Volume 26 — Texas Court of Appeals Reports

Tried below before the Hon. A. W. Moursund. The conviction in this case was in the second degree for the murder of T. H. Nowlin, in San Saba county, Texas, on the fifth day of April, 1888. The penalty assessed by the jury was a term of twenty-four years in the penitentiary. Lee Peck was the first witness for the State. He testified that he lived in Llano county, Texas, and was well acquainted with Thomas H. Nowlin at the time that the latter was killed by the defendant.

Tried below before the Hon. Eugene Williams. This was a conviction for perjury, and the penalty assessed was a term of five years in the penitentiary. The proof developed on this trial is the same in substance as that developed on the former trial of the appellant, which will be found fully set forth in the report of the former appeal, beginning on page 568 of the twenty-third volume of these Reports.

<p>1. Justifiable Homicide in Defense of Property— Charge of the Court.—The first of two rules deducible from the statutes (Penal Code, arts. 572, 575). defining justifiable homicide in the defense of property, may be stated as follows: If the attack upon the property is such as to produce in the mind of the owner (or person interfering) a reasonable-apprehension or fear of dea.ih or serious bodily harm to the owner or person interfering, either may act at once, without resorting to other means to prevent the attack or protect the property. But if the property of the owner is attacked, and not in such manner as to endanger life, etc., every effort must be made to repel the aggression in order to justify the homicide. See the opinion for a charge of the court upon the doctrine held sufficient.</p> <p>2. Same.—But if, as in this ease, the deceased undertook to seize and take the property of the accused in an unlawful manner, and in so doing aroused the passion of tho accused to such an extent as to render' his mind incapable of cool reflection, and to rebut the presumption of malice, the killing would be manslaughter only, though the accused did not resort to all other means to prevent the seizure of the property. Note that the charge of the court does not submit this phase of case, though made by the proof, wherefore it is insufficient and erroneous.</p> <p>3. Murder of the First Degree—Fact Case.—See the statement of the case for evidence held insufficient to support a conviction for murder of the first degree.</p>

Tried below before the Hon. W. P. McLean. The opinion discloses the case. The opinion was rendered upon a motion for rehearing, the judgment having been affirmed orally upon the original hearing of the appeal.

Tried below before the Hon. George A. McCall. The indictment in this case was presented in the district court of Montague county, on the seventh day of October, 1885. It charged .that the appellant did, in Montague county, Texas,, on the second day of July, 1885, willfully and of his malice aforethought kill and murder one J. W. Kerr by shooting him with a pistol.

<p>1. Practice .—Injunction is the proper remedy to prevent proceedings on a satisfied judgment.</p> <p>3. Same—Commissions.—A county attorney’s right to commissions on forfeitures (or fines) accrues, and the said commissions are payable to him only when the said forfeitures (or fines) are collected and out of the money so collected. Though the forfeiture or fine was not collected because the same was remitted by the Governor, still the county attorney is not entitled to commissions on it.</p> <p>8. Same—Parties to Suit—Oase Stated.—Smith was fined in the county court in the sum of seven hundred and seven dollars, of which amount all but two hundred dollars was subsequently remitted by the Governor, and Smith paid the two hundred dollars and costs. The county attorney, claiming commission on the amount of the fine remitted, sued out an execution on the judgment and placed it in the hands of the sheriff, whereupon Smith sued out a writ of injunction to restrain the collection of the amount so claimed by the county attorney as commission. The injunction was granted, but was subsequently dissolved upon the motion of the defendant in error. Held, that the State was not a party to the suit; that it was purely a proceeding against the county attorney and the sheriff, and that the court erred in dissolving the injunction.</p>

<p>1. Theft—Charge op the Court.—To inculpate an accused as a principal offender in theft, the State must show that he had some connection with or complicity in the taking of the property. It does not suffice to prove that, subsequent to the taking, and without complicity therein, but with knowledge that the property had been stolen, he aided the taker to dispose of it, or fraudulently disposed of it himself. See the opinion for a summary of proof which demanded of the trial court a charge in harmony with this rule.</p> <p>3. Same—Evidence—Bill of Sale.—See the opinion for a state of ease whereunder the trial court erroneously refused to admit in evidence a bill of sale conveying to the accused the animal described in the indictment.</p> <p>3. Same.—See the statement of the case for evidence held insufficient to supx>ort a conviction for theft, because inadequate to establish the guilty participation of the accused in the taking of the animal.</p>

Tried below before the Hon. J. M. Hall. The conviction in this case was in the second degree for the murder of Jonas H. Land, in Hill county, Texas, on the fifth day of March, 1883. The penalty assessed by the jury was a term of nine years in the penitentiary. Mrs. Emma Beasley was the first witness for the State. She testified that she was the daughter of Jonas H. Land, deceased, and that she had married since his death. She knew the defendant, whom she pointed out in court.

<p>Appeal from the District Court of Johnson. Tried below before the Hon. J. M. Hall.</p> <p>The conviction in this case was for the theft of one head of ■cattle, the property of Riley Fields, in Johnson county, Texas, on the twentieth day of April, 1888. The penalty assessed against the appellant was a term of two years in the penitentiary.</p> <p>Riley Fields was the first witness for the State. He testified, that he lived in the northeast portion of Johnson county, about two and a half miles from the Ellis county line, and about five-miles from the Tarrant county line. He had lived in that neighborhood for thirty years, during which period he had followed the occupation of a cattle raiser. His brand was RF on-the left hip, and his mark a smooth crop and swallow fork in the left ear, and an underbit in the right ear. About April 15, 1888, the witness lost a certain red roan cow. She was a bob tailed animal, about nine years old, and had lost her left eye. That animal, which had been raised by witness, and which was-in his mark and brand, wa,s taken from his pasture in Johnson county without his knowledge or consent. Witness had known the defendant for many years, and had often seen the defendant riding through his said pasture. He was not able to affirm that the defendant knew his, the witness’s, mark and brand. Witness missed his said cow from the said pasture, which was about one hundred and sixty acres in extent, between the fifteenth and twentieth of April, 1888. He went at once to Fort Worth in search of her. Failing to find her, he returned to Johnson county, and went to the butcher pens of B. F. Walcott, near Alvarado, where he found her hide, which he fully iden ified by the color, tail, ears and brand. Witness knew all of the old settlers in Johnson county, and was well acquainted in the section of the county in which he lived. He had never known a man named Henry Estick.</p> <p>B. F. Walcott was the next witness for the State. He testified that he was" a butcher by trade, and plied his avocation in the town of Alvarado, Johnson county, Texas. Between ten and eleven o’clock, on the morning of April 17, 1888, the defendant, whom the witness was well acquainted with, brought to the witness’s slaughter pen, and sold to him, a certain red roan cow, branded RF on the left hip, marked with a smooth crop and swallow fork in the left ear and an underbit in the right ear, blind in the left eye and bob tailed. Witness butchered the said cow and hung the hide on his pen fence. A few days later, Riley Fields came to witness’s pen and claimed the hide. Defendant did not tell witness where he got the cow when he sold her to witness, nor did witness ask him. Witness-was well acquainted in Johnson county. He had never known a man named Henry Estick.</p> <p>J. B. Bradley testified, for the State, that he had lived about five miles below the house of Riley Fields for thirty years, and was well acquainted throughout Johnson county. He had never known a man named Henry Estick. The witness had known the defendant for many years. Defendant was raised near Cross Timbers, in Johnson county.</p> <p>The remaining five or six witnesses, all of them for the State, testified substantially as did the witness Bradley. One of them, the witness Rae, testified in addition that he lived one and a half miles from Riley Fields’s place, and was well acquainted with his stock; that defendant came to his (witness’s) place about the middle of February, for the advertised purpose of standing a horse and a jack, which however he did not do, and left about the middle of March; that he often saw defendant riding through Fields’s pasture, but was unable to say whether or not he knew Fields’s mark and brand.</p> <p>The motion for continuance alleged the absence of Henry Estick, a resident of Tarrant county, and Ben Shook and Mrs. Fannie Good, residents of Johnson county; that the defendant could prove by the first of said absent witnesses that he, the said absent Estick. sold the animal described in the indictment to the defendant, and was paid therefor by the defendant; and that by the absent witnesses Shook and Good, the defendant would prove that when he took possession of the animal, he did so openly by virtue of his said purchase from said Estick, and so claimed and asserted.</p>

<p>1. Agency—Embezzlement—Evidence—Charge of the Court.—The proof in this case clearly establishing the agency of the accused with respect to the alleged embezzled property, the charge of the trial court upon the subject (for which see the statement of the case) was correct.</p> <p>3. Evidence—Bill of Exceptions.—The principal witness for the prosecution was asked by the defense, on cross examination, if she was not the mistress of the alleged injured party, which question was not allowed by the trial court. The bill of exceptions reserved to this ruling fails to show that the accused intended or expected to elicit an affirmative answer, and was, therefore, insufficient and too indefinite to bring the question in review.</p> <p>3. Standard of Value—Charge of the Court.—Second hand c'o'hing has no such market value as will represent an actu-tl value in determining the grade of the offense of theft of such property. Nor can the rale obtaining among dealeis in second hand clothing to sell for fifty per cent less than original cost” furnish anything like a just standard of value. See the statement of the case for a charge of the court held, under this rule, to be correct.</p> <p>4 Same—Privilege of Counsel.—See the opinion for remarks used in argument by the counsel-for the State and held to have been an abuse of the privilege of argument, and for a charge upon the question requested by the defense, the refusal to give which is material error.</p>

<p>Local Option Law—Penalty—Charge op the Ootjht—Case Ap proved.—See the opinion for an approval of the ruling of this court in Dawson’s case, 25 Texas Court of Appeals, 670, to the effect that the act of March 30, 1887, amendatory of the local option law, can not affect those localities wherein the law was in operation at the time of the adoption of the said amendment, and that it can affect only those localities wherein the local option law was adopted subsequent to the date at which the said amendment took effect. This conviction was had in W. county, wherein the local option law was in force prior to tbe adoption of the amendatory act of March 30, 1887, notwithstanding which the trial court gave in charge to the jury the penalty prescribed by the said amendatory act, instead of that prescribed by the general law. Held, error.</p>

<p>Appeal from the District Court of San Saba. Tried below before the Hon. A. W. Moursund.</p> <p>The opinion sufficiently discloses the case.</p>

Tried below before the Hon. A. W. Moursund. The opinion discloses the cases. Five hundred dollars was the amount of the bail involved.

<p>Practice—Appeal Bond.—An appeal bond conditioned that the appellant will “pay all fines and costs in the county court, and all costs in the recorder’s court,” conforms to the statute which provides that the appellant “shall pay such fine and cost as shall be adjudged against him in the county court, as well as other cost that may have been adjudged against him in the court below.”</p>

Tried below before the Hon. D. H. Scott. Under, an indictment charging him with an assault with intent to murder one Clain Davis, the appellant was convicted of aggravated assault, and his punishment was assessed at a fine of fifty dollars and confinement in the county jail for thirty. days. Clain Davis was the first witness for the State. He testified, in substance, that he went to the town of Annona, in Red River county.

Tried below before the Hon; George McCormick. The conviction in this case was for assault with intent to murder one Crecencio Garete, and the penalty assessed was a term of two years in the penitentiary. After laying the predicate described in the opinion, the State first introduced in evidence the written testimony of Crecencio Garete, as delivered upon the examining trial.

Tried below before the Hon. E. D. McLellan. The conviction was for illegal voting, and the penalty assessed j was a term of two years in the penitentiary.

Tried below before the Hon. E. L. Gregg, County Judge. The conviction was for unlawfully carrying a pistol, and the penalty assessed was a fine of twenty-five dollars, and twenty •days in the county jail.

Tried below before the Hon. M. J. Whitman, County Judge. This conviction was for a violation of the local option law, and the penalty assessed was a fine of twenty-five dollars. The ruling of the court involves no question of fact.

<p>Appeal from the County Court of Anderson. Tried below before the Hon. John N. Link, County Judge.</p> <p>This conviction was for the false imprisonment of one M. B. Wolverton, the indictments impleading W. G. McClure and J. A. Kelley jointly with the appellant. This appeal, however, involves only the appellant, against whom a fine of twenty-five dollars was assessed as punishment.</p> <p>M. B. Wolverton, the State’s only witness, testified that, being in Palestine with his wagon, he bought an empty molasses barrel from the store of W. M. Lacy, of Prank Lacy, one of the clerks, for one dollar and fifty cents. That afterward, and further up the street, he went into another store, leaving the wagon and the barrel in it. When he came back, and as he was getting in the wagon, defendant, another of Lacy’s clerks, came up and said he wanted the barrel; that it did not belong to Lacy when sold, but had before been sold to a Mr. Graham, and that Frank Lacy had no right to sell it; and he asked witness to drive back to the store and Mr. W. M. Lacy would return the money paid for it. Witness told him that he had bought the barrel and paid for it, and declined to drive back to Lacy’s store or to give up the barrel at all. Defendant replied that he would have it anyhow, whether witness was willing or not, and that witness could not take it out of town, and came up to the rear end of the wagon, where the barrel was, and started to take it out, and witness drew back his whip, holding it by the small end, and told him that if he attempted to take the barrel out that witness would knock him down, At this time witness, looking over the way, saw defendant, John A. Kelley, who was city marshal, and W. G. McClure, defendant’s brother, and a policeman, and called to Kelley to come to where witness and George were. While witness’s attention was attracted to these parties, defendant jerked the barrel out of witness’s wagon, breaking the hind board, and rolled it down the street toward Lacy’s store. When he jerked it out, W. G. McClure hallooed to George and said: “God d—n’ him, George; whip the-out of him.” Kelley and W. G. McClure then came up to witness, and witness told Kelley that he had bought the barrel from Lacy and paid for it, and that defendant had come and robbed him of it. Kelley replied: “You have got to go with me back to Lacy’s store and settle this thing, and you can not leave this town until you do.” Witness thought he was under arrest, and, so believing, he went with Kelley and W. G. McClure back to Lacy’s store. When they got back there witness told the parties that but for the officers about he could handle George McClure. After some talk he accepted one dollar and fifty cents from Lacy, and then Kelley told him to get out of the store and go home. About fifteen minutes afterward he saw Kelley on the street and told him that he ought not to have arrested him and treated him as he had. Kelley replied that he did not arrest witness, and that he had acted only to keep down trouble all around. When defendant was attempting to get the barrel witness had to step back over the seat to prevent it, and could not protect the barrel and drive the team at the same time, and these things detained him, and in going back to the store he was further detained.</p> <p>Frank Lacy testified, for defendant, that when he sold the barrel to Wolverton he told Wolverton that he did not know whether the barrel had been sold or not, and if it had, the sale to him, Wolverton, would not count.</p> <p>W. M. Lacy testified, for the defense, that the barrel in question was sold to Graham previous to its sale to Wolverton, of which sale Frank Lacy was not informed. Graham called for his barrel shortly after Wolverton bought and took it away. The witness then instructed defendant to overtake Wolverton, who would doubtless return the barrel for the purchase money when the circumstances were explained to him. Defendant soon returned, rolling the barrel. A few minutes later, Wolverton, Kelley and W. G. McClure arrived. After some talk, Wolverton accepted the return of his dollar and a half and left with Kelley. Kelley did not order Wolverton out of the store, or to go home, or otherwise treat him harshly, so far as the witness heard or observed.</p> <p>The special instruction referred to in the first head note of this report reads as follows: “ Where the means used are threats they must be such as are calculated to operate upon the person threatened and inspire a just fear of some injury to his person or property, and must be sufficient to intimidate and prevent such person from moving beyond the bounds in which he was detained, if he was detained at all. A mere contest and wordy altercation between two persons for the possession of an article of personal property, each in good faith claiming the right thereto, and in which the party in possession and sought to be dispossessed voluntarily and of his own accord remained at the place of altercation for the purpose of better protecting his possession, and where he was not detained or sought to be detained by the other, would not constitute false imprisonment. No person disputing the right of possession of another of an article of personal property, and going into a struggle to fight for it, is, when his object is the possession of the property and not the detention or restraining of the person so in the possession, guilty of false imprisonment; so that if you find that G. E. McClure disputed the right of possession of the barrel with Wolverton and entered into a contest with him for the possession of the same, and his object was the possession of the barrel and not the detention of Wolverton, and that Wolverton’s person was not by him either detained or sought to be detained, you will find him not guilty, and this, though it should appear that Wolverton of his own free will remained upon the ground for the purpose of better asserting his claim to the barrel.”</p> <p>The motion for new trial raised the questions discussed in the opinion.</p>

Tried below before the Hon. William Kennedy. The conviction in this case was for robbery, and the penalty assessed was a term of five years in the penitentiary. The record is without a valid statement of facts.

Tried below before the Hon. John N. Henderson. This conviction was for an assault with intent to murder one Henry Harrison, in Robertson county, Texas, on the tenth day of January, 1885. The penalty assessed was a term of three years in the penitentiary. Henry Harrison was the first witness for the State. He testified that he and the defendant lived on Horatio Hearne’s place, in Robertson county, Texas, tbeir respective homes being about one hundred yards apart.

Tried below before the Hon. J. C. Russell. The appellant was convicted in the first degree and awarded the death penalty, for the murder of Theodore Marx, in Hidalgo county, Texas, on the tenth day of December, 1887. ■ The record brings up no statement of the facts proved on the trial.

Tried below before the Hon. P. M. Stine. The conviction in this case was for the theft of two horses, and a term of seven years in the penitentiary was the punishment assessed against the appellant. One of the horses was alleged to be the property of Albert Carter, and the other to be the property of Margaret Wages. Albert Carter was the first witness for the State. He testified that he lived in the town of Vernon, Wilbarger county, Texas.

Tried below before the Hon. T. H. Conner. The conviction in this case was for the theft of a cow, the property of J. S. Holloway, in Eastland county, Texas, on the fifteenth day of January, 1888. The penalty assessed against the appellant was a term of two years in the penitentiary. J. S. Holloway was the first witness for the State.

