appellant in this case was convicted under an indictment which charged him with conveying into the jail of Edwards county four certain saws and a gun, with intent to aid in the escape of one E. Welch, a prisoner then confined in said jail. The penalty assessed was a term of two years in the penitentiary. W. J. Sansom, sheriff of Edwards county, was the first witness for the State.

Tried below before the Hon. John ST. Henderson. The conviction was for burglary, and the penalty assessed was a term of three years in the penitentiary. The ruling of the court on this appeal does not call for a statement of the facts. It may be said, however, that the testimony clearly established the burglary, and tended strongly to show the complicity of the defendant, but failed to show with certainty whether the offense was committed during the day time or at night.

Tried below •before the Hon. P. M. Stine. The conviction in this case was for the theft of a horse, the property of Albert Carter, and the penalty assessed was a term of five years in the penitentiary. The opinion involves only the validity of the statement of facts.

Tried below before the Hon. H. D. Williams, County Judge. This conviction was for the theft of a ten dollar United States currency note, and the penalty assessed was a fine of fifty dollars and confinement in the county jail for thirty days. The disposition made of this appeal does not demand a statement of the facts proved.

Tried below before the Hon. C. S. Brigance, County Judge. The information jointly charged the appellant and Phil Davis (an adult male), Sinday McIntosh (or McIntyre), Sarah Lowe and Emma Massengil, with an aggravated assault and battery upon one Susan Garrett. The appellant being alone upon trial, was convicted, and her punishment was ássessed at a fine of twenty-five dollars.

Tried below before the Hon. J. C. Eandolph. This conviction, a term of five years in the penitentiary being the penalty assessed against the appellant, was for the theft of a bay mare pony, the property of Miss Alice McLenon, in McCulloch county, Texas, on the thirtieth day of March, 1887. Miss Alice McLenon testified, for the State, that she bought the mare mentioned in the indictment from the defendant in October, 1886.

Tried below before the Hon. C. 8. Brigance, County Judge. The opinion discloses the case. The penalty imposed was a fine of one hundred dollars.

Tried below before the Hon. R. P. Conner, County Judge. The opinion discloses the case. The penalty assessed against the appellant was a fine of ten dollars.

Tried below before the Hon. E. C. Bonham, County Judge. The opinion discloses the nature of the cases. The penalties imposed were fines of ten dollars in each case. The proof shows that the appellants, employed in the same blacksmith shop, shod two certain horses on Sunday, which said horses belonged to and were used by a stage company in the transportation of the United States mails.

Tried below before the Hon. John H. Wharton, County Judge. This conviction was for theft of an overcoat of less value than twenty dollars. The penalty assessed against the appellant was a fine of ten dollars and confinement in the county jail for three days. The opinion sufficiently states the proof.

Tried below before the Hon. W. W. Evans, County Judge. The opinion discloses the case. The penalty assessed against the appellant was a fine of ten dollars.

Tried below before the Hon. A. W. Moursund. The conviction in this case was for the theft of a horse, and the penalty assessed was a term of five years in the penitentiary. F. J. Bagley was the first witness for the State. He testified that in January, 1886, he lost a certain iron gray or bluish gray five year old stallion, branded EC on the left shoulder. He got that animal when a year old, from the defendant, in a trade.

Tried below before the Hon. W. H. Bullock, County Judge. This conviction was for an aggravated assault and battery upon one Tom Miller, and the penalty imposed was a fine of twenty-five dollars. Tom Miller was the first witness for the State. He testified that he and the defendant met on the night of December 1,1886, as guests at a dance given at the house of a Mr. Harris, in Wise county. Whén the dance broke up, the witness went out to gear up Mr. Davenport’s team.

