Volume 27 — Texas Court of Appeals Reports

Tried below before the Hon. T. H. Conner. The conviction was in the second degree for the murder of W. D. Stouard, in Stephens county, Texas, on the eighth day of April, 1887. Held: at the house of the deceased on the night of the fatal day. The said inquest .was held by Justice of the Peace Williams and several gentlemen who sat as a coroner’s jury.

Tried below before the Hon. J. M. Rodriguez, County Judge. A fine of five dollars was assessed against the appellant upon his conviction for offering adulterated food for sale, under an information which charged him as follows: “In the name and by the authority of the State of Texas: E. R. Tarver, county attorney of Webb county, State aforesaid, in behalf of the State of Texas, presents in the county court, at the August term, A. D. 1888, of said county, that Ypolito…

Tried below before the Hon. W. P. McLean. The conviction in this case was in the first degree for the murder of G-. W. Wood, in Bowie county, Texas, on the eighth day of March, 1887. The penalty assessed by the verdict was a life term in the penitentiary. John W. Glowers was the first witness for the State. He testified that he knew the defendant, whom he identified in court, and that he knew Wood in his lifetime.

Tried below before the Hon. J. C. Randolph. The conviction in this case was for the theft of a horse, and the penalty assessed by the verdict was a term of five years in the penitentiary. The only testimony in the record in any way connecting the defendant with the alleged stolen horse is the testimony of the State’s witnesses Webster and Pride, the substance of whose narratives is set forth in the opinion of the court.

Tried below before the Hon. H. Teichmueller. The conviction in this case was for perjury and the penalty assessed against the defendant was a term of five years in the penitentiary.

Appeal, from the District Court of Fayette. Tried below before the Hon. H. Teichmueller. This is a companion case to that of Wilson v. The State, which immediately precedes it. The perjury assigned is the same in each case, and the penalties assessed by the juries is the same — confinement in the penitentiary for five years.

Tried below before the Hon. Lafayette Kirk, County Judge. The opinion discloses the case. A fine of five dollars was the penalty assessed.

Tried below before the Hon. H. 0. Pleasants. The opinion states the nature of the case. The penalty imposed by the jury was a fine of fifty dollars. The proof showed that the commissioners court of Goliad county, after examining the statutes, and among them article 250 of the Penal Code, as to its power to appoint an agent to purchase mules for the use of the county, directed the defendant, one of its members, as its agent to purchase the two mules for the said county.

Tried before the Hon. J. H. Henderson. This conviction was for the theft of a horse, and the penalty assessed against the defendant was a term of five years in the penitentiary. Gordon Cook was the first witness for the State. He testified that he lived in Milam county, Texas, about three miles fr'om the town of Buckholts, and lived at that place in 1887. TTi« certain small bay horse disappeared from the range near that place, in the spring of 1887.