<p>Appeal from the District Court of Liberty. Tried below before the Hon. L. B. Hightower.</p> <p>The conviction in this case was for the theft of a eow, the indictment alleging both the possession and ownership to be in J. F. Skinner. The penalty assessed was a term of two years in the penitentiary.</p> <p>J. F. Skinner was the first witness for the State. He testified that for four or five years preceding this trial he had lived in Lampasas county. He never at any time gave defendant his consent to take any of his cattle.</p> <p>On cross examination, the witness stated that Tom Brewer, at the time of this offense, and for four years before, had charge of a small stock of gentle cattle which belonged to witness, and which ranged near said Brewer’s place in Liberty county. Brewer’s authority extended only to milking the cows, marking and branding the calves, and to generally looking after the cattle. He had no authority to sell or dispose of any of them. After the arrest of defendant, witness went to Liberty county to see about his cattle.. He missed an animal which corresponded with the animal hereinafter described by the witness Jake Williams. That animal was a heifer when witness last saw her.</p> <p>Jake Williams testified, for the State, that he went into the woods, near his house, in Liberty county, about an hour and a half before sun down on the evening of December 27, 1887, and surprised the defendant in the act of skinning and cutting upa cow which had been recently killed, and which, by the flesh mai’ks and marks and brand, witness knew to belong to J. F. Skinner. When he first discovered the witness, the defendant covered him with a shotgun. Witness said to him: “Hold up! Don’t point that gun at me.” Defendant replied: “You won’t give me away, will you?” Witness replied that he had nothing to do with it. He then went to Tom Brewer, who had charge of Skinner’s cattle, and reported the matter to him. About dark on that night witness piloted Sheriff Morris and others to the place where the cow had been killed. They found the carcass, a part of one quarter having been removed. The-brand was cut from the hide, and the ears had been cut off and taken away. The animal described was about five years old. She had brown sides and a striped back, and was an animal that Brewer had milked until a short time before she was killed.</p> <p>Sheriff Morris, for the State, testified to finding the carcass of the cow at the place and in the condition described by Jake Williams. He then went to defendant’s house and searched it for fresh meat, but failed to find any on the premises. Some of the posse, however, found some in a thicket near the house. Witness, then went to the place where the Farmers Alliance was in session, and arrested defendant. This occurred on the night of the day on which Jake Williams claimed to have seen defendant skinning the cow. The State closed.</p> <p>Haney Jones testified, for the defense, that she visited the house of the State’s witness Jake Williams in May, 1887, and that in the course of a conversation about a corn transaction, between himself and defendant, the said Jake Williams said, in, her presence and hearing, that he would get his revenge on the defendant.</p> <p>Aaron Bullock testified, for the defense, that, while squirrel hunting on the evening of the alleged detection by Jake Williams of defendant in the act of skinning the cow, he came upon the defendant cutting poles near his house. He hunted the woods within the hearing of defendant’s axe until about an hour before sun down, during which time he heard no other gun shots than his own. From the woods, at the hour mentioned—an hour before sun down—he went to defendant’s house. Defendant soon arrived but brought no fresh beef. He, defendant, had no gun with him in the woods when witness saw him. Witness and defendant remained at defendant’s house until after supper, when defendant left to ■attend a meeting of the Farmers Alliance.</p> <p>Tom Brewer, testifying for the defense, corroborated the witness, Skinner, as to the extent of his authority over Skinner’s cattle. Jake Williams, as stated by him, pointed out to witness the carcass of the cow he claimed to have seen the defendant skinning. Judging from the color of the hide, the animal was one of Skinner’s cows which witness had milked until a short time previous, when he branded her calf and turned them on the range. But the ears having been removed from the head, and the brand having been destroyed, witness •could not positively identify the animal. He had never seen the Skinner cow on the range since the alleged killing, but had never looked for her.</p>

<p>Habeas Corpus—Pact Case.—See the statement of the case for evidence held insufficient to support a judgment refusing bail, murder being the offense alleged against the relators.</p>

<p>Murder—Practice—Impeachment of Witnesses.—Two rules apply to and govern impeaching and sustaining testimony. First. The inquiry must be restricted to the general character of the witness sought to be impeached. Second. Impeaching or sustaining witnesses must speak from the general reputation, and not from their private opinions, as to whether the character of the impeached witness is good or bad for truth, or as to whether the general reputation of the impeached witness is such as to entitle him to credit on oath. See the opinion in extenso for a course of interogation in a trial for murder held to be-subversive of these rules.</p>

<p>1. Perjury—Indictment.—If it specifically charges the materiality of the matter assigned for perjury, such allegation, in an indictment for perjury, is sufficient in this respect, notwithstanding it does not literally follow the approved form. See the statement of the case for the charging part of an indictment for perjury which, substantially conforming to number 122 of Willson’s Criminal Forms, is held sufficient.</p> <p>2. Same—Evidence.—The indictment charges that the perjury was committed upon the trial of M. and J., for the murder of J. J. The State introduced in evidence a separate judgment rendered against J., to which the defense objected upon the ground that it did not appear from that judgment that M. and J. were jointly tried, but that J. was tried alone. As matter of fact, M. and J. were jointly placed upon trial, and when the State closed its evidence the court directed the acquittal of J. and the trial of M. was proceeded with, the consequence being the return of two verdicts and the rendition of two judgments in the case. The statement of defendant, assigned as perjury, was made during the progress of the joint trial. Held, that the judgment against J. was properly admitted in evidence.</p> <p>3. Same—Practice.—There is no provision of law which requires that the record, even in a murder case, shall show that the trial court ordered the acquittal of an accused on trial, and that sueh order can not be shown by parol; and no sueh doctrine can be held to apply to a perjury case.</p> <p>4. Same—Charge of the Court.—It was not essential that the trial court should have charged the jury in this ease that the statement assigned as perjury must relate to a past or present event; inasmuch as the indictment itself shows that the statement did relate to a past event.</p> <p>5. Same.—On a trial for perjury, the trial court instructed the jury, in effect, to acquit the defendant if they had a reasonable doubt whether the statement made by him, and assigned as perjury, was true or false. Held, that, as the error was in the defendant’s favor, he can not be heard to complain.</p> <p>6. Same—Evidence.—The State introduced in evidence, over objection of the defendant, an indictment charging him with the murder of J. J. —the offense involved in the trial upon which the perjury is alleged to have been committed—and adduced oral proof that M., one of the defendants in the said trial, was a witness against him. Held, that the evidence was competent to show motive.</p> <p>7. Same—Charge of the Court.—The record of the proceedings upon the trial in which the perjury was alleged to have been committed, was properly admitted in evidence as matter of inducement, and to support the allegation in the indictment, that the perjury was committed upon the said trial. But it devolved upon the trial court to so limit the purpose of said evidence in its charge, and to instruct the jury that the record could not he considered upon the issue of perjury.</p>

<p>1. Theft—Evidence—Continuance.—See the statement of the case for the substance of absent testimony set out in an application for continuance held material to the defense, and probably true. Wherefore the refusal of the continuance and of a new trial was error.</p> <p>2. Practice in this Court.—The innocence of the appellants havingheen clearly demonstrated since their conviction, this court, as an act of justice to them, states that fact.</p>

<p>1. Forgery—Indictment.—An order for merchandise may be the subject of forgery.</p> <p>2. Same—Pleading.—As a general rule, a written instrument which, if genuine, would be valid for the purpose intended, can be made the basis of an indictment for forgery. On the other hand, if void or invalid upon its face, and incapable of being made good by the averment of extrinsic faets, an indictment for forgery can not be predicated upon it. See the opinion on the question.</p> <p>8. Same.—An order to “let Bare have $5 in grosses and charge the same to’ the purported drawer, is an order for articles of value, implies an obligation to the extent of five dollars, and, without the averment of extrinsic faets, will support an indictment for forgery.</p>

<p>Appeal from the County Court of Henderson. Tried below' before the Hon. W. L. Faulk, County Judge.</p> <p>The conviction in this case was for the slander of Miss Sallie Miller, by imputing to her the want of chastity, and the penalty assessed against the appellant was a fine of three hundred dollars and confinement in the county jail for the period of six months.</p> <p>The opinion of the court sets out the charging part of the in dictment.</p> <p>John Miller, the brother of the alleged slandered female, was the first witness for the State. He testified that the defendant worked for him on his mother’s place, in Anderson county, for about three months in the spring of 1887, but quit before the expiration of the term for which he was employed.</p> <p>Wiley Persons testified, for the State, that between three and five days after the defendant left the employ of John Miller, in 1887, the defendant came to the witness’s field where the witness was at work and entered into a conversation with him. In the course of that conversation the defendant told the witness that he could have “done it” to Sallie Miller on one night if he had had an opportunity, but that other young people were in and about the house at the time. He said further, at that time, that Sallie Miller “was a nice maiden; that he inserted two of his fingers into her sexual organ and found it to be as loose as that of a woman who had borne children; that she put her legs across his lap on that night, and that he could have had connection with her, but had no opportunity.” About a week later at witness’s house, the defendant said, in the hearing of the witness, that the “whole Miller family are whores.” Witness could not recollect that on that occasion he qualified the statement by saying, “if the reports I have heard are true.” On several subsequent occasions the witness heard the defendant say that the “whole Miller family are whores,” and then he always qualified these statements by saying “if all the reports I have heard are true.” In the conversation at witness’s house, referred to, the defendant also repeated substantially the statement he first made to the witness in the field.</p> <p>Cross examined, the witness said that Sallie Miller lived with her mother, about a mile and a half from witness’s house. Ho person other than witness and defendant were present when the first conversation in the field began, but before it was concluded other parties—-Billy Anderson and Mr. Calhoun, to the best of witness’s recollection—came up. The conversation was •opened by the witness asking the defendant about rumors current in the neighborhood connecting Sallie Miller’s name with his, defendant’s, name. Mr. Page, the husband of Fanny Page, was the first person who told witness of the rumors reflecting upon the relations of defendant and Sallie Miller. During the conversation in the field, the defendant also said to the witness that the moon was shining on the night that he was then refer, ring to, and that Sallie Miller pulled up her dress and exhibited her sexual organ to him, into which he inserted two of his fingers, and found her to be a “d—d nice fifteen year old maiden,” and that, at that time, had he had the opportunity, he could have had intercourse with her. He said that this occurred in the hall of Mr. Miller’s house, and that other parties were in and about the house at the time. Witness never at any time heard the defendant say that “Sallie Miller is unchaste and not virtuous,” and that he “could, at any time, have seminal and carnal intercourse with her if an opportunity presented itself—in this, that if he could get her at a private, secluded place”—the language alleged in the indictment. He said to the witness merely that he could have “done it” to her on that night if he had had an opportunity.</p> <p>Two other witnesses testified that defendant, on different occasions, made to them substantially the statements testified to by the witness Persons, and that he never, in their presence or hearing, used the identical language alleged in the indictment.</p> <p>The motion for new trial raised the questions discussed in th© opinion.</p>

<p>1. Practice.—Continuance is properly refused when, as in this case, the application therefor discloses not only a total want of diligence to procure the absent testimony, but that the testimony, if present, would be inadmissible.</p> <p>% Theet.—The proof shows that the accused borrowed a horse from the owner in the Indian Territory and rode it into Cooke county, Texas, where, without the consent of the owner, and with the fraudulent intent to convert and appropriate the said property to his own use, he sold it. Seld, that sueh facts constitute the crime of theft as defined by the act of March 8, 1887. (Willson’s Crim. Stat., art. 742a.)</p> <p>8. Same—Practice—Charge of the Court—Intent.—Special charges are properly refused when the general charge correctly embodies all the law of the case. Upon the question of intent the trial court, in this case, sufficiently charged the jury that the fraudulent intent must have existed in the mind of the defendant at the time he sold the horse; and it did not err in refusing to give a similar instruction asked by the defendant.</p> <p>4. Same—Evidence.—The defense proposed to prove that the defendant, at his first meeting with the owner of the property after the alleged theft, proposed to pay him for the same. It was also proposed to prove the conversation which then ensued between the defendant and the owner, which conversation is not set out in the bill of exceptions. Held, that the said proof was properly excluded as being no part of the res gestse nor relevant to any issue in the ease, and as not coming within the rule which qualifies as evidence a defendant’s explanation of his possession of stolen property.</p>

Tried below before the Hon. S. D. Lary, County Judge. This conviction was for keeping a disorderly house, and the penalty assessed against the appellant was a fine of one hundred dollars.

<p>Obstructing Public Road—Term Defined—Pact Case.—To constitute the offense of obstructing a public road, it must appear from the evidence that the obstruction was “wilfully” erected. “Wilful,” in legal parlance, means “with legal malice;” “an evil intent,” or the performing of an act without reasonable ground to believe it to be lawful. In this case the State proved the location of the road, and the fact that the accused obstructed it by building a fence across it; and further that, when notified to remove it as an'obstruetion, the accused stated that he would remove it at once upon being convinced that his fence was not on his own land and crossed a public road. The defense proved that before he built the fence the accused had the land surveyed, and, according to the survey, built the said fence on his own land. Held, insufficient to support a conviction for wilfully obstruct" ing a public road.</p>

<p>Appeal from the District Court of Webb. Tried below before the Hon. J. C. Russell.</p> <p>The conviction was for receiving stolen property, snowing it to be stolen, and the penalty assessed was a term of ten years in the penitentiary.</p> <p>George L. Hartley was the first witness for the State. He testified that he resided in the city of Laredo, Webb county, Texas, and was the resident agent of the Pacific Express Company. On the night of June 8, 1888, a cloth sack, said to contain one thousand Mexican silver dollar pieces, was stolen from the said express office. That sack of money was in the possession and custody of the witness at the time it was stolen. It was teken without the knowledge and consent of the witness. Th© glass in the back door of the express office was broken out and the sack of money was taken out through the opening thus made. On the twelfth day of the same month all but forty-three of the said one thousand dollar pieces were returned to witness by Dario Sanchez, the sheriff of Webb county.</p> <p>On his cross examination the witness said that he had lived in Laredo since February, 1888, going to that point from Fort Worth, Texas. The witness was at the post office in Laredo when the money was taken. He missed it about' nine o'clock p. m. The witness never saw the money said to have been in the sack. He never saw the contents of the sack, nor more of the property than the outside of the sack. The money did not belong to witness, but was received by him as the local agent of the express company as a consignment to C. Holck & Company, of Laredo. The name of C. Holck & Company was. marked on the outside of the sack. The responsibility for the money to Holck & Company rested on the Pacific Express Company until the delivery of the consignment to them, and the witness, until such time, was responsible to the express company. Witness knew no more about the contents of the said sack than he learned from the bill of lading under which it was received, which said bill of lading designated the contents as one thousand silver Mexican dollars. He only knew by hearsay that the money returned to him by Sheriff Sanchez was part of the same money that was in the said sack-consigned to C. Hoick '& Company. Mr. Ludlow was the agent of the company in San Antonio. Witness could not say whether or not Ludlow consented to the taking of the said money. Witness left his office door closed when he went to the post office. He did not see the money taken from the office.</p> <p>Re-examined, the witness said that the sack returned to him with the thousand (less forty-three) dollars was a sack of the same kind as that which was taken away with the money. There was still a little wax on the sack when it was returned. The money taken was worth seventy-five cents on the dollar.</p> <p>Re-cross examined, the witness said that the sack, when returned to him, had no name or other writing on it. All he knew about it being the same sack that was taken, was that the little wax still adhering to it looked like the wax of the original seal. Most of the express companies use different colored wax.</p> <p>Yginio Garcia was the next witness for the State. He testified that, as deputy sheriff, he received a warrant to search the premises of one Cecelia Salazar, the mistress of Enrique Renteria, from whom the defendant was charged to have received the stolen money. The witness and his attendant found five . hundred and odd Mexican silver dollars buried in the yard of the said Cecelia Salazar. The said money was in a sack when found, and was turned over by the witness to Sheriff Sanchez. Witness afterward returned to Salazar’s house and found twenty-one dollars more. Renteria lived at the house of the said Cecelia Salazar. The defendant’s correct name was Marteriano Arcia, and by that name, and as the son of Pasqual Ar-, cia, the witness had known him since he was four years old. Renteria and his companion were both arrested, and Renteria was sent to jail by the defendant, who was a deputy sheriff and knew the cause of the arresfof Renteria. "</p> <p>Cross examined, the witness stated that he had never known the defendant by any other name than that of Marteriano Arcia. He had seen the defendant write, but never observed his sign manual to see how he spelled his name. The sack recovered by the witness with the money in it had on it fragments of red wax, such as is commonly used by express companies for sealing purposes. It showed also three circles about the size of a twenty-five cent piece. Witness did not remembei that there were any letters or figures on the sack. Cecelia Salazar showed the witness the spot in her yard where the bag of money was buried. The witness never saw the sack until he got it from the place shown him by the woman Salazar. The circles spoken of by the witness indicated that the sack, when intact, and before it was opened had three seals on it. Renteria was sent to jail from the mayor’s office by the defendant, as likewise was another man a short time before. The witness did not know why Arcia sent them to jail, but he knew that Renteria and the man were detained at the mayor’s office for the purpose of examining them with the view of getting information about the money stolen from the express office.</p> <p>Jose Maria Castro testified, for the State, that he had known the man Enrique Renteria for a short while. The witness, while passing along the street near the Pacific express office in Laredo, between eight and nine o’clock on the night of the day alleged in the indictment, saw Enrique Renteria drop a sack out of the express office door, and then come out of the said office and pick up the sack and walk off. Witness heard the jingle of silver money when the sack fell, and recognized the man Renteria when he came out of the office and went off with the sack. He next saw Renteria at the market house in company with the sheriff, and identified him. He did not know the defendant, and had no recollection of seeing him on the night of the burglary.</p> <p>Enrique Renteria testified, for the State, that he knew all about the burglary of the Pacific Express office in Laredo on the night of June 8, 1888. He was, himself, the identical individual who committed that burglary. The property secured by him on that occasion was a sack containing about one thousand Mexican silver dollars. Witness took the sack of money to his house as soon as he secured it, and within the next three hours was .aysestedjor the burglary. Defendant took witness to the market house about three o’clock on the next morning, and thence to jail. When arrested, the witness repeatedly protested to the defendant that he knew nothing about the money. It was evident, however, that the defendant knew witness had the money, for he asked the witness to tell him where it was, ness off on a lighter sentence than he would otherwise get. Witness finally got the defendant to go with him to his house, where he gave the defendant some of the money. Defendant took the money thus given him, and which the witness had got from the sack he had taken from the express office, and put it in his pocket_and a belt. The money had not been buried when defendant came "to witness’s house and got part of it, but was in a tin can in the kitchen, where witness put it when he first got home. Witness offered the defendant all of the jnoney for his ^release, but defendant-declined the offer.' TP was" about five o’clock when witness gave the defendant the money. Defendant then took witness back to jail, reaching the jail about day and promised, in consideration of such information’, to get wit-</p> <p>On his cross examination, the witness stated that he gave the money to the defendant in the kitchen and in the-prgsence of the womari_Salazar. There was then no light in the kitchen, not give Salazar a cent of the money, nor was she in any way a party to the transaction between witness and defendant. The witness opened the sack before he was arrested; first put it in the trunk in his room, but then took it to the kitchen and put it in a tin can. Witness denied that he ever, in jail or elsewhere, but t as a lighted candle in the next room. Witness did told Tomas Arispe or any other person that another person than himself was concerned in the burglary, and that such person has escaped across the Rio Grande with part of the money.' When the witness last saw the money not given to defendant it was in the tin can in the kitchen, and had not been buried.</p> <p>Cecilia Salazar, for the State, corroborated the testimony of the witness Renteria as to the visit of the defendant to her house, with the said Renteria early on the morning of June 9, 1888, and the payment at that time of a part of the money by Renteria to defendant. She stated, as did Renteria, that the latter got the money from a sack in a tin can in the kitchen, and that, upon receiving the money, defendant put it in his pockets and in a belt.</p> <p>Deputy Sheriff Eugenio Yglesias testified, for the State, that, becoming satisfied that the defendant had part of the money stolen from the express office, he and Sheriff Sanchez concocted' a scheme for his detection and the recovery of the money. In, accordance with that plan he accosted the defendant in the jail yard and told him that if he would tell where the balance of the money (that not recovered from Renteria) was, he, witness, would help him out of the difficulty, and to do so he would tell Sanchez that he, witness, had found the money, and that defendant had assured him that he was not guilty. Witness then| told defendant what the woman Salazar had said about his receiving part of the money at her house. Defendant then agreed to disgorge, and told witness he would 'find a part of it in a handkerchief buried at the foot of a telephone post near the jail, and the balance of it in his belt at a certain store, for which he gave the witness a written order. Witness dug up the handkerchief at the point indicated by defendant, and found it to contain three hundred dollars. He got the belt on defendant’s order, and found it to contain one hundred and twenty dollars. He found about twenty dollars more of Mexican money and five dollars in American money on the person of defendant. About an hour after the defendant’s arrest, and while he was in jail, he told witness that he took and kept the money for the purpose of tracing the balance and discovering whati other parties were concerned in the burglary. I</p> <p>Several of the witnesses for the State testified that they had known the defendant for years, and had always known him as Marteriano Arcia, and by no other name.</p> <p>The State closing, the defense introduced the sheriff, who testilled that, for the two years the defendant had been under him as deputy sheriff, he had known him as Marteriano Arce. During that time defendant had signed his name to letter's to-witness (which were produced in evidence) as Marteriano Arce. Had witness been questioned by the grand jury, when before them, he could have told them that defendant’s surname was Arce, and not Arcia. Senor Morel testified as did Sheriff Sanchez, as to the correct surname of defendant.</p> <p>In rebuttal'of Renteria’s testimony, in part, the defense introduced Tomas Arispe, who testified that he was in jail on the morning that Renteria was confined, and that on that morning Renteria informed him that he told the defendant that another party who was engaged in the burglary had escaped across the Rio Grande, and that the defendant was making his arrangements to arrest that party on his return.</p>