<p>1. Theft—Evidence—Charge of the Court.—It is competent for the-State, on a trial for theft, to prove the contemporaneous theft by the accused of other property than that alleged in the indictment, but it then becomes the duty of the trial court to instruct the jury as to the purpose of such evidence. Omission to so instruct is not, however, fundamental error, nor is it material error, in the absence of exception or requested instructions, unless the defendant’s rights may have been, prejudiced thereby.</p> <p>2. Same—Fact Case.—See the statement of the facts in this case and in Gentry’s case, 24 Texas Court of Appeals, 478, for evidence held sufficient to support a conviction for horse theft.</p>

Tried below before the Hon. J. V. Cockrell. This conviction was for horse theft, and the penalty assessed was a term of five years in the penitentiary. The disposition made of this appeal dispenses with a statement of the case. z

Tried below before the Hon. T. M. Paschal. The conviction was for the theft of one head of neat cattle, the property of Adam Wilson, in Kerr county, Texas, on the. first day of September, 1885. The penalty assessed by the verdict was a term of two years in the penitentiary. William Wharton was the first witness for the State. He testified that on September 1, 1885, he and others, then on a oow hunt, entered a pasture on the West Frio.

Tried below before A. S. Fisher, Esq., Special Judge. The conviction was for the theft of a horse, and the penalty assessed was a term of five years in the penitentiary. The ruling of this court involves only the sufficiency of the indictment, and does not call for a statement of the facts proved.

Tried below before the Hon. J. I. Perkins. The death penalty was assessed against the appellant upon his conviction for murder of the first degree. The charging part of the indictment reads as follows: * * * “that Joe Rather did in Shelby county, in the State of Texas, on the sixth day of January, A. D. 1888, of his malice aforethought express kill and murder Viney Rather, by shooting her with a gun; against the peace,” etc. James Armour was the first witness for the State.

Tried below before the Hon. J. V. CockrelL The conviction in this case was in the first degree for the murder of J. L. Abbott, and the penalty assessed against the appellant was a life term in the penitentiary. A. W. Abbott, the brother of the deceased, was the first witness for the State. He testified that, for three years prior to August 16, 1886, he lived with his brother, the deceased, in the village of Otta, in Cottle county, Texas.

Tried below before the Hon. John N. Wharton, County Judge. The information charged the appellant as an accomplice with one Gassaway in the obstruction of a public road. His trial resulted in conviction, and his punishment was assessed at a fine of fifteen dollars. The record discloses that Gassaway owned the Gillmore survey and had had it fenced for years. He subsequently leased from Watson the Jordan survey and fenced it.

Tried below before the Hon. E. Y. Terral, County Judge. The conviction was for playing cards in a house for retailing-spirituous liquor, and the penalty assessed was a fine of ten dollars. The opinion discloses the case.

<p>Practice—Theft-Possession of Stolen Property, to raise against the accused the presumption of guilt, must be recent, and be unexplained under circumstances calling upon accused for an explanation. Remote possession, however, will not call for an explanation, and will not raise the presumption of guilt. See the opinion for an elaboration of the rule and the statement of the ease for evidence under which it is held that, in the first place, the possession of the stolen property was too remote to demand an explanation from the accused or to raise against him the presumption of guilt, and, in the second place, that the explanation made by the accused was reasonable and was not sufficiently rebutted by the evidence for the State.</p>

<p>Scire Facias—Practice—Case Stated.—Being convicted in the justice’s court for a misdemeanor, the accused appealed to the county court. Subsequently his case was called in the county court, and, upon the State’s motion, the appeal was dismissed because the appeal bond was insufficient in amount, and the accused was remanded to jail until the payment by him of the fine and costs. Four days later the State asked the forfeiture of, and judgment nisi on, the appeal bond. The motion was granted, and judgment nisi rendered against the principal and sureties on the appeal bond. The accused was thereupon imprisoned, and he made affidavit that he was too poor to pay the fine and costs, in order to obtain the benefit of the allowance on his fine and costs at so much per day, as provided by article 816 of the Code of Criminal Procedure. After the lapse of sixteen days he was discharged. When the scire facias was subsequently called, the sureties on the appeal bond answered by setting up the facts stated and alleging that when the appeal to the county court was dismissed the bond beca me functus officio, and that the imprisonment of the accused was a full discharge of the fine and costs. Held: That the answer set up a complete defense, and that the ruling of the trial court striking out the same was error.</p>

Tried below before the Hon. H. P. Jones, County Judge. Simple assault was the offense of which the principal in the appeal bond was adjudged guilty by the trial court. The opinion otherwise discloses the case.