<p>Appeal from, the District Court of Dallas. Tried below before Hon. George F. Aldridge.</p> <p>The conviction in this case was in the second degree for the murder of John Collier, in Dallas county, Texas, on the twenty-eighth day of October, 1886, The penalty assessed against the appellant was a term of five years in the penitentiary.</p> <p>John Luck was the first witness for the State. He testified,' in substance, that he was engaged in the mercantile business at Eagle Ford, Dallas county, Texas. He knew the defendant, and he knew John Collier, the deceased, in his lifetime. Witness could not state the exact ¿late of John Collier’s death, but it occurred in October, 1886. Collier, in his wood wagon, drove up to the front of the witness’s store, in the afternoon of the fatal day, and called to witness to bring him five cents worth of candy for his child. Y/itness took the candy to him, and discovered that he was'very drunk. He produced a bottle of whisky from which he and the witness, at his invitation, took a .drink. Collier then attempted to get out of his wagon, but fell out across the doubletree. About that time the defendant, with Sam Rose and James. Wright, each driving a wagon,, arrived at the store, all of said parties, including Collier, having-come from the direction of Dallas. About the time that the several wagons stopped, Collier remarked that his team “was the d—dost fastest team on the road.” Defendant then said to Collier: “You are not the fastest man on the road.” ■ Collier replied to him: “Young, man, I want nothing to do 'with you.” Thereupon the defendant advanced upon Collier with his right hand on his hip and a little behind him. Collier backed from and fired upon the defendant as he advanced, missing bim Defendant then retreated, but continued to quarrel with Collier. The witness, who had gone into his store, came out, requested the parties to drop the matter, and to come into the store and take cigars with him. They presently agreed to do so, and took cigars. Collier then got into his wagon and drove off towards his home. Thirty minutes later the other parties followed, defendant riding the horse of Lon Barrett, who arrived about the close of the difficulty, and Barrett driving defendant’s team.</p> <p>Cross examined, the witness stated that he. was at and in charge of his store on the fatal evening, and waited upon all customers. Defendant and Rose and Wright had not yet reached the store when the witness and Collier took a drink of whisky from Collier’s bottle. Witness was in his store when Collier fired the shot at defendant, but he saw the shooting. Defendant was then in his shirt sleeves, and had no weapon on, his person that the witness saw. The witness could not now say whether or not the defendant ran when Collier drew his pistol, but knew that the defendant did not run into the witness’s store either then or after the shot was fired by Collier. Witness did not hear defendant tell Collier that he, defendant, was unarmed, and that he, Collier, might search him to verify that statement. The defendant lived about a mile and a half from Eagle Ford, beyond the river. Collier lived on the same road, about three and a half miles from Eagle Ford—about two miles beyond the defendant’s house.</p> <p>S. B. Rose was the next witness for the State. He testified, in substance, that he lived about a mile and a half north from Eagle Ford, within a very short distance of the house of the defendant, and between that house and Eagle Ford. Collier, defendant, James Wright and witness each took a wagon load of wood to Dallas on the fatal Saturday. Collier was the first of the parties to start home on that evening. Witness, defendant and James Wright, the one behind the other in the order named, left Dallas together, each driving his own wagon. At or near Cottonwood branch, which was about a mile east from Eagle Ford, they overtook and passed Collier, who was lying in his wagon, with his hat over his face, and very drunk. Having passed Collier a short distance, witness, defendant and Wright stopped their wagons, and defendant said that he would go back and “cut” Collier a few “licks” with his whip. Wright and Dan Curtis, who had joined the party, were present, and heard defendant threaten to go back and strike deceased with his whip. Witness, however, would not permit defendant to go back to Collier’s wagon, but went himself, waked Collier, and told him to sit up to avoid falling and hurting himself. Witness in his wagon, defendant and Curtis in defendant’s wagon, and Wright in his wagon, then drove on to Luck’s store at Eagle Ford, in the order -named, witness reaching the store in advance of his companions, and all of them getting there before Collier arrived. Witness went into Luck’s store and purchased some candy for his children, Luck being present and waiting on him. After the other parties arrived, and while witness was in the store, Collier drove up, passed around the other wagons, and stopped his wagon in front of the others. The witness presently heard the report of a pistol, and, upon looking out of the store, saw Collier with one hand to his head, and smoke ascending from a pistol in the other hand. Witness did not see the pistol, but saw the smoke. Collier was retreating when he fired the shot. He put his pistol back into his pocket almost immediately after he discharged it. Luck was in his store waiting on the witness at the time Collier fired upon defendant, and witness was standing at the end of the counter nearer the front door than Luck then was. About that time Luck stepped to the door and.called to the parties: “ Drop that matter, and come in and take cigars with me.” The several parties then came into the store and each took a cigar. About that time Lon Barrett came to the store on horseback.