<p>Appeal from the District Court of Fannin. Tried below before W. A. Evans, Esq., Special Judge.</p> <p>This conviction was for the burglary of a railway car, and the penalty assessed was a term of two years in the penitentiary.</p> <p>J. M. Booth was the first witness for the State. He testified that he lived at Bonham, Fannin county, Texas, and was the general agent at that place of the Texas & Pacific Railway company. As such agent he had the care and control of all the freight cars, and the contents of the same, of the said company while in the depot yards of the said company in the said town of Bonham. Such cars and their contents, from the time they are placed in the said yards until they are delivered to the conductors of trains for transportation, are in the possession of the witness, and he was responsible for tbeir safe custody. Witness had a day and a night clerk—Mr. J. R. McKinney being night clerk. Each of these clerks worked under the direction and control of the witness. On the night of July 26, 1888, three of the freight cars in the depot yards of the company in Bonham, and then in the possession and under the control of the witness, were broken open. Two of those cars contained general merchandise, and the other was loaded with lumber. The said cars were to have been forwarded to western points on the morning of July 27, 1888. The said cars of merchandise had been at Bonham, the end of a division, in the possession and custody of the witness about twenty-four hours, and the car of lumber had been in his possession from six to eight hours¿ Each of the said three cars was closed and sealed. The witness did not authorize the defendant nor auy other person to break into the said cars, or either of them, on that night, nor at any other time; nor to take any goods or article whatever from either of said cars. Each of the said cars was closed by -sliding doors and fastened with leaden seals through each of which a wire was thrust and clamped. The conductor of the train that was to take the three cars forward on the morning of the twenty-seventh refused to take them because of the broken seals, and the fact that they had been entered on the previous night.</p> <p>On his cross examination, the witness said that he did not know of his own knowledge that the said cars were broken <open on the night of the twenty-sixth. The witness was em= ployed by the receivers of the Texas & Pacific Railway company as their agent at Bonham, and executed his bond to said company for the faithful performance of his duties as such agent. He was not in the actual occupancy of the said three cars, but they were in his personal care and custody. Witness was authorized to enter sealed cars at will, take out or put in freight as necessity required, and to make any changes in the cargoes he thought proper. On such occasions he generally made memoranda of changes, and reported the same when required.</p> <p>J. R. McKinney was the next witness lor the State. He testified that he was the night clerk at the depot yards of the Texas & Pacific Railway company at Bonham. He was employed by and was under the direction and control of General Agent Booth. He was so employed on the night of July 26, 1888. The three freight cars mentioned and described by the witness Booth were broken open and entered on the said night—-or, rather, between four and five o’clock of the next morning. Day broke on the morning of July 27, 1888, about 5 o’clock, and it was just before day break that the witness discovered that the said cars had been recently broken open. The seals were removed and the said cars had been entered. When witness discovered that the said cars had been broken open and entered, he went into them and discovered that in one of the merchandise cars a box of candy had been opened and about two pounds of candy taken out. The said cars were to go forward on the next morning, but because of the breaking the conductor of the train refused to take them. The car of lumber was bound to Houston, and the two merchandise cars were loaded with local freight for points west of Bonham. Witness identified one of the seals exhibited to him as that which was broken from the car of lumber, but could not identify the second seal, which showed tha,t it was put on a car at St. Louis, Missouri. The witness was present when defendant and four negroes were arrested for the burglary of the cars. They were arrested just before day light. They were in cars on the train to which the three burglarized cars were attached, and, when summoned by the officers to come out of the cars and surrender, they jumped from the cars on the side opposite from the officers and fled toward some neighboring brush, but were pursued, overtaken and arrested by the officers. Thereafter, about sun rise, two other negroes— the State witnesses, Amos Willis and Sim Reed—were arrested! by Knox Smith. The said Willis and Reed were not with defendant and his four associates when they were arrested. On his cross examination the witness said that the car from which defendant and his four associates sprang just before their arrest was an open, empty box car, and was not one of the burglarized cars. It was, however, a part of the train to which the burglarized cars belonged, and which train was on the eve of starting west when the burglary was discovered and the said parties arrested.</p> <p>T. A. Orr testified, for the State, that he was a brakeman on the freight train that went west from Bonham on the morning of July 27, 1888. He saw three cars that were burglarized a short time before the train started, and entered each of them. He saw in one of the merchandise cars a bucket of candy that had been neatly burst open, and from which two or three pounds of candy had been taken. The three said cars were to have gone forward on the said train, which left at day light— a few minutes past five o’clock—but the conductor of the train cut them out and refused to take them on, and left them in the yard. Just before the train started five negroes sprang from a box car and fled towards the brush. They were pursued and arrested by officers. When witness went into the merchandise cars he found a white man in one of them and no body else.</p> <p>Cross examined, the witness said that the box car from which the five negroes sprang, just before their arrest, was not one of the burglarized cars. It was open but had not been broken open. It was a common thing to find tramps in open cars trying to “steal” rides. The white man mentioned by the.witness was not in the car in which the broken bucket of candy was stored. He was hiding behind a barrel when witness found him. That white man, however, had very near two pounds of candy in his pockets, which looked very like the candy that was in the bucket in the other car. Witness turned that white man over to Gates. The cars were broken in on the south side.</p> <p>Hode Gates testified, for the State, that he was the night watchman in Bonham, Texas, and was one of the officers who arrested the defendant and four other .negroes on the morning of July 27, 1888, upon the charge of burglarizing the cars of the Texas & Pacific Railway company. Witness found the five negroes in an open box car of the train that was to leave that morning. He ordered them to surrender, when they jumped from the car and fled towards the brush. Witness and Hamilton pursued and arrested four of them in a bunch, and the defendant by himself. Defendant ran into some high weeds and attempted to secrete himself, but was captured by Hamilton. About an hour later two other negroes—the State’s witnesses, Willis and Eeed—were arrested. They were not with the defendant and his four associates when they jumped from the car. All of the said negroes, including Willis and Eeed, were strangers in Bonham. A white man was arrested in one of the cars, but, as the witness was informed, he proved to be a lunatic. On his cross examination, the witness said that Orr delivered the white man to him just before the discovery of the negroes in the box car. Witness found a pound or two of candy in the pockets of the white man, which he compared to the candy in the broken bucket. He found it to compare exactly with said candy. After securing the defendant and his four associates, the witness took them to the calaboose, about a quarter of a mile distant, and locked them up. A short while later the witness started back to the depot, and midway between that point and town, he met Smith with the negroes Willis and Eeed in charge. Smith delivered the said parties to witness, and witness took them to the calaboose and locked them up with the others.</p> <p>W. B. Hamilton, city marshal of Bonham, testified, for the State, that he arrested the defendant and four other negroes, near the depot in Bonham, a short while before day, on the morning of July 27, 1888. The said negroes were found in an open bóx car of the Texas & Pacific Railway Company, and, when ordered to come out and surrender, they sprang from the said car and fled towards the brush. Defendant left the other four and ran into some weeds, about one hundred yards from the depot, where he laid down. He had on a pair of new red leather slippers when arrested. The leaden car seals now exhibited to witness, being the same that were shown to the witness McKinney, were identified by witness as the seals he found under the calaboose window after the defendant and the other negroes, including Willis and Eeed, were placed in the calaboose. Somebody informed witness that the defendant threw some seals out of the window, and the witness thereupon went outside and found them on the ground under the said window. ■ Willis and Eeed were placed in jail some time after the first five were. A white man, who proved to be a lunatic, was also placed in jail. All of the said seven negroes were strangers in Bonham. On his cross examination the witness said that all of the negroes and the white man were arraigned before the mayor of Bonham on the said morning, and all of them pleaded guilty to trespass upon the cars. They were all fined and turned over to the witness. The white man proving to he a lunatic, witness turned him over to the county authorities. He put the negroes to work on the streets of Bonham for eight or nine days, when, having worked out their fines and costs, he turned them over to the sheriff of Fannin county. It was the white lunatic who told the witness about the defendant throwing the car seals out of the calaboose window.</p> <p>Amos Willis testified, for the State, that he lived in Palestine, Texas. He knew the defendant and Sim Reed, and the other four negroes who were arrested for the burglary of the Texas & Pacific cars on the night of July 26, 1888. The said negroes, and witness came to Bonham together on the night of 1 heburglary, “beating” their way to that point from Paris, in Lamar county, on a freight train. ‘ Some of the said negroes Jived at Shreveport, and some at Texarkana. All of them, including witness, had been recently at work near Blossom Prairie, east of Paris, on a tie train. All were paid off on July 25. The defendant and others gambled off their wages, except a small amount they spent in Blossom Prairie for oysters. Witness won some of their money, playing dice. Witness and Reed came to Bonham from Blossom Prairie, expecting to get work. The others, without grub or money, embarked at Blossom Prairie to beat their way to Kansas City, Missouri. The party reached Bonham between two and three o’clock on the morning of the twenty-seventh. Upon reaching Bonham, the witness suggested going to bed and to sleep, but the defendant said that he was hungry, and intended to get something to eat. Witness told him that he had no money to buy anything with. Defendant replied that he would break open one of the cars and get some food. Witness rep.ied that he would not engage : n that work. All the other negroes except witness and Reed agreed to defendant’s proposition to break into a car. The party then walked up the track to one of the cars, which the 'defendant opened with a stick. He and four others then went i uto the car. After standing near the car about two minutes, 'lie witness and Reed went back towards the round house. J vd laid down on a pile of ties, and the witness on some weeds, and went to sleep. After defendant and his four associates got into the car, the witness heard them pounding on something, and it sounded to witness like they were trying to break into a box. Reed and witness got up next morning, and were nearing town when they met Knox Smith, who arrested them and turned them over to Watchman Gates, who in turn put them in the calaboose, where they found the defendant and the other four negroes. Soon after witness and Reed were put into the calaboose, he saw the defendant take some car seals from his slippers and throw them out of the calaboose window. Soon afterwards, he heard a white man then in the calaboose tell Mr. Hamilton about defendant throwing the seals out of the window.</p> <p>Cross examined, the witness said that he walked from Blossom Prairie to Paris, but the others beat their way on a freight train. On reaching Paris the witness met the parties, and he and Reed got something to eat by “splicing” their funds. The others, being without money, got nothing to eat in Paris. Witness knew they had no money, because he and Reed, on the morning before, won what little the others had left of their wages. The parties left Paris together on a freight train, about dark, and got to Bonham between two and three o’clock, the said train stopping at one point en route to take on some ties. The witness did not see but one car broken open, and that was broken on the north side. The entire party were fined by the mayor and were put to work on the streets. Witness supposed they were fined for beating their way on the railroad. After being worked on the streets for several days, the several parties were arrested upon the charge of breaking into the cars. When they had remained in jail under that charge ten or twelve days, witness and Reed got a prisoner named Bill English to write a note for them to ’Squire Lyday, requesting him to visit them at the jail, and expressing their desire to tell all about the car transaction. They were moved to do that by their desire to get out of jail and their consciousness that they were innocent of the charge of car breaking and burglary. Witness and Reed then turned State’s witnesses, and were relieved of the charge against them, but were held as State’s witnesses, and testified on the examining trial of the defendant and his four confederates.</p> <p>The State closed.</p> <p>Justice of the Peace E. H. Lyday testified, for the defense, that the defendant and six other negroes, including Amos Willis and Sim Reed, were brought before him on a charge of car breaking and burglary. Willis and Reed wrote witness from the jail that they wanted to testify for the State as to the facts of the car breaking. They were brought before witness, who dismissed the cases against them, so that they might testify against the others.</p> <p>On cross examination, the witness said that the cases against Willis and Reed were dismissed upon the voluntary motion of the district attorney, who stated in support of his motion that he had no testimony to support the charge as against them. He also disclaimed at the time that he had made any agreement with the said Willis and Reed to dismiss their cases in consideration of their testifying in behalf of the State. Willis and Reed were then released upon the street, and were never indicted.</p> <p>E. L. Agnew, mayor of Bonham, testified, for the defense, that he remembered the arrest, in July, 1888, of seven negroes and a white man for trespass on the cars. They were brought before him for trial. Ho evidence was introduced. Witness merely asked the crowd if they pleaded guilty, and fined them. Witness took down the name of each negro, but could not now distinguish one from another.</p>

Tried below before the Hon. D. M. Rodes, County Judge. The conviction in this case was for the theft of Ragland’s hog, and the penalty assessed was a fine of ten dollars and confinement in the county jail for twelve hours. Ragland testified, in substance, that, soon after dinner on the day alleged in the indictment, he, then being at home in Morris county, heard the report of a gun and the baying of a dog, at a point about three hundred yards west of his house.

Tried below before the Hon. D. M. Rodes, County Judge. This appeal is prosecuted from the ruling of the county court dismissing an appeal prosecuted thereto from the justice’s court, upon the ground that the appeal bond was insufficient.

Tried below before the Hon. E. D. McClellan. This conviction was in the second degree for the murder of J. D. Davidson, in Red River county, Texas, on the thirteenth day of June, 1887. The penalty assessed was a term of eight, years in the penitentiary.

Tried below before A. B. Boren, Esq., Special Judge. A life term in the penitentiary was assessed against the appellant upon his conviction in the first degree for the murder of Lewis Rhiden, in Upshur county, Texas, on'the seventh day of August, 1882. Emma Wagoner was the first witness for the State. She testified that the deceased was killed in Upshur county, Texas, on the night of August 9, 1882.

Tried below before the Hon. T. M. Paschal. The opinions disclose,the nature of the case. The amount of the bond adjudged was eight hundred dollars

Tried below before the Hon. F. J. McCord. The conviction in this case was for the burglary of the house of A. J. Hill, with intent to commit rape upon Miss Maggie Hill. The penalty assessed by the verdict was a term of three-years in the penitentiary. Miss Maggie Hill was the first witness for the State.

Tried below before the Hon. George McCormick. This conviction was in the second degree for the murder of Lewis Hunter, in Gonzales county, Texas, on the second day of July, 1888. The penalty assessed against the appellant was a term of twenty-two years in the penitentiary. W. M. Atkinson was the first witness for the State.

Tried below before the Hon. J. C. Russell. The appellant, being convicted in the second degree for the murder of H. Douglas, in Webb county, Texas, on the twenty-ninth day of March, 1886, was awarded a term of ten years in the penitentiary. Antonio B. Ayala was the first witness for the State. He testifies that he had resided in the city of Laredo, Webb county, Texas, since 1875.

Tried below be» fore the Hon. N. G. Kittrell. The conviction in this case was for burglary, and the penalty-assessed against the appellant was a term of eight years in the penitentiary. • J. B. Holland was the first witness for the State. He testified that he lived at Riverside, in Walker county, Texas, and was owner and proprietor of the store for the burglary of which the defendant was on trial.

Tried below before the Hon. G. A. McCall. The conviction in this case was for the embezzlement of Boone Halford’s horse, and the penalty assessed was a term of five years in the penitentiary. W. T. Kelley was the first witness for the State. He testified that he lived in Whitesboro, Grayson county.

Tried below before the Hon. Sam R. Frost. The conviction in this case was for perjury, and the penalty assessed against the appellant was a term of five years in the penitentiary.

Tried below before the Hon. George McCormick. The appellants were jointly indicted for the murder of one Davis Green, in Colorado county, Texas, on March 24, 1888. They were jointly tried under that indictment, and jointly convicted of assault with intent to murder, and each was awarded a term of two years in the penitentiary. John Winslow was the first witness for the State.

Tried below before the Hon. F. J. McCord. The conviction in this case was for an assault with intent to murder Matt Webb, and the- penalty assessed was a term of two years in the penitentiary. Matt Webb was the first witness for the State. He testified that, on the night of February 3, 1887, the defendant and many •other persons attended a party at the house of Jesse Webb, the brother of the witness, which said house was situated in Smith •county, Texas.

Tried below before B. W. Foster, Esq., Special Judge. The appeal in this case was prosecuted from the forfeiture of the appearance bond of W. W. Bailey, who was bailed upon a charge of perjury. The amount of the bond adjudged was seven hundred and fifty dollars.

Habeas Corpus on appeal from the District Court of Live Oak. Tried below before the Hon. D. P. Marr. The relator in this case was held under an indictment which charged him with the murder of J. W. Wilson, in Live Oak county, Texas, on the thirtieth day of August, 1888. This appeal is prosecuted from the ruling of the trial court refusing bail, and remanding the relator to the custody of the sheriff of Live Oak county.

Tried below before the Hon. Anson Rainey. The conviction was for burglary, and the penalty assessed was a term of two years in the penitentiary. The disposition made of the appeal does not necessitate a statement of the evidence as adduced on the trial.

Tried below before the Hon. W. M. Lamb, County Judge. The conviction in this case was for the theft of thirteen hundred rails, the property of M. C. Young, and of the value’of thirteen dollars. The penalty assessed by the verdict was a fine of ten dollars. M. C. Young was the first witness for the State. He testified that he lived in Rains county, Texas, on a small tract of land that he bought from one John Rains in July, 1887.

<p>Occupation Tax—Retailing—Char&e op the Court.—The offense denounced by article 110 of the Penal Code is the pursuing of a taxable occupation, calling or profession -without first having paid the oeeupa- • tion tax levied on such avocation. The trial court charged the juryinthis case as follows: “You are charged that different sales, at different times, to different persons, would constitute the occupation of selling, but one sale would not.” Held, erroneous, as announcing an incorrect proposition of law, and as being-upon the weight of evidence, it being the exclusive province of the jury to determine the question.</p>

<p>1. Practice—Evidence—Marks and Brands.—Certificate of the county clerk of Young county to a copy taken from the record of marks and brands reads as follows: “The State of Texas,'County of Young. I, Chas. O. Joline, clerk of the county court in and for said county, do hereby certify that the foregoing is a true copy of the record of the mark and brand of Wilkinis Bros.”—Signed, with seal. etc. Held, that such certification of the copy from the record was sufficient to show that the said mark and brand were recorded in Young county.</p> <p>2. Same—Theft —The trial court did not err in permitting one of the alleged owners of the stolen cattle to explain, under oath, why oDe of the brands specified in the record was not placed upon certain of his-cattle.</p> <p>3. Same—Reproduction of Evidence—Predicate.—An essential part of the predicate whereunder it is competent to reproduce, on trial, by-oral proof, the evidence delivered upon the examining trial by a witness who has since died, and the record of whose testimony has been lost, is affirmative proof not only that the defendant was present as the party on trial at the examining trial, but that he was afforded the opportunity to cross examine the witness. Bailing in this latter respect, the predicate in this case was insufficient, and the trial court erred in admitting the reproducing testimony.</p> <p>4. Same.—Article 586 of the Code of Criminal Procedure requires that the clerk, in ease of a change of venue, shall, before transmitting the original papers in the cause, make a correct copy of the same, to be preserved in his office, etc. Held, that the record of testimony taken before the examining court, and delivered to the clerk by the magistrate who held the said court, is not “an original paper” within the meaning of the statute, and therefore is not a paper of which the clerk is required to keep a copy, and, for that reason, it is not a valid objection that, before resorting to parol reproduction of the testimony of the deceased witness, the State should first have produced a certified copy of said testimony from the clerk of the court whence the venue was changed, or account for its non production.</p> <p>5. Same.—A State’s witness testified that, at the instance of the agent of the alleged owners of the stolen animals, he went to the city of Memphis, and there found certain cattle in the brand of the alleged owners, and without having otherwise identified the animals, he further testified, over objection by the defense, that he sold the said animals under a power of attorney from the alleged owner, and delivered the proceeds of the sale to the agent for the alleged owners. Held, that the proof was res inter alios acta, and irrelevant, and, tending to prove the issue of ownership, its admission was material error.</p>

<p>1. Carrying Pistol—Deputy Sheriff.—The Statute (Rev. Stats., art. 4520) which empowers sheriffs to appoint, in writing, deputy sheriffs for them respective counties, requires that such deputy sheriffs, before •entering upon the discharge of their official duties, shall take and subscribe the constitutional oath of office, which shall be indorsed on the appointment, together with the certificate of the officer who administers the oath, and such appointment and oath shall be recorded in the ■county clerk’s office and deposited therein. To a prosecution in K, county for carrying a pistol in said county the accused in this case introduced as evidence of his exemption from the law prohibiting the carrying of a pistol, a paper executed in V. county on April 3, 1887, signed by the sheriff of V. county, appointing him a deputy sheriff of said V. county. Neither the constitutional oath of office nor the certificate required by the statute was indorsed upon the said paper. Other proof showed that the accused left V. county and moved to K. county, and was a resident of K. county at the time of the alleged offense; and, further, that the said appointment had never been recorded in the office of the county clerk of Y. county. Held that the purported appointment was illegal and of no effect, and did not operate as an exemption of the accused.</p> <p>3. Same—Charge of the Court.—The trial court properly instructed the jury, by request of the State, to the effect that the accused in this ease was not a legally appointed deputy sheriff; and that, if the State had proved the carrying of the pistol by the accused, it devolved upon the accused to show his authority, or the facts upon which he could reasonably infer authority, to carry it. And it correctly instructed the jury, by request of the defense, that, although not a legally appointed deputy sheriff, if such was the fact, yet if the accused honestly believed that he was so legally appointed, and with that belief carried the pistol, he should be acquitted. (See the argument for the appellant for the charges given at the request of the State, and the statement of the ease for the charges given at the request of the defense.)</p> <p>3. Same.—Conflict in the charges of the court will, if material, necessitate the reversal of a conviction had thereunder. But note that, taken as a whole, the charge in this case presents no conflict.</p>