Tried below before the Hon. J.„ C. Randolph. The conviction was for the theft of a horse, and the penalty ■assessed was a term of seven years in the penitentiary. J. L. Vaughan was the first witness for the State. He testified that he lived in Coleman county, Texas. In the latter part of the fall of 1885, the witness put a number of his horses in the pasture of Mr. Starkweather, in Coleman county, which horses he and his employes afterwards looked after.

<p>Practice—Appear Bond.—The appellant in this ease was convicted in the recorder’s court of the city of Port Worth, and was fined five dollars and costs. He executed his appeal bond to the county court in the sum of thirty dollars. Afterwards a bill of costs was taxed against him, which bill and the fine amounted to seventeen and a half dollars, and included the items of twenty-five cents for issuing execution, one dollar and thirty cents for receiving and paying over the fine and costs, and one dollar and a half for the transcript, none of which items had accrued when the appeal bond was executed and approved. The appeal was dismissed by the county court because the bond was insufficient. The contention is that, deducting the amounts not accrued when the bond was approved, the correct fine and costs were but fourteen dollars and forty-five cents, and that the appeal bond was sufficient in amount. Meld that the bond was sufficient, and that the appeal was erroneously dismissed.</p>

Tried below before the Hon. J. C. Randolph. The conviction in this case was for the theft of a horse, the property of Ab. Turner, in McCulloch county, Texas, on the fifteenth day of July, 1884. A term of ten years in the penitentiary was the penalty assessed by the verdict. Ab. Turner was the first witness for the State. He testified that he lived above Camp San Saba, McCulloch county, Texas, in 1884. At that time he owned the horse mentioned in the indictment.

<p>Appeal from the County Court of Erath. Tried below before the Hon. W. W. Moores, County Judge.</p> <p>The opinion discloses the case.</p>

<p>1. Bills of Exception—Practice —The record showing that the bills of exception were approved and filed in term time, although filed more than ten days after the trial, the presumption obtains, in absence of a contrary showing, that they were presented to the judge within the ten days, for his approval.</p> <p>2. Rape—Evidence.—The indictment charged a rape by force. The evidence tended strongly on the one hand to establish rape, and on the other hand tended to establish carnal knowledge with the consent of the female. Under this state of case, the prosecution was permitted to prove that, five years before the alleged rape, the accused told the witness that he had a drug which, administered to a female, would cause her to yield to his carnal passion. Held, that the admission of such • evidence was material error.</p>

<p>1. Murder—Practice—Evidence.—Antecedent menaces, former grudges and quarrels may be proved on a murder trial to show the state of mind and the malice of the accused at the time of the killing. Under this rule the State was properly permitted to prove former difficulties between the accused and the deceased, and the previous threats made by the accused against the deceased.</p> <p>2. Same—Negligent Homicide—Charge op the Court.—Three elements concur to constitute negligent homicide of the second degree: 1. The killing must have occurred in the performance of an illegal act. 2. There must have been an apparent danger of causing the death of the person killed or some other. 3. There must have been no apparent intention to kill, and the homicide must have been the consequence of the act done or attempted to be done. See the opinion and the statement of the case for evidence held to raise the issue of negligent homicide of the second degree, and to have demanded of the trial court a charge upon that issue.</p> <p>3. Same—Impeaching Testimony.—The rule is well settled that a witness may be discredited by proving that on a former occasion he made statements inconsistent with his statements on the trial. The purpose of such contradictory evidence is not, as charged by the court in this case, merely to test the general credibility of the witness, but to attack the truth of his statement on the particular trial, and the jury have the right to consider it for that purpose. See the opinion for á charge on the subject held erroneous.</p>

<p>Appeal from the County Court of Limestone. Tried below before the Hon. L. B. Cobb, County Judge.</p> <p>The opinion discloses the case. The penalty assessed against the appellant was a fine' of five dollars."</p>