</p> <p>A few minutes later Collier got into his wagon and drove slowly towards his home. Thirty minutes later the witness, in his wagon, defendant next, Wright next, and Barrett on horse- . back, following, left Luck’s store and traveled rapidly over the same road in the wake of Collier. Before leaving Luck’s store defendant repeatedly requested Barrett, to drive his wagon and permit him to ride his, Barrett’s horse, but Barrett refused. The parties reached the west fork of the Trinity river in the order named, Barrett still on horseback. Collier had then crossed the river and disappeared. On the south bank of the said west fork of the Trinity river the parties stopped. The defendant there laughed and cried alternately in a very excited manner, and again begged Barrett for his horse for the purpose of riding hurriedly home to get his pistol and intercept and kill Collier. Witness and the others strove to quiet defendant, and urged him to let the matter drop. After considerable talk they prevailed upon the defendant to agree to drop the matter. Defendant then said that he wanted no difficulty with Collier, and would drop the matter; whereupon the witness requested Barrett not to change his mind and lend his horse to defendant, and drove across the river without stopping to water his horses, and started rapidly to his home, about a mile distant. At a short distance from the river, it then being about dark, a man on horseback, and riding rapidly, passed the witness, going in the same direction that witness was traveling. The witness did not recognize either the horseman or horse. Just before reaching his house the witness heard a pistol shot, and when he got nearer his house he saw a man lying near the well, which was near the road, and between the road and witness’s house. He went to that man and found him to be John Collier. While examining Collier a man rode up and asked witness: “Is Collier much hurt?” Witness replied: “ Yesj he is killed.” The man said: “That is all right,” and rode off. It was then too dark to distinguish the man’s features, but by his voice the witness recognized the defendant.</p> <p>When found by the witness, Collier was lying with his feet at the well and his head pointing towards witness’s house. Witness’s wife presently arrived with a light, and witness seized Collier’s body for the purpose of taking him into the house, but found that he could not move him alone. In trying to take Collier up, the witness pressed his thigh against Collier’s pocket, and by that means felt Collier’s pistol in his pocket. When he put Collier down he took the pistol out of his pocket and handed it to his own wife. Witness’s wife then attempted to aid witness to take Collier to the house, but they were unable to move him. A few minutes later Mr. LeFott, on his way home in his wagon, appeared in the road, and witness called upon him for assistance, and with LeFott’s aid he succeeded in getting Collier into the house. A doctor was then sent for, but did not reach the house for some time. This occurred on Saturday, October —, 1886. Collier died at the witness’s house on the following Monday. He died from the effects of a gun shot which entered his stomach about two inches from the navel. All of the parties named by the witness, including himself, were drinking on the fatal Saturday, but Collier was the only one of the parties who was drunk.</p> <p>Cross examined, the witness reasserted most positively that when he, with defendant, Wright and Barrett, left Luck’s store on the fatal evening, the defendant was driving his own wagon, and Barrett was riding horseback, and that they continued to travel in that manner until they reached the south bank of the west fork of the Trinity river, which was about a mile from Luck’s store. The witness left the said parties on the said bank, at which time defendant had not left his wagon and mounted Barrett’s horse. Witness saw no more that night of any of the said party except defendant, whom, as stated, he recognized only by his voice. The witness was equally positive that Collier was the last of the party to reach Luck’s store on their return from Dallas on the fatal evening. It was getting dark when the witness left the river for home. Collier, who was quite half an hour ahead of witness, had then had ample time to reach his home, which was but two and a half miles from the river. The defendant’s house was situated about two hundred yards beyond the house of the witness, which was one mile from the river—all of the said houses being on the same road. The witness could not say how long it was after he left the river when the man on horseback passed him in the bottom, but at least ten minutes had elapsed. He could not say accurately how far he had gone when that man passed him, but he had reached a point not far from his house. It was too dark to recognize either the man or the horse when they passed, and, besides, the road was flanked on either side by dense timber. Witness saw no other person than the said horseman between his home and the. river on that night. Witness’s house stood about forty yards from and to the left of the road. The well mentioned by witness was about ten yards from the road and toward the river from the house. The house and well were in timber on the edge of a glade. Before reaching the well-, on the fatal evening, the witness turned from the road, to the left, to go to his house. When he stopped near his house he heard the groaning of a man near the well. He went at once to the well and found John Collier, wounded, as before stated, lying on the ground. He did not then nor afterwards on that night see either Collier’s wagon or team, nor Barrett’s or any other horse. Witness did not, on that day, tell defendant where his, witness’s, pistol was kept, or where it was on that night. Defendant had frequently visited witness’s house, and knew as well as witness did, that he, witness, habitually kept his pistol under the head of his bed in his sleeping room.</p> <p>The witness did not, when he reached Collier, a few minutes after the shooting, find Collier’s pistol on the ground by Collier’s side, and pick it up, and he denied that he ever, at his house on that night, or the next morning, or elsewhere at any other time, tell any person whomsoever that he found arid picked up Collier’s pistol from the ground, by Collier’s side, as soon as he reached him. He denied that, at his, witness’s, house on that night he told Mrs. Miller, the wife of defendant, that he found Collier’s pistol on the ground and picked it up. He denied that, on the same occasion, he told Mrs. Miller that Collier ran on defendant at Luck’s store that evening and defendant had to run from him, and that he ran on defendant again at his,' witness’s, house, and defendant had to shoot him. He denied that on the same or any other occasion he told Mrs. Miller that, after the shooting he, witness, gave defendant his, witness’s, pistol. He denied that, on the next morning, at his, witness’s, house, he got John Miller, the brother of defendant, away from the crowd there assembled, and told him that the defendant was not to blame for shooting Collier, but had to do it, and that he, witness, found Collier’s pistol on the ground near where he lay. He denied that, after LeiSTott arrived, he called to his wife to bring a light, or that she then brought the light. He denied that he went to defendant’s house on that night, and particularly did he deny that, going to that house on that night, he called to defendant, and in the presence of Lon Barrett told defendant that he, witness, had dropped Collier’s pistol and wanted a light to find it, and that defendant