<p>Appeal from the District Court of San Augustine. Tried below before the Hon. J. I. Perkins.</p> <p>The conviction in this case was for disturbing the peace, and the penalty assessed against the appellant was a fine of five •dollars. The opinion states all matters relevant^to the rulings.</p>

<p>1. Practice—Change of Venue was applied for upon the ground that . the accused could not secure a fair trial by an impartial jury because of the prejudice prevailing against him throughout- the county. The proof shows that whatever prejudice existed against the accused was confined to a single section of the county, and it is made to appear that none of the jurors who tried the case resided in that section of the county. Held, that the refusal of the trial court to change the venue was not error.</p> <p>%. Rape—Pact Case.—See the statement of the case for evidence held sufficient to support a capital conviction for rape.</p>

<p>Appeal from the District Court of Hood. Tried below before the Hon. W. H. Devine.</p> <p>The appellant was convicted as an accomplice to arson, and was awarded a term of five years in the penitentiary.</p> <p>Homer Duke was the first witness for the State. He testified that he lived in Granbury, Hood county, Texas, and lived there in the year 1887. During April of that year he occupied a room in a building on the north side of the public square. The defendant at that time was keeping a grain and feed store, which was located on the southeast corner of the said square. The witness was awakened one night during the said month by the alarm of fire. As soon as he could he put on his clothes and Tan to the defendant’s feed store, and found the east door near .the end of the house open, and the hay inside of the house on fire. He then ran rapidly to Mr. Smith’s house and awakened Mr. Smith, and then went to the church and rang the bell as an qla.rm He then went back to the feed store and found Mr. Stringfellow, Gordon and others working at the fire. They then had it nearly extinguished, but were still pouring water on it.</p> <p>F. J. Gordon was the next witness for the State. He testified that, in April, 1887, he lived in Granbury, Texas, about forty yards distant from the southeast corner of the public square, which corner was occupied by the defendant’s grain and feed store. About midnight on the night of April 16, 1887, the witness heard some person screaming at a point south from his house. Going to his door he discovered that the said feed store was burning. Witness at once dressed and went to the-feed store. Stringfellow was then at the east window trying to get in. He smashed the window about the time that the witness reached him, whereupon the witness dashed a few buckets of water on the hay piled near the window on the inside, which was burning. Witness then went to the southeast door and went into the house. Ho person was in the house when the witness entered it.' The witness went for two or three more bucketsful of water, and dashed them on the burning hay before anybody came to his assistance. The smoke finally drove the witness from the inside of the burning house, but, after throwing a few more bucketsful of water into it, he finally got back inside and emptied buckets of water on the burning hay and corn as fast as they were brought to him by the crowds who brought them. George Randall finally got into the house, and in the pile of corn discovered a gallon can of coal oil. That can was covered with corn, which appeared to have rolled down on it. Randall seized the can and took it out of the house, when it was discovered that the heat of the burning matter had melted the spout off of it. The can was quite full of oil. Witness went out of the house after the fire was extinguished and saw an empty gallon can of coal oil sitting near the southeast corner of the house. There was a little cut in that can which appeared to have been made by some person puncturing it with a knife blade. The fire was very hard to extinguish, and the-witness thought at the time, from the manner in which the hay and corn burned, and from the strong odor of burning kerosene, that both the hay and corn were saturated with coal oil.-</p> <p>George Randall testified, for the State, that he lived in the town-of Granbury at the time, in April, 1887, when the defendant’s feed store caught fire. The witness at that time occupied a room in abuilding on the north side of the public square. He was awakened about two o’clock at night by the alarm of fire. He went, at once to the building, about which a large crowd had already gathered. The fire was then under control. Some of the parties were working inside and some on the outside of the house. The witness went inside to assist those struggling with the-flames in there. The smoke inside was very dense, and made the labor very difficult. While shoveling corn from the track of the fire, the witness struck a hard substance with a spade, which, when examined by Henry Evans, proved to be a gallon can of coal oil. There was a hole in the top of said can, but witness could not say whether it had been burned or cut. He saw another can on the outside of the house. It was empty, but had contained coal oil. He did not examine the last mentioned can.</p> <p>J. A. Stringfellow testified, for the State, that the fire in the defendant’s feed store occurred between one and two o’clock on a certain Sunday night in April, 1887. The witness was sleeping about sixty feet distant from the said store, in the rear part of his restaurant, which adjoined the said store. Smith, the man referred to by the witness Duke, was living in the rear of the restaurant. Witness heard the fire alarm, and ran at once to the east or back window of the feed store, from which he pulled some boards, and discovered that the hay on the inside of the house was on fire. Jo. Gordon reached the burning house about the time that witness did. After pouring some water on the burning hay, the witness went back to his room. The witness saw a gallon can full of coal oil in the house, and an empty gallon coal oil can outside. He discovered that the corn inside of the house was saturated with coal oil, but did not observe that the hay was.</p> <p>Charles Irwin was the next witness for the State. He testified that he was twenty-one years of age. He resided in Granbury in April, 1887, boarding at the house of Captain Farr, where the defendant also boarded at that time. He and defendant occupied the same room in Captain Farr’s house, but different beds. The defendant’s feed store was set on fire on the night of April 15 or 16, 1887. At that time the witness had known the defendant about three weeks, but had previously seen him in Cleburne. The witness set the said store on fire, having been hired to do so by the defendant, who promised to pay him fifteen or twenty dollars for the job. Defendant spoke to witness, and proposed to pay him to fire the store, about three weeks before it was done. The said proposition was made by the defendant to the witness one night at the Farr hotel, in their said room. At the dinner table on that day he asked the witness if he did not want to make fifteen or twenty dollars. Witness replied that he did, and asked him how it was to be made. He replied that he would explain to witness that night, and that night, when they went to their room, he told the witness that he would pay him fifteen or twenty dollars if he would fire the said store. The witness told him that his proposition involved a very risky undertaking. Defendant replied that with proper care and caution, the witness could fire the building without danger of detection. The project to burn the house was reverted to and discussed every night, until the witness agreed to start the fire for a consideration of fifteen or twenty dollars. On the Saturday preceding the night of the fire, the defendant explained to the witness how to carry out the destruction of the building and contents. He instructed witness how to saturate the corn, hay and partition wall with coal oil, and how to ignite it. He then gave the witness a dollar with which to purchase the coal oil. On that evening, while they were completing their plans for the burning of the store, a negro boy named Alex McCune came into the store, and witness asked defendant if it would do to send Alex to buy the oil. Defendant replied that it would, and instructed the negro to buy the oil at Skipper’s store. Witness then gave Alex one dollar and five cents, and sent him to Skipper’s store to get the oil. The negro brought back two one gallon cans of coal oil and twenty-five cents in change. Defendant placed the coal oil under the end of the counter, and witness asked him how much he should pay the negro for going after it. Defendant replied that a dime was enough, and witness gave Alex ten cents, and kept the remaining fifteen cents. The negro then left.</p> <p>It was then arranged between witness and defendant that the defendant should go to Cleburne on that evening, and that the witness should fire the house that n'ght. It rained, however, and the defendant did not start to Cleburne on that evening, but met the witness at the walking match then in progress in town, and told him to put off the burning of the store, as it was raining. At the same time he told the witness that he had cut a bale of hay open, and loosened it, and that everything was ready for the fire. Between six and seven o’clock on the next morning, the witness met the defendant in the alley between a saloon and a store on the south side of the public square, at which time the defendant gave him the key to the store, and directed him, when through with it, to give the key to Charles McGough. At about eight o’clock the defendant left Granbury to go to Cleburne. The witness kept the key and went into the store about four o’clock on that evening and emptied one of the ■cans of oil on the hay and corn. He then left the south door near the east end unbolted, and went out of the front door and locked it, and about half-past seven o’clock that evening took the key and gave it to McGough. Between eleven and twelve o’clock that night, he went back to the store, entered through the unbolted rear door, fired the corn and hay, went out at the rear door, closed or nearly closed it, and went to bed at the hotel, and was in bed when the fire alarm was sounded. While arranging to set fire to the store, the witness saw the defendant writing in a memorandum book, and defendant told him that he was fixing the book to swindle the insurance company; that he wanted to burn the house to get the insurance money, and that he was making entries in his book to make it appear that he had stock on hand sufficient to absorb the amount of his insurance, and that he then had his book nearly ready. The witness cut one of the coal oil cans when he was in the store at four o’clock on the said Sunday evening, and at that time saturated the corn and hay with the oil. The witnesses Jesse Hunter and others were at the hotel dinner table when, about three weeks before the fire, defendant asked witness if he wanted to make fifteen or twenty dollars. When the store was fired it contained corn and hay and some oats and flour.</p> <p>Cross examined, the witness said that when, three weeks before the fire, the defendant asked him if he wanted to make fifteen or twenty dollars, he and defendant were sitting at the dinner table next to each other, on the west side of the table. Jesse Hunter was sitting at the table, on the same side, and to the right of the witness, but whether immediately next to witness, the witness could not say. The defendant asked that question in a somewhat suppressed tone of voice, and witness was unable to say whether or not 'any of the persons at the table, other than himself, heard it. Witness did not remember who first suggested the subject when he and defendant went to their room that night, nor did he remember the hour of the night when they discussed it, nor whether they had gone to bed or were yet sitting up. They discussed the matter every Sunday night until the store was fired, but the witness could recall nothing of a particular nature said by defendant about it except that it was his purpose to swindle the insurance company and was fixing his books to show stock on hand equal in value to the face of his insurance policy. During the time covered by the witness’s testimony he was engaged in painting for Captain Farr during the day, and in playing the fiddle at night in a saloon. Witness could not say. how late he generally stayed up at night, but he usually found the defendant in the room when he went to retire. When, Alexander McOune got back to the defendant’s store with the oil, the defendant took the oil and placed it under the counter. The witness knew that coal oil was used by painters in plying their trade, but witness did not supply either the paints or oils used by him in his work for Captain Farr. Everything was supplied him by Captain Farr. Witness saw McGough about ten o’clock on Sunday morning, and told him that he had the key to defendant’s store, and would give it to him when he got through with it. Witness did not remember that he told McGough that he wanted to use the key to go into the store to get some of his clothes, though he may have done so. Defendant was not in a buggy when he gave witness the store key on Sunday morning, nor was Elisha Lott with him at the time. The witness knew no other reason than that it was raining why the defendant, at the walking match, on Saturday night told him to postpone firing of the store. Witness was arrested on the day after the fire, since which time, with the exception of a few days when on bail, he had been confined in jail. While out on bail the witness visited Cleburne, and while in that town saw and talked with Jo Earle, but he did not, at that or any other time, tell Jo Earle that defendant did not hire him to burn the house and had nothing to do with the burning of it; nor did Earle remark to witness that he had been told that witness had testified that defendant agreed to pay him money to fire the house, and that he replied to Earle: “That is a mistake.” Witness was not testifying in this case under any inducement offered him by the State. He expected to be released upon the conviction of the defendant, but such hope and expectation were not based upon any promise of immunity made to him by the State.</p> <p>Alex McCune, colored, testified, for the State, that he was in defendant’s feed store one evening in April, 1887, when Charles Irwin told him that he wanted him to get him two one gallon cans of coal oil. He then gave witness one dollar and five cents in money, and asked defendant where would be a good place to get the oil. Defendant replied that the witness should be sent to Skipper’s store for it. Witness then went to Skipper’s store and bought two one gallon cans of coal oil, took them back to defendant’s store, and gave them to Irwin, who put them under the counter. He also gave Irwin twenty-five cents, which was returned to him as change when he purchased the oil, and Irwin gave him ten cents for going for the oil. This all occurred between three and four o’clock on the evening of the Saturday prior to the Sunday night of the fire. “ One of the-cans had a hole in it near the thing where the ring went in it on top.”</p> <p>Cross examined, the witness said that when he entered the feed store at the time stated the defendant was sitting at his-desk writing and Irwin was standing three or four feet distant from him just at the outside edge of the counter. Defendant was still at his desk writing when Irwin gave witness-the money and sent him after the oil, and was similarly situated and engaged when witness got back with the oil. Witness remembered writing a letter to the defendant while he, defendant,, was in Cleburne, after the fire, in which he proposed that if defendant would pay him five dollars he would not testify in this case. Defendant never paid him the money demanded, nor any other sum. When witness started to Skipper’s after the oil,. Irwin asked defendant what would be a reasonable fee to pay witness for going after the oil, and defendant replied that a dime was sufficient.</p> <p>Mr. Lemaster testified, for the State, that he was clerking in Skipper’s store in April, 1887. He remembered that, in the afternoon of the Saturday prior to the fire in defendant’s store, the-negro Alex McCune came to Skipper’s store and purchased two-one gallon cans of coal oil. He handed the witness ninety cents-in payment, and witness returned him ten cents.</p> <p>J. M. Skipper testified, for the State, that in April, 1887, the-selling price of coal oil at his store was forty cents per gallon.. The witness was familiar with the premises in which the defendant kept the feed store, and which was fired one night in April, 1887. That store house belonged to Mrs Mary Gandy, who, before leaving Granbury, some time prior to the fire, constituted the witness her agent to look after and rent the same.. About November 1, 1886, the witness, as the agent of the said. Mary Gandy, leased the said store house to J. M. Rogers, the-father of the defendant, to be occupied by him as a feed store. A feed store was then opened in the said house under the name of J. M. Rogers, but to all appearances was conducted by the ■defendant, who paid the rent of the same to witness. The said house was occupied by the defendant, but was leased to J. M. Rogers at the time of the fire.</p> <p>Charles McGough testified, for the State, that he remembered the fire in the feed store occupied by the defendant. That fire •occurred on the night of a certain Sunday in April, 1887. The witness did not know who owned the said store. The witness was frequently in the store, and knew that the business was conducted by the defendant. He, witness, was in charge of the store on the Saturday evening preceding the Sunday night of the fire. His charge of the store on that evening extended from about two o’clock until nearly dark. Witness’s said charge amounted to this: The defendant went off to attend a base ball game and asked the witness to keep a watch on the ■store and serve any customer who might come to purchase supplies, and in that way, from his place in another store, sixty feet distant, the witness looked after the feed store on the said Saturday evening. At about dark on that Saturday evening the said store contained about seventy-five or a hundred bushels of corn, five sacks of flour, eight hides, one sack of •oats and a lot of loose hay, the whole of which was worth perhaps one hundred and twenty-five dollars. Later on that evening the defendant told the witness that he was going to Cleburne after the walking match was over, and that he wanted witness to stay in the store until he got back, and that he would leave the key to be delivered to witness. Witness next saw the defendant at the walking match on that night, when he told the witness that he would not go to Cleburne until the next morning, as it was then raining.</p> <p>Cross examined, the witness said that he saw Charles Irwin on Sunday morning, when Irwin told him that he had the key to defendant’s store. Witness asked him for it, and he said that .he had to get some clothes out of the said store, after doing which he would give it to witness. He did give the key to witness between seven and eight o’clock on that Sunday evening. Witness saw the defendant unloading something from a wagon •at his store on Saturday night, and next morning saw four or .five bales of hay in the house.</p> <p>T. H. Heiner testified, for the State, that he was at the fire .and saw five or six bales of burning hay in the house. He saw .a can of coal oil taken out of the house on that night, and on the outside of the house saw an empty coal oil can from which the spout had heeu cut off. On the next morning the witness took the two said cans to Reichstetter’s store and left them, there. The house, during the fire, contained between forty and fifty bushels of corn, two sacks of oats and some hay and flour. The fire burned the partition wall in the house, the canvas on the ceiling and some chicken coops.</p> <p>Jesse Hunter testified, for.the State, that the defendant, Charles Irwin and himself were boarders at Farr’s hotel in April, 1887. While at the supper table, one evening before the fire, the witness heard the defendant ask Irwin if he did not want to make some money. Irwin, and not defendant, said in reply, “I will see you after supper.” Ho amount of money was specified by defendant, and nothing was said about fifteen or twenty dollars. At this time the witness and. defendant were sitting next to each other at the north end of the table, and Irwin was sitting immediately opposite to them.</p> <p>Eugene Morgan testified, for the State, that he was a clerk in Reichstetter’s store at the time of the fire. He was at the fire, and saw two coal oil cans, which, on the next morning, were deposited at Reichstetter’s store, where they remained for some time.</p> <p>J. L. Bates testified, for the State, that he was in Skipper’s store on the Saturday evening prior to the fire, when a negro, whom he has since recognized in Alex McCune, came into that-store and purchased two one gallon cans of oil. Witness remembered that the negro objected to one of the cans because it had a hole in it. On the morning after the fire the witness saw two coal oil cans at Reichstetter’s store, which two cans looked like those the negro bought at Skipper’s store. The top was melted from one of those cans when witness saw it in Reichstetter’s store.</p> <p>D. C. Cogdell testified, for the State, that, in November, 1886, the defendant came to the witness and took out a six hundred dollar insurance policy on the stock in the feed store then managed by him. He took the policy in the name of his father, J. M. Rogers. He afterward came to the witness and had the policy changed to include the store fixtures. The policy was placed in Gordon’s safe, since when the witness had not seen it.</p> <p>A. P. Gordon testified, for the State, that at the time of the fire, he was doing business in the house on the extreme southeast corner of the public square, about sixty feet from the feed store which was managed by the defendant. Witness got to> 4¡he fire a short time after it started, and found his brother and -Stringfellow already there. Hay and corn—principally hay— were then burning. The aggregate value of the contents of the store, which consisted of hay and corn and small quantities ■of oats and flour, was about one hundred and fifty dollars. The feed store was opened in November, 1886. A short time thereafter the defendant took out a--six hundred dollar insurance policy on the stock. He showed the policy to the witness, remarking that he knew little or nothing about insurance. Hpon ■examining the policy, the witness discovered that it did not cover the store fixtures, and suggested to defendant the importance of having it changed to cover the said fixtures. The •change was afterwards made in the policy. After that the witness and defendant often talked about insurance. On one occasion the defendant remarked that the feed store was liable to take fire at any time, and asked witness if, in case of it catching fire, would it be likely to fire his, witness’s, store. On another occasion he asked witness how much insurance he was carrying, and suggested to him to increase it, as he might be burnt out.</p> <p>John Reichstetter testified,. for the State, that, during the time the defendant kept the feed store in Granbury, he kept his books in the witness’s safe, depositing them there every night. The witness was a book keeper, and as such was familiar with the science of book keeping. At this point a “blank” or memorandum book was handed to the witness, which he identified as ■one of the books used by the defendant in his business, and which he kept in the safe of the witness. The witnesa was then •directed to examine the entries on pages 1, 4 and 6, under the <late of April 16, and explain the same. Witness said: “Here, ■on page 1, I find under the head “Amt. corn bought,” an item of date April 16, as follows: ‘April 16th. Tear, 8645 lbs., #88.00.’ This entry represents corn in the ear, bought and received on that day, to the amount of eight thousand six hundred and forty-five pounds at a cost of eighty-eight dollars. Here on page 4, I find under the head ‘By hay, acct.,’ and under date April 16, this entry: ‘April 16, hay, 3000 lbs., 15.00. This represents three thousand pounds of hay received by the house on that day, at a cost of fifteen dollars. Here on page 6, under the head of ‘millet,’ I find this entry: ‘To millet seed, 50 bu., 50.’ This represents fifty bushels of millet seed received on that day at a cost of fifty dollars. I do not know who made “these entries nor when they were made, and only speak as an expert book keeper.”</p> <p>Charles McGough, recalled by the State, testified that he knew the book about which the witness Reichstetter had just testified. It was one of the books kept by the defendant in his ■conduct of his business. The witness had often seen the defendant writing in said book. He was familiar with the hand writing of the defendant, and would say that the entries testified about by Reichstetter were in the defendant’s handwriting. The State then introduced the memorandum book in evidence, and rested.</p> <p>J. M. Rogers, the father of the defendant, was his first witness. He testified that he removed to Cleburne, Johnson county, Texas, from Pike county, Missouri, in the spring of 1886, and had resided in Cleburne ever since. The witness and S. B. Hail were joint proprietors of a grain and feed store in Cleburne, and of another in Granbury from 1886 until February 1, 1887, when witness bought the interest of Hail. From the first, however, the business was conducted in the name of the witness. The branch house in Granbury was opened on November 2, 1886, in the store which witness leased from Mr. J. M. Skipper, and the defendant was placed in charge of it on a ■salary of twenty-five dollars and board per month. Witness held the house under the said lease at the time of the fire, and the defendant was in possession of the same as clerk and agent of the witness. Witness instructed the defendant to take ■out a six hundred dollar insurance policy on the stock, and ■caused him to have it changed afterwards to include the store fixtures. Defendant had no interest whatever in the issuance of the policy. On April 13, 1887, the witness wrote the letter ;fco the defendant, which reads as follows:</p> <p>Cleburne, Texas, April 13, 1887.</p> <p> ■Charlie: </p> <p>Yours received. I think mills will start on Monday morning, likely. I will get enough bran to supply my trade, and then, as soon as I can get you a load, will start it over to you with the ■oats, but hay can’t be had at all. My trade have to use bran for hay. I have had four loads of hay this week and it is all gone. I went out in the country yesterday to see if I could get any, ■hut got none. I have bought three loads, to come in this week. We will look for you Sunday. Don’t fail to come. All well and business fair. Ray will be disappointed about coming up Saturday, but will wait until the twenty-sixth. Had a little shower this morning. Ho more now.</p> <p>Your Pa.</p> <p>P. S. Since writing this a man has just come and says he has a quantity of hay to sell. I will send thirty bales of it along with millet seed—-get up there Saturday. The corn I bought for you will likely come in Saturday—about one hundred and twenty bushels. Make arrangements to receive it. There is fifty bushels millet seed. You will settle with the parties for the hauling. Below find bill.</p> <p>About 120 bushels corn, 65 cents; 30 bales hay, 50 cents per 100 pounds; 50 bushels millet seed, $1 per bushel. You will pay 20 cents per 100 pounds freight. The envelope which enclosed this letter was addressed to “Mr. C. M. Rogers, Granbury, Texas,” and was postmarked “Cleburne, April 13,” and “Granbury, April 14.”</p> <p>Proceeding, the witness testified that he contracted for the corn mentioned in the said letter, on April 13, the same to be delivered to the defendant in Granbury on the following Saturday, at sixty-five cents per bushel, with twenty cents per hundred to be added as freight. The witness did not remember the name of the man with whom he contracted for the said corn, but expected the defendant to pay for it on delivery. The millet referred to in the letter, the witness had in stock in Cleburne, and expected to get it to the defendant in Granbury on the Saturday mentioned, but failed to do so. The hay mentioned in the letter was contracted for by the witness with Mr. John Haley, who lived near Cleburne. The witness did not know whether or not that hay was delivered to defendant at _ Granbury. On the Sunday morning referred to in the said letter, the defendant came to witness’s house in Cleburne in a buggy with Elisha Lott. They arrived about eleven o’clock a, m. Witness heard of the fire in Granbury about dark 'on Monday night. Defendant returned to Granbury on Tuesday.</p> <p>Cross examined, the witness said that it was his information that the defendant was arrested as soon as he reached Gran-bury on Tuesday morning. Witness went to Granbury on Wednesday morning to see about the arrest of the defendant. The witness was unable now to give the name of the man from whom he contracted to buy the corn mentioned in the letter read in evidence. That man said that he lived about ten miles south of Cleburne. Witness did not pay anything on the contract for the corn, because he expected the defendant to pay for it on receiving it, although he said nothing about that in his letter. The witness did not send the millet to Granbury because he was unable to get wagons to haul it in time to get it there by Saturday. The witness expected his son on Sunday, and concluded not to send the millet until he saw him. He wrote the body of the letter on the morning of the thirteenth, and the postscript in the evening, just before the closing of the mail. Witness did not recollect that he testified on the examining trial that he bought the corn on the twelfth and the hay on the thirteenth. He did not buy the corn at all. He merely contracted for it, to be delivered to the defendant in Gran-bury.</p> <p>Jo. Earle testified, for the defense, that, in the fall of 1887, soon after the release of the State’s witness Irwin, on bail, he met the said witness on the streets of Cleburne, and got to talking to him about his, Irwin’s, previous escape from jail. In the course of that conversation witness remarked to Irwin that he had heard that defendant hired him to burn the store, paying him fifteen or twenty dollars for doing so. Irwin replied: “Ho, that was a mistake; it was another man.”</p> <p>S. B. Nail was next introduced by the defendant, and testified, as did J. M. Rogers, as to their business connection from the fall of 1886, until he sold out to Rogers on February 1, 1887, and as to the defendant’s connection with the business in Granbury. He testified further that the stock on hand when the insurance policy was taken out did not amount to more than two hundred dollars in value, but was immediately increased until the inventory taken in December, 1886, showed it to exceed the value of eight hundred dollars. Its value on February 1, 1887, when witness sold his interest, was in excess of six hundred dollars.</p> <p>Elisha Lott testified, for the defense, that he lived in Cleburne, and in April, 1887, worked in the livery stable of Willis Souther. On Friday before the fire in Granbury, the witness took a passenger in a buggy from Cleburne to Granbury, and was preparing to start back on the next morning when the defendant came to him and said that he wanted to go to Cleburne late that evening, and that, if witness would wait and take him back in the buggy, he would pay witness’s board, livery bill, and a fare from Granbury to Cleburne. Witness put up his team and waited until evening, when the defendant prevailed on him to wait until after the walking match which was to take place that night. A rain came up after dark, and witness and defendant decided not to start until the next morning. They got up about day break on Sunday morning, and after getting some cold breakfast, witness hitched his team to his buggy. Defendant then got in the buggy with witness and asked him to drive by the house of Charles McGough, with whom he wished to leave his store key. About that time the witness observed Charles Irwin standing in the door of a saloon, and suggested to defendant to send the key to McGough by Irwin. Defendant agreed, and witness drove the buggy to a point in front of the saloon. Defendant then threw the key to Irwin and requested him to give it to McGough as soon as he came down town, and to tell McGough to look out for some grain that might arrive during the day. Irwin took the key, agreeing to do as requested by defendant, and witness and defendant went on to Cleburne, where they arrived about eleven o’clock. En route, and about half way between Cleburne and Granbury, they met some wagons loaded with grain, going towards Granbury, the drivers of which and defendant had some talk. While in Granbury on Saturday, the witness was in defendant’s feed store. He went from the hotel, after dinner, to the said store, and remained there until half past one o’clock, when the defendant left to attend a base ball game, and the witness returned to the hotel. Witness did not, while he was at the store in the evening, see anything of Charles Irwin or a negro about the said store. The witness was positive that defendant threw the store key to Irwin from his seat in the buggy; that he did not get out of the buggy, and that he did not go with Irwin into an alley between a saloon and a store and give the key to Irwin.</p> <p>Cross examined, the witness said that he had never testified in this case before. He supposed that he was in Cleburne at the time of the first trial, but was not sure. He went to Colorado about the time of the said trial, but whether before or after he did not know. Witness had never talked with the defendant about the testimony he intended to give in this case. He had no recollection of talking to Willis Souther, a short time after the arrest of the defendant, or at any other time, at said Souther’s stable or elsewhere,in which this case was discussed, and in which talk Souther stated to witness that it was then current rumor that the defendant had given Charles Irwin ten dollars to burn the store. The witness had no recollection ■of ever stating to the said Souther that he, witness, could or might have made that ten dollars. If witness ever made such ■a remark to Souther he made it in fun. Defendant never said a word to witness about firing the store. The witness would now state most positively that he never, at any time or place, told Souther that he knew beforehand that the feed store was going to be fired; that defendant tried to get him to fire it, and that he was out with defendant and Irwin on Saturday night, and saw them get the coal oil and put it under the counter in the store.</p> <p>The defense rested.</p> <p>Willis Souther testified, for the State, in rebuttal, that the defense witness Elisha Lott was in his employ as a stable hand in April, 1887. On the Friday before the alleged offense he sent the said Lott in .a buggy to take a passenger from Cleburne to Granbury. Lott failed to get back on Saturday, as directed, but returned before noon on Sunday. When asked by witness why he was detained, he said that defendant prevailed on him to defer his departure until Saturday evening, when he would accompany him; that he then prevailed on him to stay over until after night, and by that time it was raining and they deferred their departure until morning. On the day after the defendant’s arrest the news was brought to Cleburne that the defendant had paid Irwin ten dollars to fire the feed store. When witness went to his stable he mentioned that report to Lott. Lott replied that “it was just as he expected;” that he knew the store was going to be burned; that he was out with ■defendant and Irwin nearly all of Saturday night, and knew about the purchase of the oil, and where it was put in the store to be in readiness, and that he could have made that ten dollars himself.</p> <p>Cross examined, the witness said that he met Lawyer Poindexter at Farr’s hotel just before court met this morning, and Poindexter asked him what he was doing in Granbury. He told Poindexter that Lott told him that he could have made that ten dollars. He did not tell Poindexter that that was all that he knew.</p> <p>A large number of witnesses, residents and officials and ex-officials of Pike county, Missouri, testified, in behalf of defendant, that they had known defendant and his father for many years, and that up to the time of their removal to Texas, in the spring of 1886, the reputation of the defendant for honesty and fair dealing was excellent, and they did not believe, from what they knew of him and his reputation, that he would incite another to commit arson. The reputation of defendant’s father for truth and veracity in Pike county was good.</p> <p>S. B. Nail and several other citizens of Cleburne, who qualified themselves to speak of the reputation of defendant for honesty, and that of J. M. Rogers for truth and veracity, during their residence in Cleburne, pronounced both to be good.</p> <p>In the opinion of the court is given the substance of the testimony held to have been erroneously excluded by the court below. According to it, the defendant, when he and Scott met. the wagons loaded with produce, directed the teamsters to take the produce to a certain railroad camp near Granbury, and, in case the railroad men did not take all the produce, then to proceed with the remainder to Granbury and deliver it at his, the defendant’s, feed store.</p>