<p>, Appeal from the District Court of Guadalupe. Tried below before the Hon. John Ireland, Special Judge.</p> <p>This conviction was for the theft of one head of cattle, the property of James Hutchinson, and the penalty assessed against the appellant was a term of two years in the penitentiary.</p> <p>James Hutchinson was the first witness for the State. He testified that he was the owner of the alleged stolen animal. He thought that the animal was taken from his possession about two years before this trial, but could not be certain that it was so long before. He was certain, however, that this was the third time he had attended court as witness in this case, and his animal was taken, without his consent, about two weeks before he attended court the first time. One morning the witness went to the range to drive his and cows to water. When he reached the water hole he observed that one of his cows was restless and uneasy and would not drink. Witness then observed that her yearling calf was gone. The cow finally left the water hole and started off. Witness left his other cattle at the water hole and followed that cow. She led him to a hollow in the brush, near the Miller spring, and about three-quarters of a mile from Dan Murphy’s house, where the witness found the hide and entrails of a recently slaughtered yearling. Upon examination he found the hide to be that of the yearling of the cow. It was a red and white speckled hide, and was in the witness’s brand—JH. The condition of the hide and entrails indicated that the animal was killed on the day or the night before. Witness took the hide home. He had not seen the yearling for a week before he found the hide. The hide was found by witness on Tuesday of the week that the examining trial of the defendant was held, and about two weeks before the witness first attended this court in connection with this case. Horse tracks led from the hide and entrails, which the witness followed to the public road. The rain fall of that morning had partially obliterated tracks in the road, and witness could not trail the horse any further than to the road. The people of that neighborhood suffered greatly from the drouth that 3*ear. Defendant had cattle on that range, and they watered at the Miller spring.</p> <p>Dan Murphy testified, for the State, that on Wednesday, in April, 1887, he heard that Hutchinson found the hide and entrails of his (Hutchinson’s) yearling near the Miller spring. On the previous Monday the witness was splitting rails on some land he had rented. The defendant rode up and got into a conversation with the witness about religion. The witness then- observed nothing unusual about the defendant or his horse. He had seen the defendant riding about the neighborhood previous to the said Monday. On Tuesday night after the said conversation the witness heard a cow lowing down about his home field fence. Defendant, who lived about three miles from witness’s place, had cattle on the range, and they watered at the Miller spring.</p> <p>Deputy Sheriff George Mayfield testified, for the State, that Justice of the Peace Lowther, on Thursday, April 14, 1887, placed in his hands a warrant to search defendant’s premises for beef belonging to Hutchinson. James Caddell went with witness to serve the warrant. They found defendant in the field and witness read to him the search warrant, which said warrant was also a conditional warrant of arrest. Witness fully explained the said instrument to defendant, who then told witness to go to his house, and that after he, defendant, had returned a certain borrowed ox yoke, he would join witness at the house. Witness replied that he desired the presence of the defendant at the search of the house, and that he must goto the house at once. Before reaching the house the defendant said that he had some fresh beef, and after he got to the house he reached under the table and pulled out a tub covered with a box. Before uncovering it the defendant asked the witness: “Can you tell my beef</p> <p>from Hutchinson’s?” The box was then removed and thirty or forty pounds of fresh beef was exposed to the view of the witness. Witness took it to be the beef of a yearling. Defendant said that he could show the witness the hide of the animal he had killed and reduced to beef. Witness told him that if he could produce the hide it would satisfy him. Defendant started out of the house as if to get the hide, but turned and said that he had sold the hide on the day before to an Indian peddler. The witness then arrested the defendant. Up to this time the defendant was not in arrest. The witness then looked carefully about the defendant’s premises to discover evidences of the recent slaughter of a beef, but could find none. The meat in the tub was salted and a little sour. On his cross examination the witness said that the defendant told him that he did not hang out his meat because the neighborhood was full of hungry negroes, who would, if they saw it, beg, borrow or steal it. Witness did not warn defendant before he made the statements about the meat and hide. James Caddell testified substantially as did the witness Mayfield.</p> <p>John Williams testified, for the State, that he was the man known as the “Indian peddler.” He saw the defendant the first time to know him at the May term, 1887, of this court. . He never bought a hide from the defendant at any time. He was in the negro colony in Guadalupe county in April, 1887, and traded some meal and pans to Lewis King for a very dry hide. Witness did not know defendant’s wife, and could not say that she was or was not present when he traded with King for the hide.</p> <p>The defense offered no evidence.</p>