gave him a light, and he searched for Collier’s pistol. He denied that he took a package of cartridges to defendant’s house on that night after the shooting, and gave them to the defendant in the presence of the said Barrett; nor did he at that time, nor at any other time, there nor elsewhere, in the presence of Barrett or any other person, tell defendant that he, defendant, might need his, witness’s, pistol, and to keep it; nor did he ever tell any person that he ever, at any time, gave his said pistol to defendant. -He denied that, in the court house in the city of Dallas, during the habeas corpus trial of this defendant, he told one Thomas Alford that he, witness, was present when Collier was shot; that he tried to hold Collier and keep him off of the defendant, but that Collier pulled loose from him and rushed upon defendant with his pistol in his hand, and defendant had to kill him to save his own life. He did not, at the same time and place, nor elsewhere at any other time, tell the said Alford that, after the shooting, he found and picked up Collier’s pistol from the ground near where he fell; nor did he tell Alford that he gave defendant his, witness’s pistol. The witness was not an infidel. He believed in religion— the religion of truth and science.</p> <p>Mrs. Martha Rose, the wife of the preceding witness, testified, for the State, that on the fatal night the defendant rushed into her house and asked her for her husband’s pistol. She told him that she did not know where it was. Defendant then sprang to the head of the bed, seized her husband’s pistol and rushed out of the house. About ten minutes later the witness heard, the report of a pistol, fired outside of the house. Her husband not being at home the witness became much frightened, and immediately after the pistol fired she blew out the light and sprang into bed. Her husband soon afterwards knocked at the door, but witness was too much frightened to recognize his voice, and she did not open the door until he called for a light the second time. She then got up, lit the lamp and went to where her husband was. He told her that Collier had been shot. She and her husband then went to Collier and attempted to move him into the house, but were unable to do so. Her husband then said that he felt Collier’s pistol pressing against his thigh. He thereupon took the pistol from Collier’s pocket and gave it to her. LeFTott soon arrived and helped witness’s husband remove Collier into the house. Witness took Collier’s pistol into her house and put it on the mantel. Collier fell about seven steps from witness’s house. On her cross examination this witness denied that she testified on the habeas corpus trial that defendant fired the pistol as he went out or immediately after he got out of the house. Witness heard no voice or voices at the time, nor just before the shot was fired.</p> <p>The next witness for the State was Mrs. Jane Fleming. She testified that she was the sister-in-law of John Collier. She got to Eose’s house on Sunday, the day after the shooting. She found Collier suffering from a gunshot wound in the stomach. He suffered more at intervals than at others. The bowels were much swollen and Collier was very sick—vomiting at intervals. He complained of fullness in the bowels. Witness took a seat by Collier’s bed and said to him: “John, do you know that you are going to die?” He replied: “Aunt Jane, I am bound to die.” He did not say that he was then dying, nor when he would die, nor how long he expected to live. Witness did not tell him that he was dying, nor did she hear any other person so tell him. Having stated to witness that he was bound to die, he said: “I was on my way from the well to the house to get a cup with which to get some water, when Mason Miller stepped out from the house and shot me. I told Miller not to shoot me.”</p> <p>F. C. Beard testified, for the State, that he was a deputy sheriff of Mason county, Texas, and in August, 1887, arrested the defendant in the said county. Defendant passed under the name of John Miller in Mason county. The distance from Dallas to Mason county was about three hundred miles.</p> <p>John Doyle, a resident of Mason county, also testified, for the State, that defendant, in Mason county, passed under the name of John Miller. He did not know that defendant’s full name was George Mason Miller, and that his uncle, with whom be lived in Mason county, had a son named George Miller, and. was in the habit of calling defendant "John” in order to distinguish Mm from George Miller</p> <p>Sheriff Lewis, of Dallas county, testified that he searched for the defendant, after the shooting, throughout Dallas county, but failed to find him.</p> <p>Lon Barrett testified, for the State, that he reached Luck’s store on the fatal evening, after Collier had fired the shot ati defendant, and had no personal knowledge of what transpired, at the time. Collier left Luck’s store soon after the witness reached it, and the other parties—Rose, defendant, Wright and witness—left it about thirty minutes later. When the parties last named started to leave the store, the defendant asked the witness to drive his team, and to lend him the horse he, witness^ was riding. He said that he wanted to go to his house, get a pistol and kill Collier. The witness refused to lend his horse to the defendant for that purpose, but said to defendant: "We have had enough trouble; you had better let this matter drop.” After considerable talking and urging, the defendant, who appeared to be very much excited, agreed to drop the quarrel and not molest Collier. The witness, who was going home with defendant to spend the night, then agreed to drive defendant’s team and lend defendant his horse. The parties then left Luck’s store, Rose in his wagon leading, witness driving defendant’s wagon following, Wright following witness with his wagon, and the defendant riding witness’s horse. In the order named the party traveled slowly to the west fork of the Trinity river. Throughout the journey to the bank of the river the defendant appeared to labor under great excitement, weeping and laughing alternately. The parties stopped on the river bank, and witness and Wright pleaded a considerable time with defendant to abandon his designs upon the life of Collier. Defendant became again excited, apparently by brooding over the occurrence at Luck’s store, but was finally a second time prevailed upon to agree to drop the difficulty. Rose drove into and out of the river on the. other side. Then Wright in his wagon, followed by the defendant on witness’s horse, went into the river, leaving the witness with defendant’s wagon and team on the south bank. Witness then drove into the river, watered the team and then drove out. When he mounted the bank on the other side neither Wright and his team nor defendant andawitness’s horse were in sight. Witness did not see Wright again on that night. He next saw defendant when he reached the vicinity of Eose’s house. Defendant was then standing by the witness’s horse, at the edge of a small glade immediately east of and near the well at Rose’s house. Collier’s team with the wagon was then standing in the main road some distance southeast from Rose’s well. Defendant, riding witness’s horse, and witness, driving defendant’s team, went immediately to defendant’s house. After reaching home the defendant unhitched his horses from his wagon, saddled one of them and left, going towards the house of Mrs. Girard, some miles distant, in theasouthwest portion of the county. Witness, riding his own horse, accompanied defendant as far as the house of Mr. Jim Horton, near Mrs. Girard’s, where he passed the night.