<p>Appeal from the District Court o f Marion. Tried below before the Hon. W. P. McLean.</p> <p>The conviction in this case was in the first degree for th© murder of Lewis Rucker, in Marion county, Texas, on the tenth day of June, 1888. A life term in the penitentiary was th© penalty assessed against the appellant.</p> <p>Constable G. W. Terry (white) was the first witness for the State. He testified that, on the morning of June 10, 1888, he was sent for and went to the house of Bowie Browning, in Marion county, to investigate the killing of Lewis Rucker. He found the dead body of the said Rucker lying on the road side, about two hundred yards distant from the said Bowie Browning’s house. He at once made an examination of the dead body and of the surroundings, which said examination disclosed that the said Lewis Rucker had been recently killed by gun shots. Two buckshot had entered Rucker’s left breast, immediately over the heart, and two other buckshot had penetrated the left arm. Six other buckshot had entered the rails of a fence opposite and near the point in the road where the dead body lay. Some persons present at the time found on the ground some fragments of old rags or tow, which, being powder burned, had the appearance of having been recently fired as wadding from a gun. The witness was positive that the gun wadding described was old, torn rags or tow, and not cotton. Quite a number of people, the witness could not satisfactorily estimate the number, were on the ground and about the body when he arrived, which was about nine o’clock in the morning. At about three o’clock on that afternoon the witness arrested the defendant in his house as the party who had fired the fatal shot. At the time of the arrest the witness found a double barreled shot gun in the said house. The right hand barrel of that gun was loaded, but it had been recently discharged. The witness was positive that the said barrel of the gun had been recently- discharged. He discovered that fact by a critical examination of the same, which resulted in finding fresh signs of powder burn at the muzzle. The left hand barrel was loaded, and its condition showed that it had not been discharged for a considerable time. The cap on the tube of the said left hand barrel had, however, been recently exploded, the signs of such explosion around the base of the tube being fresh and distinct. The witness was a fire arm expert, and had had much experience with guns. The witness unloaded the gun he found at the defendant’s house, and found it to contain charges of buckshot similar to the shot found in the fence rails. He did not extract any of the shot from the said rails, but saw several that were only partially imbedded, and easily determined their size. Wadding of old rags was found in the gun.</p> <p>Cross examined, the witness testified that a pistol was found on the body of the deceased. It was taken from one of the pockets of the pantaloons. It was a five shooter, three of the chambers being loaded, and the others empty. Neither of the said empty chambers had been recently discharged. The witness did not find the rag wadding himself, but was present and saw some of the parties about the body pick it up from the ground. He afterwards saw it at the coroner’s inquest. The witness was unable to say why the gun found at the defendant’s house, the buckshot and the wadding described, were not present upon this trial.</p> <p>Lewis Taylor (colored) testified, for the State, that he lived in Marion county, Texas, about two miles distant from, the house of the defendant. He knew the defendant, and was acquainted with the deceased prior to his death, which occurred on the morning of Sunday, June 10, 1838. The witness saw the dead body of Lewis Rucker about nine o’clock on the said morning. About one or two hours by sun on that morning the defendant, riding his mule, stopped at the gate of Mary Browning's house, where the witness was living, and called the witness. Witness went into the yard and stopped at a point near the gate, and from that point exchanged a few words with the defendant, who sat on his mule on the opposite side of the gate. Defendant asked witness if he knew where Sarah Carter was, to which question the witness replied that he did not. About that time Frances Rucker, the sister of the deceased, came running towards the gate. She was weeping, and very much excited. The defendant started to ride off, when Frances hallooed to him: “You have killed my brother Lewis, and you must not run off, for I will have you brought back!” Defendant made no reply to Frances, but rode off in a pace. Frances Rucker was not more than fifty steps, if that, from the defendant when she hallooed to him as stated. Witness supposed that the defendant heard what the said Frances said to him, as she spoke in a loud tone of voice, and was quite as near the defendant as she was to him, witness, and he heard her plainly. As the defendant rode off, the witness asked him where he was going, and he replied that he did not know. Witness could assign no reason for asking that question of defendant. Mary Browning, the sister of the defendant, owned the place at which the witness lived. She was in the house while the defendant was at the gate. She did not go to the gate during that time, nor did the defendant see or speak to her. The defendant was a white man, and Sarah Carter, the woman for whom he inquired of the witness, was a negress. She and the defendant lived together, and had five children. The witness was a negro. Mary Browning, the sister of defendant, on whose place the witness lived, was a white woman. The State at this point asked the witness if he and Mary Browning did not live together, and occupy the same room, but the defense objecting, the witness was not permitted to answer the question. There were several houses on Mary Browning’s place, and the witness occupied one of them. Frances Rucker (colored) lived in the house with Bowie Browning, the brother of the defendant.</p> <p>Frances Rucker (colored), the sister of the deceased, testified for the State, that the deceased was killed about sunrise on the morning of June 10, 1888. The witness, who lived with Bowie Browning, was getting breakfast when the fatal shot was fired. She heard the report of the gun, which was fired at a short distance from the house, and almost immediately after the discharge she heard from the same direction the explosion of a gun cap—the gun failing to fire the second time. A few min, utes after the report of the gun and the explosion of the cap, Bowie Browning came into the cook room from the cow pen, where he had been milking, and told the witness that her brother, who had gone to drive up some calves, had been shot down in the road. Witness ran to the place indicated by Bowie, and found her brother lying on the ground, his feet in the road, and his body beyond it. She saw that he was dead, and did not go immediately to the body, but ran at once to the houses-of Mr. Chism, Mr. Chapman and other neighbors, to report the-assassination. She then went on to the house of Lewis Taylor. (Mary Browning’s.) Just before reaching that house she saw the defendant, on his mule, at the gate, talking to Lewis Taylor, who was just inside of the gate. As soon as the defendant caught sight of the witness, he started to ride off, and witness hallooed to him: “You have killed my brother, Lewis. You need not run away, for I will have you brought back.”' Defendant looked over his shoulder at witness, but made no-reply, and rode off, whipping his mule violently in order to make it run, but succeeding only in urging it to a pace. At the time the witness hallooed at the defendant and charged him with the murder of her brother, Lewis Taylor was standing at the gate, and Joe Crisp was in the yard, walking towards the gate. The distance between Bowie Browning’s house, near which the deceased was killed, and the defendant’s house was about half a mile.</p> <p>On Saturday, two weeks before the killing of the deceased, the defendant and Sarah Carter, and Jennie Carter, the sister of Sarah, were at Bowie Browning’s house, at which time, in the presence of the parties named and the witness, the defendant charged Sarah Carter of carnal indulgences with the deceased; saying that Mat Browning, the eleven year old son of Sarah Carter by another man than defendant, told him, defendant, that he, Mat, saw her and deceased in the act. In that same conversation, the defendant said to Sarah Carter: “If you ever leave me, I will kill Lewis Rucker.” Sarah Carter denied positively that she had ever been guilty of a carnal act with the deceased, and sent for her son Mat, who denied that he had ever told the defendant that he detected the deceased and the said Sarah in the carnal act. The defendant and the deceased then talked the matter over for awhile at the house. They then went together to the smoke house, talked awhile, and came back apparently on friendly terms, which they main, tained until the following Saturday, which was the day before the assassination. During the said week the defendant and deceased visited each other on friendly terms, and the defendant shaved the deceased. On Saturday, June 9, 1888, the day before the fatal Sunday, Jennie Carter, who lived with her sister and the defendant, went with witness to a small creek near the defendant’s house, to catch some fish. Deceased and Jim Jordan, hunting squirrels, came to where witness and Jennie were fishing, remained a short while, and went off. Witness and Jennie returned to the defendant’s house about sun down, and soon afterwards the witness heard the defendant say to Sarah Carter: “I have caught you and Lewis Rucker. I found your bed out in the woods, made of pine tops, and saw where you lay together.” Thereupon, Jennie, speaking to the defendant, said: “You are mistaken about Sarah. It was not her.” Sarah then said to the defendant: “I am tired of you accusing me of Lewis Rucker.” Defendent replied: “It was either you or Jennie, and I intend to put a stop to Lewis Rucker.” Witness left soon afterwards and went home, to the house of Bowie Browning. Deceased was killed on the following morning. Deceased, at that time, had been living at Bowie Browning’s house about nine months, and was in the habit of going after and driving up the calves every morning, and usually went in the same direction, and it was in that direction from home that he was killed.</p> <p>Jennie Carter (colored), the sister of Sarah Carter, was the next witness for the State. She testified that, at the time of the assassination of Lewis Rucker, she had been living at the house of the defendant and her said sister a little more than a year. Defendant and Sarah occupied the same room and bed, and had one dead and five living children. The witness and Frances Rucker went to the creek near defendant’s house, fishing, on the day before the assassination, and while there were joined for a short while by the deceased and Jim Jordan, who were squirrel hunting. Witness and Frances went back to defendant’s house late in the evening, and shortly after they got back the defendant, in the presence and hearing of witness, told Sarah Carter that he had caught her, and that he had found a bed of pine tops in the woods where she and deceased had been. Witness then told defendant that he was mistaken about Sarah. Defendant then said that it was either Sarah or the witness who had occupied that bed with deceased, and that he intended to put a stop to it. He did not say then that he intended to put a stop to deceased. Sarah Carter then told defendant that she was tired of being accused by him of the deceased, and would not submit to it. Frances soon left to go home, and defendant left the place to drive up his horses, and while he was gone after his horses Sarah Carter left the place, •saying that she was going to the house of a colored man named Weatherall. When defendant returned and missed Sarah he asked witness where she was, and witness told him that she had gone. After supper the defendant saddled his horse, and said that he was going off to hunt for Sarah, and witness told him that he would find her at Weatherall’s. Defendant returned between twelve and one o’clock on that night, and reported that Sarah was not at Weatherall’s, and that he had failed to find her. Defendant appeared to be much troubled, and witness told him to go to bed, and that she would find Sarah next morning and bring her back. Defendant then went to his room and lay down across his bed, without putting off his clothes. Before •day light on the next morning witness awakened Mat Browning, who, with the other children, was sleeping in her room, and sent him to the lot to saddle a horse for her. Witness left defendant’s house about day light to go to Weatherall’s after Sarah. She had just reached Weatherall’s house, a mile or a mile and a half distant from defendant’s house, when she heard the report of a gun fired in the vicinity of Bowie Browning’s-place. The defendant was lying across his bed with his clothes on and was not asleep when, just before starting to Weatherall’s on the fatal morning, witness looked into his room. Witness got back to defendant’s house with Sarah about nine or ten o’clock on that morning, and found the defendant standing on-his gallery. Witness saw the dead body of Lewis Rucker between ten and eleven o’clock on that morning.</p> <p>Cross examined, the witness said that she heard the quarrel at Bowie Browning’s house on the second Saturday before the killing. On that occasion the defendant accused Sarah and the-deceased of maintaining carnal relations with each other, which charge was denied by both Sarah and deceased. Sarah then sent for her son Mat, who denied that he ever told defendant that he detected his mother and deceased in the carnal act. Deceased and defendant then settled their dispute, and visited each other on friendly terms until the day before the homicide.</p> <p>Joe Crisp (colored) testified that he lived at Mary Browning's place—the same place where Lewis Taylor lived. He saw the defendant and Lewis Taylor at the gate at Mary Browning’s yard, talking to each other, early on the morning of the fatal day. When defendant first came to the gate the witness was in the horse lot. The witness went towards the parties at the-gate by walking around the house. As he approached the-gate from the horse lot he heard Frances Rucker, coming up the road, crying and raving. As she approached the gate, where defendant and Taylor still were—defendant on his mule outside of the gate, about three steps distant from Taylor, who was standing just inside the gate—she said to defendant, in a loud voice: “You killed my brother, and need not run off, for I will bring you back.” Defendant rode off at once. If he looked back the witness did not observe it. Frances was about seventy-five yards distant from witness when he saw her, and about the same distance from the defendant. Witness heard distinctly what she said to defendant. Defendant rode off in a pace, whipping his mule. While he was at the said gate, the defendant told his sister, Mary Browning, who was then in the yard, to take care of his children, as he was going off. He gave that direction to his sister before Frances Rucker spoke to him.</p> <p>Mat Browning (colored) testified, for the State, that he was eleven years old, had attended school and could read and write. He was the son of Sarah Carter, and lived with her and defendant. Witness, about day light on the morning of the killing, saddled a horse at defendant’s place, which Jennie Carter rode off in search of Sarah Carter. At about sun rise the defendant came into the room then occupied by his children, kissed them all, and told them good bye. No person was at the defendant’s house after Jennie left, except the defendant and the children.</p> <p>J. M. DeWare, sheriff of Marion county, Texas, testified, for the State, that he went to and examined the place of the tragedy on the day after it occurred. He found a great many tracks about that place, but became satisfied that the party who fired the fatal shot fired it from behind.a fallen log, twenty-three steps from the place where the deceased fell. The tops of bushes between the fallen log and the point in the road where the deceased fell had been cut by bullets or shot. On the tops of bushes, on the line between the two said points, the witness saw small pieces of lint cotton, which, being powder stained, appeared to have been fired from a gun. He saw no rag wadding on the ground or elsewhere. From the point where the killing took place to the defendant’s house, by way of the main • road, was between a half and three quarters of a mile. The shot found in the fence was buried in the wood to the depth of from a quarter to a half an inch. Witness saw some of the shot which were said to have been cut from the fence. They were low mould buck shot.</p> <p>The State closed.</p> <p>William Chism (white) was the first witness for the defense. He testified that he knew the deceased for the seventeen or eighteen years preceding his death. Deceased was raised in the neighborhood in which he was killed, and lived there always except the year or two that he was absent from the county. Frances Rucker, the sister of the deceased, came to the house of the witness early on the morning of June 10, 1888, and told the witness that her brother Lewis had been killed, and that his body was lying at a certain point in the road. Witness and Chapman then went to a point indicated by Frances, and were the first persons to reach the body of the deceased. The witness found a piece or two of lint cotton wadding that had been recently fired from a gun, but saw no rag or tow wadding near or about the place of the killing. The wadding of lint cotton found by the witness was the only wadding that was in evidence before the jury at the inquest upon the body. The body of the deceased, when witness saw it,on that morning, was lying on the side of the road about two hundred yards from Bowie Browning’s house. The shots that struck the fence buried themselves in the wood. The witness dug one of them out and found it to be a buckshot. It was flattened just- as any other leaden missile fired against hard wood would be. Witness was present and saw G. W. Terry unload the defendant’s gun. Both barrels were loaded, and the wadding of each was of rags. One of the loads had been in the gun for some time, but one of the barrels had been recently discharged. The witness could not tell what length of time had elapsed since the discharge of a load from that barrel, but not longer than two, three or four days, which was as near as anybody could estimate, by signs on a gun, the time that had elapsed since its discharge. A five shooter pistol, three chambers loaded and two empty, was found in a pocket of the deceased’s pants. It was in some manner caught or fastened in the pocket, and was removed with much difficulty, and only after efforts made separately by witness, Mr. Mimms and Doctor Dargan.</p> <p>Jim Jordan (colored) testified, for the defense, that he was a nephew of the deceased. The deceased never in his life time told witness that he he had killed a man while working on the railroad, and that he was on a constant lookout for danger. This witness denied that he ever told Mr. Camp and Mr. Armisstead, in the presence of Sheriff DeWare, that deceased had ever made any such statement to him.</p> <p>Sheriff DeWare testified, for the defense, that, during this trial, Messrs. Camp and Armistead, attorneys for the defendant, by leave of the court, had an interview with the witness Jim Jordan, in the presence and hearing of the witness. In the course of that interview the said Jim Jordan told- the said Camp and Armistead that the deceased, before his death, told him that he had killed a man and was on a constant lookout for trouble, and for that reason always carried arms.</p> <p>Bowie Browning, the brother of the defendant, testified, in his behalf, that, at the time of the killing, the deceased had lived at his, witness's, house and in the employ of the witness, about nine months. According to his statement, he came to witness’s house fronda point on the railroad where he had been at work. He told the witness that he had killed a man in a fight, with a spade, and that he was afraid the dead man’s relatives would hunt him down and kill him. He carried a pistol 'at all times, and sometimes a double barreled shot gun. Witness was in his cow pen milking when the fatal shot was fifed. He then went near enough to the point of the shooting to see the body of deceased lying in the road, and then he went to the house and told Francés that her brother had been shot. He did not go to the body until Chism and Chapman reached it.</p> <p>Cross examined, the witness said that he had known the deceased since his, deceased’s, boyhood. Except the short time he was away working on the railroad, the deceased had lived always in the neighborhood in which he was killed. The deceased did not tell witness the name of the man he had killed, nor whether that man was white or black. He said that the killing took place on the railroad near Texarkana. The witness never heard of that killing except from the deceased, and he had never heard of any man being killed on the railroad near Texarkana, by being struck over the head with a spade. Deceased was in the habit of going after the calves early in the morning, and of driving them to the house over the road on which he was killed—a fact known to the defendant.</p> <p>The opinion sets out the substance of the absent testimony upon which the application for continuance was based.</p>