<p>1. Theft—Evidence—Limitation.—In order to support a conviction for theft of hogs, the evidence must show that the offense was committed within five years next preceding the filing of the indictment. The statement of a witness that the offense was committed in “84” will be understood to mean that it was committed in the year 1884.</p> <p>2. Same—Pact Case.—See the statement of the case for evidence which, though conflicting, is held sufficient to support a conviction for theft.</p> <p>3. Same—Charge of the Court—See the opinion for a charge of the court upon the province of the jury with respect to the weight of evidence and the credibility of witnesses, held erroneous, because it omits to instruct upon the rules applicable to impeachment of witnesses.</p>

<p>1. Theft—Evidence.—Conspiracy to commit crime can not be proved by one of the conspirators, but must be proved aliunde. See the opinion for evidence held insufficient to establish a conspiracy to steal cattle.</p> <p>2. Same—Declarations—Case Overruled.—The declarations of a conspirator are not admissible in evidence against his confederate, unless they were made pending the conspiracy, and before the same was consummated, and were in furtherance of the common design. See the opinion for the declarations of a confederate held to have been improperly admitted in evidence. And note that, upon this question, the case of Menges v. The State, 21 Texas Court of Appeals, 413, is overruled.</p> <p>8. Same—Pact Case.—See the opinion in this case, and the statement of the case in Menges v. The State, 21 Texas Court of Appeals, 413, for evidence held insufficient to support a conviction for cattle theft.</p>

<p>Malicious Mischief—Indictment.—This prosecution, for injuring and destroying a set of buggy harness, was based upon article 683 of the Penal Code. To come within the provisions of that article, the property injured or destroyed must be an agricultural product or property; within - which description a set of buggy harness does not come; wherefore the motion to quash the indictment should have prevailed.</p>

<p>Practice—Jeopardy—Waiver.—It is a well settled rule that, “ if a defendant moves in arrest of judgment, or applies to a court to vacate a judgment already rendered, for any cause and his motion prevails, he will be presumed to waive any objection to being put a second time in jeopardy, and so may ordinarily be tried anew.” See the opinion for a case to which the rule applies.</p>