</p> <p>Cross examined, the witness said that he did not, when he reached the vicinity of Rose’s house, go to the well where Col-' Her was lying, but went immediately home with defendant. Very soon after witness and the defendant reached the defendant’s house, S. B. Rose came there. He said that he dropped Collier’s pistol in front of defendant’s house, and asked for a light with which to hunt for it. Defendant gave Rose a light and Rose went down the road towards his house, after which the witness did not see Rose on that night. While at the house Rose gave defendant a sack, which he told defendant contained cartridges, and which, he said, defendant might need to use in the defense of himself. The defendant owned a pistol, which he always kept at his house. Defendant’s wife was not at home when witness and defendant got there, but was said to be visiting the house of her father, a short distance off. The witness’s present statement was the first full statement of the facts in his knowledge made by witness, although, when he was before the grand jury, Mr. Clint directed him to tell all he knew about the occurrences on the fatal evening and night.</p> <p>Henry Brittain testified, for the State, that John Collier was his half brother, and the wife of the defendant was his sister. The witness heard of the shooting of Collier on the night that it happened. He went at once to Rose’s house, where Collier was, and remained there until about four o’clock on the next morning. He found Collier shot in the stomach. His bowels were much swollen, and he told the witness that he was bleeding internally. It was the recollection of the witness that when, a few minutes after his arrival, a physician was sent for, Collier said that it was "of no use to send for a doctor.” Witness asked Collier who shot him, and he replied: " Mason Miller. ”</p> <p>Witness then asked him how the shooting happened; what he was doing when shot; where he was, and when he first saw Miller. Collier said: "I was at the well, drinking, when I heard the click of a pistol. I turned and saw Miller at the corner of the house, and asked him not to shoot me, but he shot me.”</p> <p>The State closed.</p> <p>James Wright was the first witness for the defense. He testified that he, with defendant, Rose and Collier went to the city of Dallas, each with a load of wood. Collier was the first to start home in the evening. Some time afterwards Rose, defendant and witness, traveling in company in the order named, left Dallas for home. At Cottonwood branch, about a mile from Luck’s store, the said parties overtook and passed Collier. Collier, who was very drunk, was sitting in the bed of his wagon with his hat drawn down over his face, and had dropped his lines. Rose, defendant and witness stopped their teams after passing Collier, and about that time Dan Curtis joined them. Rose went back to Collier’s wagon, waked him up and gave him his lines. It was not true, as testified by Rose, that then, or at any other time on that evening, defendant expressed a desire to go to Collier’s wagon and strike Collier with his whip. Just before Luck’s store was reached, Collier passed the wagons of the other parties and reached the said store first. He was on the ground, standing at the head of his team, when the other wagons drove up and stopped near the store. Defendant then came to witness’s wagon and got a small national flag which had been given to witness in town and attached the •flag to the bridle of one of witness’s horses, slapped the horse’s neck, and said: "Here is the fastest d—d horse on the road.” Collier stepped forward and said: "I am the fastest d—d man on the road.” Defendant replied: "John Collier, you are not the fastest man on the road.” Collier replied: "Young man, I want no track with you.” Defendant said: "That’s all right, but you are not the fastest man on this road.” Collier then started towards defendant, and defendant, who was in his shirt sleeves, threw down his whip and gloves, pulled up his pants and started towards Collier, when Collier drew his pistol and fired at defendant. Defendant ran into Luck’s store, but soon reappeared ón the gallery and said to Collier: “I am unarmed and you know it. If you will lay down your pistol and fight me fair, I am ready for you.” About.this time Luck came out of the store with a box of cigars and said: “You all dry upj make friends and I will treat.” Each of the parties took a cigar and Collier soon got into his wagon and left, and about this time Lon Barrett, on horseback, arrived at the store. Defendant then attempted to prevail upon Barrett to drive his wagon and lend him his, Barrett’s, horse. Barrett at first refused but finally consented, and, about thirty minutes after Collier left, the other parties started, Rose in his wat:on going in the lead, Barrett in defendant’s wagon following Rose, witness in the wagon following Barrett, and defendant riding Barrett’s horse. The said parties traveled in the order named as far as the south bank of the west fork of the Trinity river, which was about a mile distant from Luck’s store. The defendant displayed great excitement and manifested and expressed a desire to go on home, get his pistol and kill Collier. The party stopped on the south bank of the river, and witness and Barrett urged defendant to abandon his design upon Collier’s life. Defendant finally said that he wanted no trouble with Collier and would drop the matter. Bose then drove across the river. Witness and the defendant, the latter riding Barrett’s horse, then went into the river, watered their horses and crossed, by which time Rose disappeared, and Barrett, in defendant’s wagon, was still on the south bank. Witness then told defendant to ride on home and do up his chores, and that he, witness, would call at his house later, to go with him to the meeting of the Farmer’s Alliance. Defendant agreed and rode off, and witness saw him no more on that night.