<p>Appeal from the District Court of Smith. Tried below before the Hon. F. J. McCord.</p> <p>The appellant in this case was convicted in the second degree tfor the murder of Isham Amos, in Smith county, Texas, on the twenty-sixth day of July, 1888. A term of five years in the penitentiary was the penalty assessed by the verdict.</p> <p>Caleb Cooper was the first witness for the State. He testified that he lived in Smith county, Texas, in a house of three rooms, the gallery of which fronts east. The deceased was shot on the said gallery on the night of July 26, 1888, and died within fifteen minutes thereafter in the kitchen of the said house. The deceased, who was a mill hand employed at Smith’s mills, about two miles distant from witness’s house, came to the witness’s house on that night for the purpose of accompanying the witness to the city of Tyler. The shooting occurred at about good dark, at which time the deceased and one Willis King were sitting near each other on the gallery, the seat of the deceased being the nearest to the southeast corner of the same. When the witness left the said parties on the gallery, he went into his kitchen to help a little girl clear off the supper table, his wife at the time being in her room sick. While he was in the kitchen he heard the report of a gun fired from some point near the house, followed by the screams of his wife. He ran to the gallery at once, taking that route to go to his wife’s room, and met King and deceased going towards the kitchen door, the latter holding both hands to his breast, and ejaculating: “Oh! Oh! Oh!” Without stopping, the witness continued to his wife’s room, fearing that she had been hurt. He found her unhurt, but much frightened, excited and crying. It took him about fifteen minutes to compose her, when he went back to the kitchen and found the dead body of the deceased lying in one corner of the same, perforated with buck shot. The witness at once saddled his mule and started off to summon help. He went first to the house of Mansur Graybill, about half a mile southwest from his, witness’s house. Hot finding Mansur at home, he went to defendant’s house, about three hundred yards ■distant from Mansur’s house, and, not finding defendant at home, he started on to the house of Guy Everhart, about half a mile beyond Graybill’s house. Hpon reaching a point within about four hundred yards of Everhart’s house, the witness met the defendant and Mansur Graybill, walking, and the latter’s ■children riding a mule, all going towards their respective homes from the direction of Everhart’s house. Witness stopped the said parties and told them that Isham Amos had just been killed ■at his, witness’s, house. Defendant said, in a questioning manner: “Isham Amos?” Witness replied: “Yes, Isham Amos.” Witness then asked the defendant to go back to Everhart’s house and either get Everhart to go after Justice of the Peace Butler, or borrow a mule from Everhart and go himself after the said Butler. Defendant agreed to do as witness requested, ■and went back towards Everhart’s house, but he did not come to witness’s house until he was brought there the next day under arrest. The witness and Mansur Graybill then went back to Graybill’s house, where the children were left, and thence they went to witness’s house.</p> <p>Early on the next morning the witness and others instituted a search of the premises and vicinity for traces of the assassin. They found the foot tracks of a man at a corner of the witness’s smoke house, twenty-five or thirty steps ■distant from the gallery, at which said point the grass and weeds were trampled down. They also found fragments of gun wadding on the ground, at intervals, between the said comer of the smoke house and the southeast corner of the gallery. The tracks mentioned led off from the said corner of the smoke house in a north direction, alongside of a fence, until they reached a road about one hundred yards distant, whence, crossing the road, the tracks went in a westerly direction until they reached the woods, into which they could not be followed nor traced. As the witness could now best estimate time, not more than thirty minutes after the shooting had elapsed when he started off after help, and he was not gone longer than twenty minutes when he met the defendant and Mansur Graybill near Everhart’s house. The witness was the only male person living at his house, but Willis King, who was helping witness pull fodder, was at the house, and had been, to the knowledge of defendant, for several days before the killing. Deceased was shot in the arm two or three months prior to his death, but witness did not know by whom nor under what circumstances.</p> <p>John Jackson testified, for the State, that, on the twenty-sixth day of July, 1888, on the night of which day the killing occurred, Mansur Graybill, defendant and witness were pulling fodder for Guy Everhart in Everhart’s corn field. Having pulled to a certain point in the field, Everhart and Mansur remarked that the fodder at that point was too green to be pulled, and they left witness and defendant and went to another point in the field to examine the condition of the fodder there. During the absence of Mansur and Everhart, the witness and defendant got into a conversation about marriage, in the course of which the witness remarked that if he ever did get married he would be careful not to marry such a woman as defendant’s wife, who, on the day previous, he saw copulating with Willis King. Defendant then went off to join Mansur Graybill and Everhart. After some talk with them he called the witness, and when the witness reached them he said to witness: T want you to tell these men what you have just told me.” Witness repeated, in the presence of the said parties, that he saw Willis King and the defendant’s wife copulating on the day before. Defendant then asked witness if he could point out the place where the act of copulation took place. Replying that he could, the witness piloted him to a point in the grass near a small branch in that part of the field where the defendant’s wife worked on the day before, and he indicated a certain place, which the defendant examined closely, and then remarked that he was satisfied of the truth of the witness’s statement, as the impress of his wife’s heel on the ground was plain. He then left witness and went off toward the house in which his wife lived. The witness went back and pulled fodder until dark» when he and the remaining parties went to Everhart’s house» arriving after dark. Supper was not yet ready, and had to be cooked. After the supper was cooked and placed upon the table, witness, Everhart and Graybill sat down and ate, and, just as they had finished and were leaving the table, the defendant stepped into the house. Everhart insisted that defendant should eat some supper. He finally went into the dining room, but remained only a short time. After finishing supper and leaving the table, Graybill told his children to get ready to go home with him. Defendant, who was then at the supper table, called to Graybill to wait a few minutes and he would go with him. Graybill told the defendant to make haste, and defendant soon came out, and he and Graybill, walking, and Graybill’s children riding the mule, started off toward their respective homes, which were in the same direction from Everhart’s house. They had been gone a very short time when the defendant came back and reported the killing of deceased at Cooper’s house. He then asked Everhart either to go after Justice Butler or lend him a mule to go. Everhart replied that he could do neither, as his mules had been worked hard and were very tired. Defendant then asked witness to go with him. Witness went with him as far as the house in which his, defendant’s, wife lived, when defendant stopped, and witness went on to Gray-bill’s house, and thence to Cooper’s house. Defendant did not go to Cooper’s on that night, nor on the next day until he was taken there in arrest.</p> <p>Harvey Lynch testified, for the State, that he lived at the house of Willis Jackson, about a mile and a half distant from the house of Caleb Cooper. Witness left home on the morning of July 26, 1888, and did not get back until after night, when he was told of the killing, and went to Cooper’s house, and remained with the body, which he helped to wash and dress on the next day. Deceased was struck in three or four places with buckshot, one of which the witness extracted from a place under the skin where it had lodged after passing entirely through the body, The witness was one of the parties who, early on the next morning, examined the ground for. traces of the assassin. The tracks of a man were found at the corner of Cooper’s smoke house, at which point the grass and weeds were mashed down, apparently by some person who had stood or squatted there. Some of the weeds appeared to have been cut with a knife. From the said corner of the smoke house the tracks,.following a fence, led off In a north direction until they reached a road about one hundred yards distant from the house. Crossing’ the road at that point, they went west until • they struck the woods, beyond which point they could not be traced. ' About sun rise on the next morning, the defendant’s dog came to Cooper’s house from the direction of the defendant’s house, which was southwest from Cooper’s house. That dog came up the road with his muzzle near the ground, as if following a trail, and followed that course until it had very nearly reached the point at the corner of the smoke house near which the tracks were found. He was hallooed at and frightened off by Mr. Fonzo Butler, just before he reached the said corner, and went back over the same route he had just come, towards the defendant’s home. The witness knew that dog well, and knew him to be good at trailing game. He would also trail people. The dog was in the habit of trailing up and finding the defendant whenever the defendant would get away from him. Witness had often seen him tracking defendant. In trailing an object, that dog traveled with his head very close to the ground. The said dog was very much afraid of white people, and for that reason, as the witness supposed, it fled when Mr. Butler hallooed at him. The witness and the defendant were together at the house of Mr. Henry Butler, the justice of the peace, a week or two prior to the killing, on which occasion the defendant, in the hearing of the witness, asked Mr. Butler several questions about what a man could lawfully do to men who came about his house after his wife. Butler told him that he had the right to drive such fellows off, and could use force enough to do so, but that he had better not molest anybody unless they came to his house and interfered with him or his wife. Witness saw the defendant’s double barreled shot gun on the morning after the killing. The right hand barrel, as shown by indications at the muzzle and tube, had been recently discharged. The left hand tube was broken. The defendant’s dog was very much attached to him, and would track and find defendant as often as he missed him. He was on the track of the man who stood at Cooper’s smoke house corner, when he was frightened off by Mr. Butler. Witness knew that the deceased was shot some time before he was killed, but knew who shot him only by hearsay.</p> <p>Mansur Graybill was the next witness for the State. He testified that he lived in a house about half a mile southwest from Cooper’s house, and about the same distance north from Ever-hart’s house. The witness and defendant and one John Jackson pulled fodder together in Everhart’s corn field on the day of the killing. About an hour before sun set on that evening, the defendant came to where witness and Everhart were at work, in the said field, and said to them: “ Men, there has been something going wrong I want you all to know.” He then called John Jackson to where the parties were, and told him to repeat his recent statement made to him, defendant, whereupon Jackson said that on the day previous he saw Willis King and the defendant’s wife copulating with each other. Defendant thereupon asked Jackson to point out to him the place where the act of copulation took place, and defendant and Jackson went off together towards a branch in the field. The witness, Guy Ever-hart and John Jackson quit pulling fodder about dark, and went to Everhart’s house to get supper. They sat down to the supper table about an hour or two after night, and were just leaving the table after eating when the defendant arrived. Everhart invited the defendant to take supper, and,-just as defendant went into the dining room, the witness called to his children that he was ready to go home. Defendant thereupon called to witness to wait a minute and he would go with him. Witness told him to hurry, and he reappeared in a very short time, and together with witness and his children started home. When they reached a point three or four hundred yards distant from Everhart’s house, they met Caleb Cooper, who told them that Isham Amos had been recently killed at his house. Defendant, in a surprised and questioning manner, asked: “Isham Amos?” Cooper replied: “Yes, Isham Amos,” and asked that either witness or defendant go after Justice Butler. After some talk defendant agreed to go back to Everhart’s and get him to go, or borrow one of Everhart’s mules and go himself. He then turned and went back towards Everhart’s house, and witness did not see him again until after his arrest on the next day. Defendant had a double barreled shot gun which he kept at the house of the witness. He was in the habit of going to the said house at will and getting the said gun. He used the gun to kill squirrels on the Monday of the week preceding the homicide, but witness could not say whether on that occasion he used one or both barrels. Witness examined the said gun on the morning after the homicide, and found that the right hand barrel had been recently discharged. The tube on the left hand barrel was broken, and witness did not know whether or not that barrel could be fired. About a week before the killing of Amos, the defendant asked witness for some buck shot, and witness told him where he could find them. He could have got the buck shot, but witness could not say whether he did or not* The defendant’s gun was at witness’s house when the witness left home on the morning of the fatal day. He did not know whether or not it was there when he got back on that night* Witness left his wife at home in the morning, and found her at home when he got back. He knew nothing about her remaining at the house all day except what she told him.</p> <p>Guy Everhart, the next witness for the State, testified as did the witness Graybill, up to the point at which the defendant and Jackson left his house, on the fatal night, to go after Justice of the Peace Butler, except that he was not with Graybill and defendant when they met Cooper and were informed by him of the killing of deceased.</p> <p>George Davenport, the brother of Frances Graybill (wife of the witness Mansur Graybill), testified, for the State, that he and defendant went to Graybill’s house together about sun down on the fatal evening. When the witness started home, a few minutes later, his sister Frances got her milk bucket and went with bim as far as the cow pen, about two hundred yards from the house. When witness and Frances left the house, defendant was standing at Graybill’s gate. When they reached the cow pen witness looked back towards the house, but defendant had left the gate, and was nowhere in sight.</p> <p>Ho evidence appears to have been introduced by the defendant.</p>

<p>1. Burglars’—Evidence—Fact Case.—See the statement of the case for evidence held sufficient to establish a burglarious entry at night of the house by the accused, and therefore to support the conviction for burglary.</p> <p>2. Same—Charge of the Court.—A special charge of the court was requested by the accused to the effect that if the jury found that there were large openings in said building, so situated as to admit of an easy entrance without force, and that the same could have been naturally' used for said purpose and had been used for said purpose, and that at the time said property was taken an entry was made through either of said openings or unfinished ends, then the defendant is not guilty. Held, that the trial court did not err in refusing the said special charge, because, as the openings referred to were unusual places of entry, an entrance through either of them would be a burglarious entrance.</p> <p>3. Same—Variance.—Indictment alleged the ownership of the house to be in E. W. Bullard. The ownership of the house was proved as alleged, and it was further proved that the said E. W. Bullard permitted his son to store corn in the said house. Held that such proof does not amount to a variance between the allegation and the proof.</p>

Tried below before the Hon. J. C. Randolph. The conviction in this case was for the theft of a horse alleged to be the property of Pink Coats, in Coleman county, Texas, on the tenth day of September, 1887. The penalty assessed by the verdict was a term of five years in the penitentiary. W. P. Coats was the first witness for the State. He testified that his name was W. P. Coats, but he was generally called and commonly known as “Pink” Coats.

Tried below before the Hon. J. C. Russell. The conviction in this case was for the theft of a mule, the-property of Juan Garza, in Duval oounty, Texas, on the twenty-fifth day of March, 1887. A term of five years in the penitentiary was the penalty assessed by the verdict. Juan Garza was the first witness for the State. He testified that he lived at the Los Indios ranch in Duval county, Texas. He had never seen the defendant until his arraignment upon, this trial.

Tried below before the Hon. J. C. Randolph. The appellant in this case, who was a deputy sheriff and deputy collector of Coleman county, was convicted for the misapplication of one hundred and fifty-five dollars and thirty-nine cents, alleged to have come into his possession by virtue of said office. The penalty assessed by the verdict was a term of two years in the penitentiary.

Tried below before the Hon. B. B. Beaird, County Judge. The appellant in this case was convicted for permitting a game of cards to be played upon his premises, which were charged to be appurtenant to a drinking saloon. The penalty imposed upon the appellant was a fine of twenty-five dollars. Alexander White was the first witness for the State.

Tried below before the Hon. F. J. McCord. This conviction was for felony theft, and the penalty assessed by the verdict was a term of two years in the penitentiary. Orville Murphy was the first witness for the State. He testified that he was the son of Arch Murphy, deceased, who had been dead about two years and a half, and was the brother of Arch Murphy, Jr., deceased, who had been dead about five months.