<p>Appeal from the County Court of Stephens. Tried below before the Hon. J. C. Shepard, County Judge.</p> <p>The conviction in this case was for an aggravated assault and battery upon a school girl, the aggravation alleged being that the appellant was an adult male and the girl a female. The penalty assessed by the verdict was a fine of fifty dollars and confinement in the county jail for thirty days.</p> <p>The young lady named as the injured party was the first witness for the State. She testified that she was about fourteen years old, and lived in the Caddo neighborhood, in Stephens county, Texas. The defendant taught the school in that neighborhood in December, 1886, and the witness was one of the-scholars attending that school. That school was kept in what was known as the Riddle school house. All, or nearly all, of the-pupils, took their dinners to school with them, witness among-the number. When school was dismissed at noon on December 5, 1886, the witness and a number of girls repaired to a customary place outside of the school house. After eating their dinner the witness and some of the girls went to the creek, leaving others of the girls behind. The witness remained at the creek but' a minute, and, leaving her companions there, returned to-the school house to join the girls left behind. When she got to the school house door, the witness saw the defendant sitting behind his desk in the west end of the room. When he saw witness he called her to him. When witness reached his desk he asked witness where the other girls were. Witness replied that they were coming from the creek. The defendant then reached over his desk, seized witness’s clothing in the region of the abdomen, and asked her to unbutton her drawers. The witness plainly felt the pressure of his hand on her person. She-released herself from his grasp, seized a piece of wood, and told defendant that if he touched her again she would knock his head off.</p> <p>Cross examined, the witness said that the school room had three windows on each side and two on one end, the door being at the south end. The house was situated in an open prairie-valley, and within twenty-five or thirty yards of a public road. The creek, to which a path led, was about one hundred and fifty yards from the school building. The play grounds of the boys and girls were separate, that of the girls being about fifty yards from the school house and about thirty yards from the path which led from the school house to the creek. The girls whom the witness-expected to find at the school house on her return from the creek on the said December 5, were not there when she got back. Witness left the school room immediately after the insult offered her by the defendant. About the time she reached the-outside one of the girls called to her from the girl’s play ground, to bring the ball from the school room. Witness returned to-the room, got the ball and took it to the play ground. No person, save the witness and defendant, was in the school room at the time that defendant insulted the witness.</p> <p>Another of the female scholars testified that she was attending the defendant’s school at the time of this trouble, which occurred on Tuesday, early in December, 1886. The witness’s first intimation of any disagreeable occurrence was when the girl in question reached the play ground from the school room. Her appearance indicated that something had aroused her anger. Witness asked her what had occurred, but she made no reply. The defendant often joined the pupils in their games at play time, sometimes playing with the girls and sometimes with the boys. Among the games he taught the girls to play was one he called “How the Indians whip their wives.” He often pulled the hair of the girls, and on one occasion he proposed to “measure arms with the girls.” On another occasion he lay at length on a bench and challenged the girls to ke'ep him down.</p> <p>Cross examined, the witness stated that, on the day of the alleged insult, she and some of the other girls ate their dinners just outside of the school house. After finishing dinner the witness and nearly all of the girls went to the creek, leaving not more than eight or ten girls at the school house. The girl in question remained at the creek but a short time, and then went back toward the school house, traveling the usual path, and meeting the other girls going toward the creek, about a hundred yards from the school house. The witness did not know whether or not any of the school girls stayed at the school house throughout the noon intermission. On her return from the creek the witness did not go direct to the school house, but turned off to the girls’ play ground, which was about thirty yards distant from the path and about fifty yards from the school house. The girl in question went on to the school house. It was thirty minutes from the time that the latter left the creek until she rejoined the girls on the play ground. Witness saw no person about the school room while the said girl was there, just before she came to the play ground. When school was dismissed on that evening the defendant or some other person asked the said girl why she was taking all of her books home. She replied that she was going to quit school, and ’would attend such a school no longer, and defendant told her to behave herself. The defendant often joined the girls in their games, beginning early in the session. He first showed the girls “How the Indians whip their wives” about the beginning of the session, and showed them other games as the session advanced. The girls, including witness, often invited the defendant to join them in their games at play time. Witness heard of no objection to the defendant playing with the girls until this trouble arose. When that trouble arose the school was closed, which was about a month and a half sooner than it was intended it should close. The said girl played with the other pupils at the evening recess after the alleged insult.</p> <p>J. H. Rives testified, for the State, that he was the father of the prosecutrix, and the uncle of Miss Ophelia Richardson. The witness’s said daughter attended the school taught by the defendant during the winter of 1886. The original contract under which the defendant taught the neighborhood school expired in November, 1886, but as a balance of school funds remained in the treasury to the credit of the school community, the defendant was employed to continue the school until that balance was exhausted, and he was teaching under that contract when this trouble occurred, which was on December 5, 1886. Returning heme from school on the evening of the said December 5, the witness’s daughter passed the witness where he was repairing a gate, and went into the house without speaking to the witness. She brought her books home with her and quit school. On his way to Ranger the next morning, the witness met the defendant, who was on his way to the school house. Witness told defendant that he had something to say to him, and invited him to walk a short distance with him. After walking about thirty steps, they stopped, and witness told defendant that he, witness, did not like the way he, defendant, was conducting the school. Defendant replied that he was glad the witness had come to him; that, when people disapproved of his manner of conducting his school, he wanted them to come to him about it; that