</p> <p>D. A. Williams testified, for the defense, that he was present at the habeas corpus trial of the defendant before the Hon. J. M. Hurt, judge of the Court of Appeals, and heard the testimony of Mrs. Martha Rose delivered on that occasion. Mrs. Rose stated, in the course of her evidence, that, having secured Rose’s pistol, the defendant rushed out of the house and fired the pistol immediately—that she heard the report just as the defendant got out of the house.</p> <p>R. B. Hickman testified, for the defense, that he saw Collier and the defendant in the city of Dallas early on the afternoon of the fatal Saturday. Passing Collier and some other parties near a saloon on the public square, he heard Collier say to such other parties that Mason Miller was a d—d scoundrel, and that he. Collier was going to kill him. Collier then followed the defendant, and defendant drew back to get out of Collier’s way. Other parties who were then with Collier placed themselves between Collier and defendant to prevent a difficulty, and defendant walked off to the place where several wagons were standing, and witness saw him no more on that evening. After defendant left the crowd, Collier said: "God d—n him, I have got a six shooter that will get him.” During the time covered by these occurrences, Collier exhibited a pistol and a knife to the witness. Soon after defendant went to the wagon, a man whom witness did not know, but who did not correspond with the description given the witness of James Wright, came hurriedly to the crowd around Collier. S. B. Rose was one of the parties with Collier when! Collier threatened to kill defendant. This witness stated on cross examination that his principal business in life was drinking beer, but he sometimes hauled wood. The knife exhibited by Collier was a weapon about twelve inches in length. Witness had often, previous to the said Saturday, heard Collier threaten to kill defendant.</p> <p>Thomas Alford was the next witness for the defense. He testified that he met Collier in Dallas on the fatal day, and about noon on that day took a drink with him in Tom Cade’s saloon. On that occasion Collier told the witness that he was armed, and that he intended to kill Mason Miller. Witness then saw that Collier was armed with a pistol and a knife. He knew Collier well and considered him to be a dangerous man, and one who would most probably execute a threat. Witness, feeling a great interest in the case of the defendant, attended the habeas corpus trial, and during that proceeuing, at the court house, in the city of Dallas, had a talk with the State’s witness Rose, in the course of which talk Rose told him that he, Rose, was present, and saw the shooting of Collier by the defendant; that he tried to hold Collier and keep him off of the defendant, but that Collier pulled loose from him and rushed upon defendant with his pistol in his hand, and that defendant-had to shoot Collier in self defense, and that after the shooting he found Collier’s pistol on the ground by Collier’s side, and picked it up before anybody else reached Collier. Rose, in the same conversation, told the witness that after the shooting he, Rose, gave defendant his, Rose’s, pistol. This conversation occurred just before the habeas corpus trial commenced.</p> <p>William Wright testified, for the defense, that on one occasion previous to the fatal Saturday, Collier told him that he, Collier, had had several “rackets” with the defendant, and that' he, Collier, intended to cut the defendant’s throat the very next time the defendant crossed his path. He had often heard Collier threaten to kill defendant. Witness considered Collier a violent, dangerous man, who would be likely to execute a threat.</p> <p>Mrs. Lizzie Miller, the wife of the defendant, and the half sister of Collier, testified, for the defense, that she was at her father’s house, a short distance from the house of her husband, at the time that Collier was shot. She heard of the shooting on that same night, and went to Rose’s house, where Collier then was. When she reached the house, the State’s witness, S. B. Rose, told her that Collier tried to shoot defendant at Luck’s store on that evening, and that defendant had to run into Luck’s store to save himself; that, when they reached his, Rose’s, house on that night, Collier again ran upon defendant with his pistol, and that defendant had to shoot him in self defense; that he, Rose, afterwards picked up Collier’s pistol from the ground by Collier’s side, and that, after the shooting, he gave the defendant his, Rose’s, pistol. Defendant had a pistol of his own at home. It was in the house when witness left, late that evening, to go to her father’s house. ■ Defendant always kept his pistol at home, and never carried it about his person.</p> <p>Dock Ward testified, for the defense, that he met Collier in the road two or three days before the fatal Saturday. Collier was in his wagon, and had a pistol in his hand, which he was polishing. On that occasion he told witness that he would kill Mason Miller before the close of the week. Witness had often heard Collier, when drinking, threaten to kill the defendant. He considered Collier a violent, dangerous man, who would most likely execute a threat.</p> <p>Doctor Stovall testified, for the defense, that he reached Rose’s house about two o’clock on Sunday morning. He remained there about an hour, and returned again about nine o’clock. He examined Collier’s wound, which he decided was necessarily fatal. He did not tell Collier that he would die, but told his relatives that it was useless for him, witness, to comeback, as he could do Collier no good. Witness prescribed morphine to alleviate the wounded man’s pain, but not enough to affect his understanding. He was afterwards informed that Collier’s stomach failed to retain the morphine.</p> <p>Mrs. Bettie Alley, the next witness for the defense, testified that she went to Bose’s house to see Collier on Sunday evening*, and remained there about two hours. During the time that she was there, Collier was under the influent- of morphine, and-talked foolishly. He did not appear to know what he talked-about.</p> <p>Mrs. Sue O’Day testified, for the defense, that she met and talked with Collier in the city of Dallas on the Thursday before the shooting. On that occasion Collier told witness that he intended to kill Mason Miller. Witness said: “ I reckon, not.” Collier replied: “Yes, I intend to kill the whole d—n Miller outfit.” Witness said to him: “You will not kill his wife— your sister Lizzie?” Collier replied: “X don’t know about her, but she is nothing but a God d—d black-eyed whore.” Witness had often heard Collier threaten defendant, but never before heard him make such a remark about defendant’s wife. She met defendant in Dallas on the morning of the fatal Saturday, and told him what Collier said to her on the previous Thursday.