Tried below before the Hon. John C. Townes. The appellant was convicted of the theft of a horse under an indictment, the charging part of which reads as follows: * on or about March 20, 1886, in said county and State, did then and there unlawfully and fraudulently take, steal and' carry away a certain horse, the same being the corporal personal property of James E. Robertson, but the same being then and there an estray, and having, theretofore, been taken up and advertised…

Tried below before the Hon. M. J. Whitman, County Judge. This conviction was for playing cards in a public place, and the penalty assessed was a fine of ten dollars. W. T. Guinn was the first witness for the State.

<p>Appeal from the District Court of McLennan. Tried below Before the Hon. Eugene Williams.</p> <p>The indictment in this case was filed in the district court of McLennan county, on the twenty-second day of October, 1887. It charged the appellant with the offense of perjury, alleging that he committed the said offense upon the trial in the district court of the case of Nettie Hough Simmons v. Newton C. Simmons, for divorce, on the nineteenth day of October, 1887. The perjury assigned in the indictment was that, on the trial of the said divorce suit, the appellant, under oath, falsely testified that, on the ninth day of September, 1887, in the peach orchard ■on the premises of the said Nettie Hough Simmons, at the instance and request of the said Nettie Hough Simmons, he, the appellant, had carnal knowledge of her, the said Nettie Hough Simmons. The trial, which was had on the eleventh and twelfth days of May, 1888, resulted in the conviction of the appellant, and his punishment was assessed at a term of five years in the penitentiary.</p> <p>Z. T. Beasley was the first witness for the State. He testified that he was the clerk of the district court of McLennan county, and officiated as such clerk at the October term, 1887, when the ■divorce suit of Nettie Hough Simmons v. Newton 0. Simmons was tried. Witness administered the oath to the file of witnesses first presented by the parties to that suit, but not to other witnesses who were sworn from time to time during the progress of the trial. The defendant was a witness and testified upon the trial of the said cause, but witness was unable to say that he administered the oath to him, unless he was one of the first file of witnesses presented to be sworn. The witness did not know the defendant at that time, and was unable to say whether or not he was one of the file of witnesses to whom he administered the oath. At this point the State, through this witness, introduced in evidence the original and supplemental petitions ■of Nettie Hough Simmons, and the original and supplemental answers and cross petition of Newton C. Simmons in the cause of Nettie Hough Simmons v. Newton C. Simmons, for divorce, and also the decree of the court reciting the verdict of the jury in favor of the plaintiff, and awarding her a divorce upon her petition.</p> <p>Mrs. Nettie Hough, late Nettie Hough Simmons, was the next witness for the State. She testified that she knew the defendant, who was the son of her late husband, Newton C. Simmons. The divorce suit of Simmons v. Simmons, wherein the witness was plaintiff and Newton C. Simmons was defendant, was tried in the district court of McLennan county, in October, 1887. The defendant testified, on the trial of that case, as a witness for his father, in the cross bill against the witness. The witness was present at that trial, and saw and heard the defendant take the oath as a witness as aforesaid, and heard all of his testimony ■on the trial of that case. On the said trial the defendant testified that he reached the place of the witness near Bruceville, McLennan county, Texas, about thirty minutes before sun down on the evening of September 9, 1887; that he found no person other than the witness at the house at that time; that, after remaining in the room with witness until between sun down and dark, the witness proposed that he and she should go into the peach orchard and get some peaches; that he accepted the invitation and went with the witness into the said orchard; that, a few minutes after they reached the said orchard, the witness requested him to act as a husband to her, and laid down on' the ground, when he got on top of her and had carnal knowledge of her; that he pressed his face to witness’s face, and his belly to the witness’s belly, and “did it” to witness, and that he, the defendant, and the witness continued thus in carnal embrace until Tom Smith came up and discovered them in the copulative act—all of which statements were absolutely and utterly false, and so known to be false by the defendant when he made the same as testimony on the said trial. The defendant was not on the witness’s premises on the said September 9, 1887, and had not been for at least ten days preceding the said September 9. On the tenth of the said September, the witness and her then husband (the father of defendant) separated, and witness went to Waco on the eleventh day of the same month. Defendant was not at the witness’s house nor on her place at any time on the said September 9. Miss Annie Abernathy visited the witness on that day, reaching her house about nine o’clock in the-morning, and remaining until after dinner. Mrs. Whaley and Mrs. Leavett spent that day with the witness on her said place, arriving quite early in the morning and remaining until nearly sun down. Mrs. Whaley and Mrs. Leavett, leaving the witness’s house, went direct to the Bruceville road by the way of the Abernathy house, which was on the witness’s place, and took the direct road to Bruceville. Just as those two ladies left the witness’s house, the witness saw N. C. Simmons, her then husband, coming towards the house through Doctor Bruce’s field. He reached the house between five and ten minutes after Mrs. Whaley and Mrs. Leavett left. It was then about, or perhaps not quite, sun set. In his testimony on the trial of the divorce case, the defendant testified that he came to witness’s house direct from Bruceville, reaching the house about thirty minutes before sun down, and that, in going to the house, he traveled the main Bruceville road, and that he met no person en route. If he had in fact so come to the witness’s place he would have necessarily passed the Abernathy house. As a matter of fact and truth, the defendant was not on the witness’s place on either the day or night of the said September 9, and had not been on that place for at least ten days prior to the said date. The witness did not know whether or not' the defendant was absent from McLennan county before the trial of the divorce case. She did not see him subsequent to the trial for divorce until after his arrest upon this charge. No person other than the witness was on the witness’s place after the departure of Mrs. Whaley and Mrs. Leavett, until the arrival of N. C. Simmons a few minutes later. The witness and N. C. Simmons lived together as man and wife about four months. The witness’s first husband, Mr. Hough, died nearly two years before the marriage of the witness and N. C. Simmons. Witness and Mr. Hough were married in 1879, and they lived together as man and wife until 1885. The witness testified on the trial of the divorce suit instituted by her against N. C. Simmons, and stated all that she knew about her property. The witness was once arrested. She was arrested in Marlin, and convicted for an aggravated assault upon a woman, and was confined in jail twenty-one days, being too poor to discharge the fine assessed against her.</p> <p>■R H. Kingsbury was the next witness for the State. He testified that he was an attorney at law. He was present in the court room on the trial of the divorce suit of Simmons v. Simmons, in October, 1887, and heard the testimony delivered by the defendant on that trial as a witness for the respondent. The oath was administered to the defendant by the clerk of the district court, whereupon the defendant testified that he went to the residence of his father and Mrs. Hough (then his father’s wife] on the evening of September 9, 1887, and that he and Mrs. Hough had carnal intercourse with each other about dark on that day, in the peach orchard. The witness did not recollect what, if anything, the defendant said in his said testimony about leaving Bruceville to go to Mrs. Hough’s residence. To the best of the witness’s recollection, the defendant used the expression: “She and I went through the performance,” and that it was about dark when they did so.</p> <p>J. P. Wood testified, for the State, that he was a member of the jury that tried the divorce suit of Simmons v. Simmons in the district court of McLennan county, in October, 1887. The defendant testified as a witness for the respondent on that trial, having first taken the oath which was administered to him by the clerk. On that trial the defendant testified that he went with Mrs. Hough from her house to the peach orchard on her premises near Bruceville, and that when they reached the peach orchard Mrs. Hough told him that she wanted carnal intercourse with him, and that he told her in reply that he . would do the best he could, and that thereupon he and she had carnal intercourse with each other in the said peach orchard. He said that he went to Mrs. Hough’s pláce that evening by the main Bruceville road, passing the Abernathy house, and that the act of copulation took place about sun down.</p> <p>Charles Lewis testified, for the State, that he was a member of the jury which tried the Simmons v. Simmons divorce suit in October, 1887. Defendant testified as a witness for the respondent on that trial, having first been sworn. As well as the witness could remember, the oath was administered to the defendant by Mr. Beasley, the district clerk. Witness might be mistaken as to whether the oath was administered by Beasley or his deputy, but at all events the defendant was sworn. He testified, in substance, that he had carnal intercourse with Mrs. Hough in the peach orchard on her premises about sun down on the evening of September 9, 1887.</p> <p>Mrs. Abernathy was the next witness for the State. She testified that she lived in a house on the premises of Mrs. Nettie Hough, near Bruceville, in McLennan county, Texas, and lived in the said house on the ninth day of September, 1887. The witness’s daughter Annie visited Mrs. Hough’s on the said September 9, going to the house early in the morning, and returning home about mid-afternoon. Just before sundown on that evening, the witness saw Mrs. Whaley and Mrs. Leavett leave Mrs. Hough’s house and go from there towards Bruceville, traveling the regular main road from Mrs. Hough’s to Bruceville. To reach the said Bruceville road, the said ladies-had to and did pass the witness’s house at a distance of about two hundred yards. ■ Just after Mrs. Whaley and Mrs. Leavett passed witness’s house, which was about sundown, the witness-saw a wagon going through Dr. Bruce’s pasture towards Mrs. Hough’s house. She could not recognize the wagon, but it was drawn by the same horses which, attached to Mrs. Hough’s wagon, N. C. Simmons drove off in the morning, and the witness therefore presumed that that wagon was Mrs. Hough’swagon, and that the person driving it was N. C. Simmons. No man went to Mrs. Hough’s house, on the said September 9, from the direction of Bruceville. Ho person could have gone to Mrs. Hough’s from Bruceville over the Bruceville road, without passing witness’s house, and being seen by the witness. The witness was familiar with Mrs. Hough’s reputation for chastity in the community of her residence. It was and always had been good.</p> <p>Mrs. Whaley testified, for the State, that she lived near Bruceville, in McLennan county, and lived there during the year 1887. On the morning of September 9, 1887, the witness and Mrs. Leavett went to the house of Mrs. Hough, and spent the day. They left Mrs. Hough’s house after sundown, and re. turned to their houses over the direct route from Mrs. Hough’s to Bruceville, passing the house of Mrs. Abernathy en route. The Bruceville and Mooresville road, which is the road referred to by previous witnesses as the main Bruceville road, passed Mrs. Hough’s field at a distance of about one hundred yards. A cross road led from it to a gate in Mrs. Hough’s field, and thence to Mrs. Hough’s house via the Abernathy house, which it passes at a distance of about two hundred yards. The route indicated was the direct route from Mrs. Hough’s to Bruceville, and was the one traveled by Mrs. Leavett and the witness on the evening in question. The Bruceville and Mooresville road, from Mrs. Hough’s field to a point near Bruceville, traversed a lane. The witness and Mrs. Leavett did not meet a single person, male or female, between Mrs. Hough’s place and Bruce-ville on the said evening. The reputation of Mrs. Hough for chastity was good.</p> <p>Doctor Bruce testified, for the State, that he was present and heard the testimony delivered upon the trial of the Simmons v„ Simmons divorce case, in October, 1887. The defendant was sworn as a witness for the respondent in that case, the oath being administered by District Clerk Beasley. On that trial the defendant testified that he went to the house of Mrs. Hough, near sundown on the evening of September 9, 1887, and, at the request of Mrs. Hough, went with her from the house to the peach orchard on the said premises, where he had sexual connection with her. A person could go from Bruceville to Mrs. Hough’s residence without passing by Mrs. Abernathy’s house in the field, by traveling the Bruceville and Mooresville road to a point beyond Mrs. Hough’s field, and then going to the said house across an open prairie. That route was three-quarters of a mile farther than the route by the main road, which passed Mrs. Abernathy’s house, and the defendant testified positively that, in going to Mrs. Hough’s house, he traveled the said main road. The witness saw the defendant frequently before the trial of the divorce case, but did not know where he was after-wards. Mrs. Hough’s reputation for virtue and chastity, in the community of her residence, was good.</p> <p>Mrs. Leavett testified, for the State, that she lived in McLennan county, Texas, between the villages of Eddy and Bruce-ville. In company with Mrs. Whaley, she spent the day on September 9, 1887, with Mrs. Hough, at her residence near Bruceville, Texas, arriving at the said house about nine o’clock in the morning. They left Mrs. Hough’s house about sundown, and returned to Bruceville over the main road, which passed by the Abernathy house. That road traversed a lane until it reached a point near Bruceville. They met no person on their way from Mrs. Hough’s to Bruceville. Mrs. Hough’s reputation for virtue and chastity was good, and had never been assailed prior to the. trial of the divorce suit in October, 1887.</p> <p>M. C. H. Park was the next witness for the State. He testified that he was an attorney at law, and attended the October term, 1887, of the District Court of McLennan County, and was present, and heard the testimony adduced on the trial of the Simmons v. Simmons divorce case. The defendant was sworn and testified as a witness for the respondent in that case. He testified, in substance, that he went to the house of Mrs. Plough, on the evening of September 9, 1887, going to said house over the main Bruceville road; that he arrived at that house a little before sundown, and that, after remaining in the house for a short time with Mrs. Hough, she invited him to go with her to the peach orchard, and after they got to the peach orchard she asked him to act the part of a man to her, and that he accordingly had carnal connection with her, finishing the act of copulation about sun down.</p> <p>Deputy Sheriff Dan Ford testified, for the State, that he summoned the witnesses in the Simmons v. Simmons divorce case, but had no subpoena for the defendant as a witness in that case. Witness was unable to say whether or not the defendant was in McLennan county prior to the trial of the divorce suit. A warrant for the arrest of the defendant was delivered to the witness a day or two after the trial of the said divorce suit, but witness failed to find defendant in McLennan county.</p> <p>Will Lyons testified, for the State, that he had known the defendant since December 2, 1887. Defendant was arrested for this offense at witness’s house in Hunt county. Witness knew and introduced the defendant by the name of Winchey, which defendant said was a part of his name. Witness knew that defendant was known by the name of Simmons in his, witness’s, neighborhood, and he heard the defendant called Simmons after his arrest. In explanation of his assumed name, the defendant told witness that he was called Winchey at home.</p> <p>W. T. Harris, for the State, testified that he was sheriff of McLennan county, and held that office in October, 1887. A capias for the arrest of the defendant for this offense was placed in the hands of the witness soon after the trial of the Simmons t. Simmons divorce case, but was not executed by witness because he could not find the defendant in McLennan county. Upon information which subsequently came to the witness, he sent his deputy, Percy McGee, to Hunt county, and got the defendant. Immediately after the close of the Simmons v. Simmons divorce case, the defendant came to witness and told witness that he had heard that witness had some person watching him, and that, if it was so, witness must have him watched either by an officer or a gentleman, or he would not submit to it. Witness assured the defendant that he, witness, had nobody watching him, which, as a matter of fact, was true. Another person, however, did have a man watching defendant.</p> <p>Porrest Thompson testified, for the State, that he was In the court house when the Simmons v. Simmons divorce case was tried, and saw District Clerk Beasley when he administered, and the defendant when he took, the oath as a witness for the respondent in that case. Witness was familiar with the topography of the country contiguous to Bruceville and to the residence of Mrs. Nettie Hough. The most direct and shortest route from Bruceville to Mrs. Hough’s residence was over the main Bruceville and Mooresville road to a point near the Threadgill house, where a cross road led into Mrs Hough’s field, and through it to her residence via the Abernathy house. The cross road mentioned is used only in going from the Bruce-ville road to ihe houses of Mrs. Abernathy and Mrs. Hough. There was a spring on the Bruceville and Mooresville road, about a quarter of a mile beyond the Threadgill house. A person could go from Bruceville to Mrs. Hough’s house by going on to this spring, instead of turning off at the cross road, and then going across an open prairie to the back lot near Mrs. Hough’s house; but that route was at least three-quarters of a mile further than the main route described. Stock water was very scarce in the vicinity of Bruceviile in September, 1887, and there was none to be had between Bruceviile and the Threadgill or Hough houses. Witness saw the defendant on the day that he testified in the Simmons v. Simmons divorce case, but did not see him during the several days preceding that day, nor did he see him again until after his arrest.</p> <p>Deputy Sheriff Percy McGee testified, for the State, that late in 1887 the sheriff of McLennan county sent him to Hunt county to get the defendant. ■ He found the defendant in jail in Green-ville, and brought him to Waco.</p> <p>The State closed.</p> <p>Joseph Lockard was the first witness for the defense. He testified that, late one evening, early in September, 1887, he met the defendant at the spring on the Bruceviile and Mooresville road about a quarter of a mile distant from the house of Mrs. Nettie Hough. The defendant, who was on horseback, told the witness that he was then going to Mrs. Hough’s residence. The sun was then about down. In going from the said spring to Mrs. Hough’s house, the defendant would cross a small open prairie and reach the premises at the back lot, near the house. The witness could not fix the date of that meeting with the defendant at the spring, but it was a short time before he heard of the trouble between Mrs. Hough and her then husband, N. C. Simmons, and it was the only time during the said September that witness met defendant at the said spring.</p> <p>George Lowry testified, for the defense, that he, witness, and D. P. Simmons, the brother of the defendant, were partners in the grocery business, which they carried on in the town of Bruceviile, McLennan county. Defendant spent the night of September 8, 1887, with the witness in Bruceviile. He was with the witness in Bruceviile all of the next day until late in the afternoon, when he left Bruceviile, going towards Mrs. Hough’s house, where, as he told witness, he was going to spend the night. The witness was positive about the date, because defendant bought some lemons and ice from him on the day before he left Bruceviile to go to Mrs. Hough’s house, and the charge on the books shows that transaction to have occurred on September 8, 1887. It was nearly sun down when defendant left Bruceviile to go to Mrs. Hough’s house on the evening of September 9. The spring mentioned by previous witnesses was on the Bruceville and Mooresville road, about a quarter of a mile beyond the corner of the Bruce place, at which corner a cross road leaves the said road and leads into Mrs. Hough’s field, and through, via the Abernathy house to Mrs. Hough’s house. To' go to Mrs. Hough’s house from Bruceville via the said spring,, one would go from the spring across a small open prairie and reach the Hough premises at the gate of the back lot, that route' being a half or three-quarters of a mile further than by the Abernathy house. Stock water was scarce in September, 1887, and there was none to be had on the direct or short route via the Abernathy house, between Bruceville and Mrs. Hough’s house. Defendant left Bruceville to go to Mrs. Hough’s on horseback. The defendant was in Dallas county, working fora man named Carter, for some time before the trial of the Simmons v. Simmons divorce suit, and witness went to Dallas county to get him to attend the trial of the divorce suit as a witness for the respondent.</p> <p>Mr. Orr testified, for the defense, that he was the proprietor of a cotton gin in the town of Eddy, in McLennan county, which was about three miles and a half distant from Mrs.. Hough’s residence. On the eighth day of September, 1887, N. C. Simmons, the father of the defendant, and then the husband, of Nettie Hough, brought a bale of seed cotton to witness’s gin to be ginned. He remained in Eddy all of said day, and started, home between sun down and dark, having a bale of cotton, and the seed therefrom in his wagon. Witness was not absolutely certain whether it was on September 8, or September 9, when N. C. Simmons came to his gin as stated, but knew that it was one of those days, and thought it was the eighth. He could not tell the hour at which N. C. Simmons left the gin to go back to the Hough place where he then lived, but knew that it was after sundown.</p> <p>Bob Whaley testified, for the defense, that he lived in the-town of Eddy in September, 1887, and then ran a saloon. At about sunset, on the evening of either the eighth or ninth of September, 1887, N. C. Simmons, the father of the defendant,, came into witness’s saloon and bought two bottles of beer, and shortly afterwards left in his wagon towards the house of Mrs. Nettie Hough, where he then lived. N. C. Simmons at that time had a bale of cotton in his wagon.</p> <p>N. C. Simmons testified, for the defense, that he was the-father of the defendant. On the morning of the ninth day of ■September, 1887, the witness left his home near Bruceville,— now known as the Mrs. Nettie Hough residence,—in a two horse wagon, and went to his son’s place, where he got a bale of seed ■cotton. Thence he went to Orr’s gin in Eddy and had the cotton ginned. He bought two bottles of beer at Bob Whaley’s saloon in Eddy at about sundown, and about dark, with his bale ■of cotton, and the seed therefrom, in his wagon, he left Eddy and drove home over the private way through Doctor Bruce’s pasture. He reached home about eight o’clock on that night, and found the defendant at the house. Defendant spent that night (September 9, 1887) at witness’s (now Mrs. Hough’s) residence, and left on the next morning. While at his house on the said night, the defendant told the witness that he had been to Lorena on that day, and that, in coming from Lorena to the said house, he met Joe Lockard at the spring on the Bruceville and Mooresville road. The witness knew Tom Smith, who testified on the trial of the Simmons v. Simmons divorce case. The said Tom Smith was now in the penitentiary under conviction for perjury ■committed on that trial. The witness was now under indictment for subornation of perjury in connection with the said testimony of the said Smith. The witness never procured nor in any way attempted to induce Tom Smith to testify falsely on the said trial, or on any other trial, nor was he now aware that Smith did testify falsely on that trial.</p> <p>The defense closed and the State recalled Forrest Thompson ¡and Hand Threadgill, who testified that they had known the defendant nearly all of his life, and had never heard him called by the name of Winchey.</p> <p>The defendant’s application for continuance which, in connection with the motion for new trial, is the subject matter of the rulings of this court, reads as follows:</p> <p>“And now comes R. L. Simmons, the defendant in the above numbered and entitled cause, and on his oath says that he can not safely go to trial at this term of the court for want of the •testimony of Bobert Carter, who resides in Dallas county, 'Texas, Ernest Cox, who resides in Webb county, Texas, and Finley Helson, who resides in Parker county, Texas. Affiant :says that the above mentioned witnesses are not now in court, but are absent. Affiant says that the following diligence has been used by affiant to secure the attendance of said witnesses .at this term of the court and now on this day: On April 7, 1888, affiant legally applied for and obtained from the District Clerk of McLennan county an attachment for the said Robert Carter, addressed to the sheriff or any constable of Dallas county, Texas; an attachment for the said Ernest Cox, addressed to the sheriff or any constable of Webb county, Texas, and an attachment for the said Finley Nelson, addressed to the sheriff' or any constable of Parker county, Texas. Affiant says that said attachments so obtained as aforesaid on the seventh day of April, 1888, were placed in letter envelopes, and addressed as follows: The one for Robert Carter, to the sheriff of Dallas county, at Dallas, Texas; the one for Ernest Cox, to the sheriff of Webb county, at Laredo, Texas, and the one for Finley Nelson, to the sheriff of Parker county, at Weatherford, Texas. Affiant says that on each and all of the envelopes addressed as aforesaid, the proper and necessary postage stamps were placed, and the said attachments so enclosed and directed were, on the said seventh day of April, 1888, deposited in the United States mail, at the postoffice in Waco, Texas. And affiant says that each and all of said attachments were made returnable on this tenth day of May, 1888; and that the attachment for the said Ernest Cox was returned unexecuted, the said Ernest Cox not being found in Webb county, Texas, and said attachment is now among the papers in this case; that the attachment for the-said Finley Nelson was soon returned to the clerk of this court, and is now among the papers in this cause, but there is no return upon the same as to why the same was not executed or whether the same was executed, and affiant has no knowledge-of when said attachment was placed among the papers in this cause, or why there is no return upon the same, or why said attachment was not executed. Affiant says that the said attachment against the said Robert Carter is not now amongst-the papers in this cause, and affiant has no knowledge of why said last mentioned attachment has not been returned, or as to why the said Robert Carter is not now present in court.</p> <p>“Affiant says that the evidence of the said witnesses is material to the defense in this cause, and that he expects to prove the following facts: By the witness Robert Carter he expects to prove that when he, affiant, came from Dallas county to Mc-Lennan county, Texas, to testify as a witness in the cause in which the perjury is herein charged to have been committed, that affiant was then in the employ of the said witness; that when affiant so left Dallas county, he, affiant, left his horse and •saddle in the charge of the said witness; that, when affiant had testified in the cause in which he is charged to have committed perjury, he, affiant, returned to the house of the said witness, and continued for some time thereafter in the employ of said witness, and that affiant continued so employed until the said witness had no further work at which he wished to employ the affiant. Affiant says that the testimony of the witness Robert "Carter is and becomes material from the fact that in this cause the State intends to show, and has witnesses subpoenaed to •show, that, after affiant had testified in the cause in which he is charged to have committed perjury, that then he, affiant, left the vic.'nity, and went to a distant part of the State, and endeavored by constant changes to avoid arrest and evade a trial on this charge.</p> <p>“Affiant expects to prove by the witness Ernest Cox that, on the evening of the day upon which this affiant testified that he had sexual connection with Mrs. Nettie Hough on the premises near her residence near Bruceville, Texas, and to the fact of which connection affiant testified in the District Court of Mc-Lennan county, Texas, and which said testimony is now and herein charged to be perjury, he, the said witness, met affiant in the vicinity of the said residence near night, and that affiant was going towards said residence, and told witness that he was going to said residence after some cattle and would spend the night there. Affiant says this testimony becomes material because the State will attempt to show, and has witnesses present to testify, that affiant did not come to that residence that evening, and that no man except the husband of Mrs. Nettie Hough was on the premises of Mrs. Nettie Hough on that evening; and the State will, by this testimony, attempt to show the falsity of the testimony of affiant and establish perjury.</p> <p>“Affiant expects to prove by the said witness Finley Nelson that he met N. C. Simmons, husband of Mrs. Nettie Hough, after dark on the evening of the day when affiant testified that said sexual connection did occur, which said testimony is now charged as perjury; and said witness will testify that the said N. C. Simmons was, at the time witness met him, on his way towards the residence of Mrs. Nettie Hough, and that the said N. C. Simmons was then coming from the direction of Eddy. Affiant says that the testimony of the said witness Finley Nelson is and becomes material from the fact that this affiant’s testimony, charged herein as perjury, to the effect that said sexual connection occurred about dark on said evening, and before the arrival of N. C. Simmons at said residence or premises, and the State will attempt to show, and have witnesses to testify, that at said time Mrs. Nettie Hough was with her husband and that he, her husband, the said N. C. Simmons, was then present at her residence; and the State will attempt so to show the falsity of the testimony of the affiant.</p> <p>“Affiant says that none of the said witnesses are absent by the consent or procurement of the affiant, and that this, his first application for continuance in this cause, is not made for ■delay. Affiant says that all the testimony of the aforementioned witnesses is true, and that there is no reasonable expectation that the attendance of the witnesses can be secured during the present term of the court by a postponement of the trial to some future day of the term.”</p>