he knew he had been conducting the school somewhat loosely, but that if he whipped pupils, some of his patrons objected, and that if he did not whip them, others objected that his discipline was too loose. The witness replied that he was not alluding to his general discipline, but that his daughter brought him some news on the evening before which he did not like, and that he did not approve of the defendant’s attempt to meddle with his daughter, and that school must stop at once. Defendant replied that the girl was mistaken, and misunderstood him, and appealed to witness, who was one of the trustees of the school, to permit him to continue the school. Witness declined, and told defendant that the school must close that very day. Defendant then said that he was very sorry; that he was willing to kneel down there and then and pray with witness, and again appealed to witness to permit him to continue his school. Witness refused to be prayed with by defendant, and again told defendant that he must close the school that day; that, if he did not close it, it would be closed for him, and that, unless it was closed, there would be trouble, and bad trouble. Witness then went on to Banger, and defendant went on towards the school house. The school closed on that day.</p> <p>Thomas Borris testified, for the State, that in December, 1886, he was a trustee of a school community in the northeastern part of Stephens county. During the said month of December the defendant came into that community and applied for that school. He gave, as the reason for the closing of the school recently taught by him at the Biddle school house in the Caddo neighborhood, that some of his patrons were unable to clothe their children properly for the extreme cold weather, and the trustees thought it best, on that account, to discontinue the school.</p> <p>J. D. Young testified as did Borris, and, in addition, that another reason given by defendant for the closing of the Caddo school was that the balance of the school fund to the credit of the Caddo community was too small to justify a further continuance of that school.</p> <p>GL W. Gill, testifying for the State, denied that he ever told the defendant that the Caddo school had better be closed on account of the thinly clad condition of some of the children. The witness was a trustee of the Caddo school, but did not know why the school was closed. Something was said about the thin clothing of some of the children, when the defendant was reemployed to teach out the unexpended balance of the community’s school fund.</p> <p>Trustee H. E. Walker testified substantially as did Mr. Gill.</p> <p>The mother of the alleged injured girl testified, for the State, that when the latter got home from school on the evening of December o, 1886, she appeared to be much troubled and mortified. She was very fond of school and was a hard student.</p> <p>The State closed.</p> <p>James Bradford, the nephew of the defendant, was his first witness. He testified that he attended the defendant’s school in December, 1886, and was at school on the fifth day of that month, when this offense was alleged to have been committed. The witness was unwell on that day, and spent the entire noon or dinner hour in the school room. The defendant was not in the school room during that hour from the time that school was dismissed for dinner until it was taken up again. He spent that hour on the boys’ play ground. All of the school girls went to the creek after eating dinner, and none of them came back to the school room until “books” was called. The girl in question played and romped with the other girls on the playground at the evening recess of that day.</p> <p>Orville Bradford, another nephew and pupil of the defendant, testified, in his behalf, that the defendant spent the entire noon hour of the said day playing base ball with the boys on their play ground, and was not in the school room during that hour.</p> <p>Dick Richardson was the next witness for the defense. He stated that he had a conversation with his uncle, J. H. Rives, a few days after the Caddo school closed, about the closing of the school. Mr. Rives told him that he broke up the school because of the conduct of the defendant towards his daughter, and told him of his conversation with the defendant on the road substantially as he related it on the stand.</p> <p>The defense here introduced the following:</p> <p>CERTIFICATE.</p> <p>Breckinridge, Texas, Jan’y 26,1887.</p> <p>.Whereas, the report is now prevailing that Professor A. S. Bradford, during a term of school taught by him in my community, made improper advances to my daughter. I hereby certify that I have examined into the report and pronounce it untrue.</p> <p>(Signed) J. H. Rives.</p> <p>To this certificate appears that of the county judge of Stephens county, certifying that J. H. Rives acknowledged the execution of the said document before him. In connection with this certificate, the defense read in evidence a letter to the defendant from and signed by B. B. Greenwood, county attorney of Stephens county, enclosing the said certificate, and asking the defendant if the certificate was sufficient and satisfactory.</p> <p>The defense closing, the State recalled J. H. Rives to explain the certificate signed by him and introduced in evidence by the defense. He stated that he did not sign that certificate to exonerate the defendant from the charge of assault upon his daughter. The witness was told that the report was being circulated throughout the neighborhood that the defendant prevailed upon his daughter to unbutton her drawers for him, and that he, defendant, then fondled her private parts with his hand, and that it was that report that the said certificate was designed to correct. The witness stated that County Attorney Greenwood first prepared a certificate similar to that in evidence, which concluded with the words: “and I hereby exonerate A. S. Bradford,” which the witness refused to sign. He stated further that, in the presence of Mr. Greenwood and of County Judge Shepard, at the time he signed the above certificate, he stated that he intended, in the interest of peace, to deny the report that his daughter unbuttoned her drawers at the request of defendant, and that defendant then fondled her private parts with his hand, but that he did not intend to deny the charge made against defendant by his daughter.</p> <p>B. B. Greenwood, county attorney of Stephens county, testified, for the State, that defendant came to him and told him that a report damaging to him, and reflecting upon his conduct toward one of Mr. Rives’s daughters, was in circulation, and that he wanted witness to straighten it up for him. After conferring with J. H. Rives the witness prepared the certificate in evidence,- which Rives signed, and enclosed it in a letter to defendant, asking him if it was satisfactory. Before writing the certificate in evidence the witness wrote a similar one concluding with the words: “and I hereby exonerate A. S. Bradford,” which Rives peremptorily refused to sign.</p> <p>Judge J. S. Shepard testified, for the State, that he was present when Rives signed the certificate in evidence, and heard Rives say that it was his purpose to deny in that certificate the report (and no other) that 'defendant induced the girl to unbutton' her drawers, and that he, defendant, then fondled her privates.</p>