</p> <p>On cross examination, this witness said that when she told defendant on Saturday what Collier said on Thursday about Mrs. Miller, and about killing “the whole God d—d Miller outfit,” the defendant stood mute for a minute, and then walked off, remarking, interrogatively: “Will Collier do all that by himself ?” Witness never heard defendant utter a threat against Collier.</p> <p>John LebTott testified, for the defense, that he went to the city of Dallas on the fatal Saturday, and reached Bose’s house, on his return, after dark. When he got about opposite Bose’s house Bose called to him that Collier was lying there, shot. He went to the place between Bose’s house and well, and found Collier lying on the ground. Bose then called to his wife to bring a light from the house. Mrs. Bose brought a lamp and witness and Bose carried Collier into the house. There was no pistol about Collier’s person nor on the ground, nor did Bose, while witness was there, take a pistol from .Collier’a pocket, nor did he give a pistol to Mrs. Bose after she reached the place where Collier was, nor did Mrs. Eose take a pistol into the house.</p> <p>John Lasater testified, for the defense, that he lived on the main road between Rose’s house and the crossing of the west fork of the Trinity, and about a quarter of a mile from Rose’s house. He owned a shot gun which he kept loaded at all times, and which was kept at his said house. He had often loaned that gun to defendant, and defendant knew perfectly well where it was kept and that he could get it at any and all times. The said gun was at the witness’s house, loaded, on the fatal Saturday evening, and there was no reason why the defendant should or could hot have taken it. It was generally known to the witness and to the neighbors at the time of the shooting that no bucket was kept at Rose’s well, and that no person was permitted to water horses at that well. Collier was a violent, quarrelsome and dangerous character.</p> <p>Mrs. Puss Girard testified, for the defense, that the defendant was her neighbor. Defendant came to her house on the night of the shooting, and remained until next morning, when he left. He returned a few days later and stated that he. was going to the city of Dallas to surrender. Witness dissuaded him from that purpose, advising him against surrender at that time, upon the ground that the excitement and feeling against him was still too great to render surrender safe.</p> <p>Mrs. Bowers and Miss Shuler Bowers testified, for the defense, that they were at Eagle Ford on the evening of the fatal day, when Collier shot at defendant. When that shot was fired defendant ran into Luck’s store.</p> <p>John Miller, the brother of defendant, testified, for the defense, that he went to Rose’s house on the morning after the shooting. When he arrived Rose took him aside and told him that the defendant was not to blame for shooting Collier; that he had to do it, and that after the shooting he, Rose, found Collier’s pistol on the ground near where he fell. The defendant, at the time of the shooting, had a pistol of his own at his home, which was within two hundred yards of Rose’s house.</p> <p>Dan Curtis testified, for the defense, that he overtook Rose, defendant and Wright, on the fatal Saturday evening near Cottonwood branch, between Dallas and Eagle Ford, to which place he went with them. They soon overtook and passed Collier, who appeared to be asleep in his wagon. They then stopped and Rose went back to Collier’s wagon and waked him up. Defendant did not threaten at that time to go back and strike Collier with his whip. Collier soon passed the other wagons and reached Luck’s store first, and was standing at the head of Ms team when the others arrived. A dispute then arose .between defendant and Collier. Collier then drew a pistol and fired upon defendant, at which time Collier was retreating and defendant advancing.</p> <p>Mr. Beck testified, for the defense, that he knew John Collier, and that he was a violent, dangerous man, who would most likely execute a threat</p> <p>The defense closed.</p> <p>Jack Beets testified, for the State, in rebuttal, that about a year before the killing of Collier he had a conversation with the defendant about certain threats uttered by Collier against defendant, in the course of which the defendant said to witness: "The threats of John Collier do not amount to any more than the threats of an old woman.” Collier was a quarrelsome man when drinking, but was neither a dangerous man nor a man likely to carry out a violent threat.</p> <p>Louisa Langley testified, for the State, that, several months before the shooting of Collier, the defendant came into the field where the witness and a daughter of Collier were at work, and in the course of a wordy altercation that ensued said that he intended to kill Collier. The reputation of Mrs. Miller, the wife of defendant, for chastity, was very bad in the neighborhood in which she resided. Witness had heard that reputation pronounced bad by a large number of people, the names of whom, nor of any of whom, was she able to give. Four or five other witnesses for the State testified as did the witness Louisa Langley as to Mrs. Miller’s reputation for chastity. Three of the same witnesses declared that Collier was not a dangerous man.</p> <p>The State closing finally, the defense introduced half a dozen witnesses who testified that Mrs. Miller’s reputation for chastity in Dallas county, where she had always lived, was good and had always been good.</p> <p>The charge of the court on adequate cause, referred to in the fourth head note of this report reads: "By the expression "adequate cause’ is meant such as would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. Insulting words or gestures, or an assault and bafetery so slight as to show no intention to inflict pain or injury, are not ‘adequate causes.’”</p> <p>“The following are deemed adequate causes:</p> <p>“1. An assault and battery by deceased, causing pain and bloodshed.</p> <p>“2. A serious personal conflict, in which great injury is inflicted by the person killed by means of weapons or other instruments of violence, or by means of great superiority of personal strength, although the person guilty of the homicide were the aggressor, provided such aggression was not made for the purpose of killing.</p> <p>“3. Insulting words or conduct toward the wife of the party guilty of the homicide.”</p>