Tried below before the Hon. S. R. Frost. The conviction in this case was for the theft of a colt, alleged in the indictment to be the property of some person to the grand jurors unknown. A term of five years in the penitentiary was the penalty assessed by the verdict. J. W. Gibbons was the first witness for the State.

Tried below before the Hon. B. B. Beaird, County Judge. The conviction in this case was for unlawfully acting as an insurance agent, and the penalty assessed against the appellant was a fine of eight hundred and seven dollars. The material allegations of the information are set out in the opinion.

Tried below before the Hon. F. J. McCord. The indictment in this case charged the accused with the murder of Louis McDougald, in Smith county, Texas, on the twenty-eighth day of July, 1888. The trial, which was had on the twenty-fourth day of September, 1888, resulted in the conviction of the appellant for manslaughter, -with a term of three years in the penitentiary assessed as penalty. Nathan Stevens was the first witness for the State.

Tried below before the Hon. H. C. Pleasants. The conviction in this case was for violation of article 163 of the Penal Code, which defines the offense of “ carrying arms within one half mile of a voting place, on a day of election during the time that the polls are open.” The penalty assessed against the appellant was a fine of one hundred dollars. This appeal was prosecuted to and was originally heard at the Austin term, 1888, of this court.

Tried below before the Hon. E. D. McClellan. The conviction was for the fraudulent disposition of mortgaged property, and the penalty assessed by the verdict was a term of two years in the penitentiary. The sufficiency of the indictment is the one question determined on this appeal.

Tried below before the Hon. George A. McCall. This conviction was for the theft of a yearling, and the penalty assessed against the appellant was a term of three years in the penitentiary. Mason Oldham, the one witness for the State, testified, in substance, that his certain roan yearling disappeared from its range about the time alleged in the indictment. Two months later he found that animal in the defendant’s pasture.

Tried below before the Hon. W. M. Johnson, County Judge. This conviction was had under article 813 of the Penal Code, which defines the offense of sending or delivering a written letter, threatening to accuse another of a criminal offense, for the purpose of extorting money, etc. The penalty imposed was a fine of one hundred dollars. The opinion discloses the case

<p>1. Theft—Possession of Recently Stolen Property—Charge of the Court.—With reference to the defendant’s explanation of his possession of recently stolen property, the trial court charged the jury as follows: “If you believe from the evidence that the animal in question had been recently stolen, and the defendant was found in possession of the same, and, when his right to the possession of said animal was first challenged, he gave a reasonable account thereof, consistent with his innocence, it devolves upon the State to show that it was untrue. If, however, when his possession was first challenged, he failed to reasonably and satisfactorily account for his possession thereof, you •will find him guilty as charged in the indictment.” Held, that the latter clause'of the said charge is erroneous, not only because it is upon the weight of evidence, but because it restricts the defensive proof to an opportune and reasonable explanation of the possession by the accused of the stolen property.</p> <p>2. Same—Fact Case.—See the statement of the case for evidence held insufficient to support a conviction for theft, inasmuch as the defendant’s explanation of his possession of the property—the only inculpatory proof against him—was not only reasonable and uncontradicted, but was strongly corroborated by other evidence on the trial.</p>

Tried below before N. A. Stedman, Esq., Special Judge. The conviction in this case was for the theft of a cow, the property of S. H. Mulkey, 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 Mc-Lennan. Tried below before the Hon. Eugene Williams A train on the Houston and Texas Central Railway was wrecked by obstructions placed upon the track by some person, on the seventh day of August, 1888, at a point in McLennan’ county, Texas, about three and a half miles distant from the town of Ross. The result of that wreck was the killing, by being crushed under the locomotive, of G. R. Moses, the engineer.

Tried below before the Hon. J. A. B. Putman. This conviction was in the second degree for the murder of J. M. Garrett, the penalty assessed against the appellant being a term of thirty years in the penitentiary. John Armstrong was the first witness for the State.

Tried below before the Hon. T. H. Conner. The conviction in this case was in the second degree for the murder of W. T. Gilstrap, the penalty assessed being a term of six years in the penitentiary. D. A. Campbell testified, for the State, that he lived now in the city of Fort Worth, but was in Abilene, Taylor county, at the time of the difficulty between the defendant and W. T. Gilstrap.

Tried below before the Hon. W. P. McLean. This conviction was in the second degree for the murder of Hiram Garrison, in Franklin county, Texas, on the twenty-first day of August, 1888. A term of fifteen years in the penitentiary was the penalty imposed by the verdict and judgment. C. A. Callaway was the first witness for the State. He testified that he lived in Franklin county, Texas, about half a mile north of the town of Hagansport.

<p>Appeal from the District Court of Denton. Tried below before the Hon. C. C. Potter.</p> <p>The conviction in this case was in the second degree for the murder of Sam Foster, in Denton county, Texas, on December 25, 1882. The penalty assessed against the appellant was a term of five years in the penitentiary.</p> <p>Albert Bell, the brother-in-law of the defendant, was the first witness for the State. He testified that he was present and witnessed the killing of the deceased by the defendant on Christmas day, 1882. The killing occurred on the premises of the defendant in Denton eounty, Texas, about sun down on the day stated. When he received the fatal shot, the deceased was standing in the defendant’s yard, about eight feet distant from the front door of the house. The defendant fired the fatal shot from the door, on the inside of the house, he being the only person in the house at the time. After receiving the shot the deceased ran around the defendant’s house, making a complete circle of it, and fell in the front yard, dying within a few moments. Witness, defendant and deceased were the only parties present when the fatal shot was fired.</p> <p>Cross examined, the witness stated that the deceased and his wife, who lived in Tarrant county, were visiting the defendant and his family at the time of the tragedy—defendant and deceased being relations. Defendant and his wife had but a day or two before returned from a visit to the deceased and his family. Deceased and defendant went to the town of Lewis-ville, in Denton county, on the morning of the homicide. They returned late in the evening with the witness’s father, who did not stop at defendant’s house, but went on to his own house, about two hundred yards distant. Witness was at the defendant’s house when the latter and the deceased returned from Lewisville. Defendant was very drunk when he got back—so drunk that he was unable to walk, and had to be assisted into the house by his wife, the witness’s sister. The deceased was also under the influence of whisky, but not so drunk as the defendant. They had a bottle of whisky, which the witness took away from them. Defendant and deceased spent the thirty minutes succeeding their return inside of the defendant’s house, at the end of which time, their wives having gone to the witness’s father’s house, witness and the deceased went outside of the hoúse to a point in the yard about twelve feet south of the door. While standing at that point, the witness’s back being towards the door, he heard the deceased say to the defendant: “Henry, put up that gun, you are too drunk to be handling a gun.” Deceased then started towards the door to take the gun away from the defendant, and about the time he made his second step the gun fired. The witness turned immediately, and saw the defendant standing inside the door on the right hand side. The gun was then falling from his hands, muzzle foremost. The defendant was standing still. The deceased ran around the east side of the house and back to the front yard, where he fell. About this time the defendant’s wife returned to the house, called the defendant into the yard, and explained to him what he had done. Defendant staggered from the house to where the deceased was lying on the ground, and began to weep, calling the deceased repeatedly by his given name. He was then too drunk to control his legs, and witness pushed him away to prevent him from falling or staggering over the deceased. The defendant was then led back into the house and placed in a chair, and after a time he was removed to a bed, in which he was asleep when, about ten-o’clock that night, the officers arrived and took him into custody. Defendant and deceased, to the positive knowledge of the witness, up to the very moment of the shooting were on the most friendly terms.</p> <p>Cynthia Foster, the wife of the deceased, testified, for the State, that she was at the house of Sam Bell, a couple of hundred yards distant from the defendant’s house, when the fatal shot was fired. She reached the scene of the homicide a few minutes later, and found her husband lying on the ground. Within a short time the. defendant came out of his house and poured water over the prostrate man. He did not then appear to be drunk—not near so drunk as when, a short time before, he and deceased got back from Lewisville. On the Monday morning previous to the homicide, while the defendant was at the deceased’s house near Fort Worth, and while the family was ■at breakfast, defendan t told deceased that he intended to kill .him. Witness thought that defendant looked very serious when he made the remark, but the deceased only laughed.</p> <p>Cross examined, the witness said that at the time of the killing she and her husband, by invitation of the defendant, were visiting the defendant’s house. During the several days preceding the homicide the association of the deceased and defendant was observed by the wituess, and she thought it was very friendly indeed. They appeared to be very friendly when they ■started to Lewisville on the morning of the fatal dav, and very friendly when they returned. Witness testified before the coroner’s jury, upon the inquest over the body of her husband, that she knew of no ill feeling between her husband and the defendant. She was not asked, and said nothing about, the defendant’s threat to kill the deceased, which, as stated above, he uttered -at the deceased’s house on the Monday .preceding the killing.</p> <p>The State closed.</p> <p>Jack Bell testified, for the defense, that he lived near the defendant’s house,- in Denton county. He traveled from Lewis-ville home with the defendant and the deceased on the evening •of the homicide, but did not stop at defendant’s house, where deceased and his wife were then visiting. Defendant and deceased appeared to be on the very friendliest terms during the ride home. Doth drank plentifully of whisky, and both were drunk. The defendant was much the drunker of the two, and had to be assisted from his horse and helped into his house on his arrival. Witness reached the scene of the shooting soon after it occurred, and found the deceased lying on the ground. Defendant came out to where the parties were, and was then so drunk that he had to be taken back into the house and put to bed. He was in the bed asleep when the officers arrived. Witness, woke him up and helped put him into the wagon in which he was taken to town, and knew that he was then very drunk.</p> <p>The motion for new trial raised the question discussed in the opinion.</p>

<p>Appeal from the District Court of Bastrop. Tried below before the Hon. L. W. Moore.</p> <p>The conviction in this case was for the theft of a gun, of the value of forty-five dollars, from H. Perkins, who was holding the same for W. W. Knowls, the owner of the same. The penalty assessed was a term of two years in the penitentiary.</p> <p>W. W. Knowls was the first witness for the State. He testified that he was the owner of the gun described in the indictment. On or about November 27, 1876, the said gun, without the knowledge or consent of the witness, was taken from the possession of H. Perkins, who then had the custody of the same. Witness did not see it again until about five weeks later, when, at the conclusion of the examining trial of the defendant, the gun was returned to him by the sheriff of Bastrop county.</p> <p>H. Perkins testified, for the State, substantially as did the witness Knowls, and in addition said that the defendant stayed all night at his house on the night of the theft, sleeping with two of the workmen on the place, in the room from which the gun was taken. He came to the house 'with a wagon and team, peddling buffalo meat. He left soon after breakfast on the next morning, the witness failing to miss the gun for a short time thereafter. Witness attended the examining trial of the defendant five or six weeks later and heard the testimony of Constable Smithson, now deceased, delivered on that trial. Smithson testified on that trial that he sent word to the defendant that he was desirous of purchasing such a gun as he had heard he, defendant, had for sale, and to bring it to Elgin for him to examine; that one Stanley brought the gun to him, Smithson, in Elgin, but he refused to buy it from Stanley upon the ground that the price was exhorbitant, but requested Stanley to leave the gun in a certain store, and to request defendant to come to town, as he thought he and defendant could make a trade. Accordingly Stanley left the gun in the store, and a few days later the defendant came to town, claimed the gun and offered to sell it to said Smithson, who then arrested the defendant. This witness repeated that Smithson testified that defendant claimed the gun before he, Smithson, arrested him, and on this point the witness Perkins was corroborated by the witness Miles, who gave the same general but a briefer statement of Smithson’s testimony.</p> <p>Justice of the Peace Hearn testified, for the State, that he held the examining trial of the defendant, and reduced all of the testimony to writing, which he turned over to C. B. Maynard, clerk of the district court, and had never seen since. Smithson testified on that trial, in substance, that somebody brought the gun to him, but he declined to have anything to do with it unless it was brought to him or claimed by the defendant, and that when the defendant claimed it, a few days later, he arrested him.</p> <p>C. B. Maynard, clerk of the district court of Bastrop county, testified, for the State, that he often saw in his office the papers which comprised the proceedings of the examining court in this case, but had not seen them since the burning of the court house and the said office in 1883, when a great many papers and records were burned.</p> <p>Sheriff Jenkins testified, for the State, that the defendant broke jail a short time after the examining trial, and remained at large about a year, when he surrendered. The gun described ill-the indictment was delivered to witness by Smithson, and witness delivered it to Knowls at the conclusion of the examining trial.</p> <p>The defense offered no testimony, but asked for a new trial upon the ground of newly discovered evidence which is sufficiently stated in the opinion of the court.</p>

Tried below before the Hon. J. C. Russell. The opinion states the nature of the case, and otherwise discloses the only question of importance involved in the appeal. The penalty assessed by the verdict was a term of two years in the penitentiary.

Tried below before the Hon. A. S. Walker. The conviction in this case was for an assault with intent to rape Mrs. Jane Cain, in Travis county, Texas, on the third day of April, 1885. The penalty assessed was a term of three years in the penitentiary.

Tried below before the Hon. R. M. Norman, County Judge. The information in this case purports to implead John M. Bennett, Rufus Keefer, Thomas Stewart, Will Ward and O. J. Wood, for failure to work the public roads of Shackelford ■county. Wood was not upon trial. The other defendants were found guilty upon their joint trial, and were fined in the sum of one dollar each. This appeal is prosecuted by the defendants Bennett, Keefer and Stewart.

Tried below before the Hon. Eugene Williams. The conviction in this case was for the theft of a gelding, and the penalty assessed was a term of five years in the penitentiary. W. D. Barton testified, for the State, in substance, that the horse mentioned in the indictment was the property of his aged mother, who lived with him at the time of the theft, but that it was in his possession and under his control.

Tried below before the Hon. G. H. Noonan. The conviction in this case was for the robbery of Will Adams, in Bexar county, Texas, on the twenty-fifth day of February, 1886. The penalty assessed against the appellant was a term of five years in the penitentiary. Frank Conch was the first witness for the State. He testified that he had known the defendant, who was a hack driver, about two years.

Tried below before the Hon. William Kennedy. The conviction in this case was in the first degree for the murder of Ben Warren, in Nolan county, Texas, on the tenth day of February, 1885. The penalty assessed was a life term in the penitentiary. Beginning on page 17 of the nineteenth volume of these Reports will be found a full report of the proceedings had upon the habeas corpus trial, under the appellant’s application for bail.

Tried below before the Hon. W. H. Burkhart. The death penalty was assessed against the appellant in this ease upon his conviction in the first degree for the murder of John Smith, in Wharton county, Texas, on the first day of December, 1886. H. N. Spooner was the first witness for the State. He testified that he knew John Smith, the deceased, and last saw him alive on the afternoon of the first day of December, 1886.