Tried below before the Hon. William Kennedy. The indictment charged the theft of four tons of coal, valued at more than twenty dollars. The conviction was for the fraudulent taking of coal of a value less than twenty dollars, and the punishment assessed against the appellant was confinement in the county jail for twenty-four hours, and a fine in the sum of two hundred and fifty dollars. The rulings of the court do not involve the facts proved on the trial.

Tried below before the Hon. Eugene Williams. The conviction was for the embezzlement of a mule, and the penalty assessed against the appellant was a term of five years in the penitentiary. E. J. Ashburn was the first witness for the State. He testified that he knew the defendant, who was a citizen of Wharton county, Texas.' Witness lived in McLennan county.

Tried below before the Hon. J. A. B. Putman. This conviction was in the second degree for the murder of R. S. Browning, and the penalty assessed was a term of eight years in the penitentiary. Frank Woodson was the first witness for the State. He testified that he knew the deceased who died at his, witness’s, house on the morning of May 22, 1885.

Tried below before the Hon. J. I. Perkins. The conviction was for perjury, and the penalty assessed against the appellant was a term of five years in the penitentiary. The first evidence introduced by the State was the indictment returned by the grand jury of Shelby county, on the eleventh day of July,1885, by which indictment one Jack Hall and Jube Parkey were charged with the murder of Willis McAdams, on the tenth day of December, 1883.

<p>Appeal from the District Court of Milam. Tried below before ■ the Hon. John N. Henderson.</p> <p>These were separate convictions for the theft of the same animal—the appellants being separately indicted for the same offense. The penalty assessed against McFarland was a term of two years in the penitentiary, and that assessed against Bryant was a term of five years in the penitentiary.</p> <p>The opinion summarizes the material evidence adduced on the trial. Bryant’s application for continuance set up that he would prove by the absent witness May that he, May, spent the night of the day on which the said Bryant and McFarland were seen driving the animal named in the indictment, at the house of the said Bryant, and that no animal was killed on Bryant’s place during that night; that one Joe Evans came to Bryant’s house on the next morning, and that soon afterward the witness and Bryant and Evans left the house together, and that there was no hide of any kind on Bryant’s fence at that time; that Evans soon separated from witness and Bryant, and that witness and Bryant did not return to Bryant’s house until late that evening, when they for the first time discovered the hide of the animal on the fence; that Bryant at once expressed surprise thereat and disclaimed any knowledge of how or when or by whom the hide was placed there.</p>

Tried below before the Hon. C. S. Brigance, County Judge, The conviction in this case was for keeping a retail liquor saloon open at a voting precinct on a day of election. A fine of one hundred dollars was the penalty imposed. At a former hearing of this appeal, the judgment of the court below was affirmed, and it will be found reported on page 596 of this vol, ume.