Tried below before the Hon. H. C. Pleasants. This conviction was in the first degree for the murder of W. B. Stonebraker, in DeWitt county, Texas, on the fifteenth day of August, 1887. A life term in the penitentiary was the penalty assessed against the appellant. W. L. Rudd, sheriff of Karnes county, Texas, was the first witness for the State. He testified that he lived in the town of Helena, Karnes county, in August, 1887.

Tried below before the Hon. W. M. Key, This conviction was for the fraudulent disposition of mortgaged property, and the penalty assessed against the appellant was a term of two years in the penitentiary.

Tried below before the Hon. W. A. Blackburn. Under the second count in the indictment, the appellant in this case was convicted as an accomplice to murder in the first degree. A life term in the penitentiary was the penalty assessed by the verdict. Hugh Brown was the first witness for the State. He testified that the deceased, Ellick Brown, was his brother. The said Ellick lived in Lampasas county, Texas, about one mile east from the residence of the witness.

Tried below before the Hon. W. P. McLean. Held: and dragged him to the gate, where they were stopped by Mr. Gray and Mr. Colzin, who interfered on behalf of the witness. On re-direct examination by the State, the witness stated he had never before told anybody that the defendant told him that Ike Bailey struck and cut him before he, defendant, killed him.

Tried below before the Hon. H. G. KittrelL The conviction in this case is in the first degree for the murder of Robert Martin, in Leon county, Texas, on the sixth day of May, 1888. A life term in the penitentiary was the penalty assessed by the verdict. The appellant in this case was one of the relators in the Smith and Hughes habeas corpus proceedings reported in the twenty-sixth volume of these Reports, beginning on page one hundred and thirty-four.

Tried below before the Hon. B„ 0. Barmore, County Judge. The conviction in this case was for an aggravated assault upon Sally King, a female, the penalty assessed being a fine of twenty-five dollars. The question determined on this appeal does not requite a statement of the proof,

Tried below before the Hon. H. B. Pruitt, County Judge. The conviction was for an assault and battery upon Sam H. Winn, and the penalty assessed against the appellant was a fine of five dollars. Sam H. Winn testified, for the State, that he was a deputy sheriff of Leon county, located at the town of Marquez. On the night of August 13, 1887, the witness and Mr. Taney Burns went to the depot in Marquez to meet a lady passenger who was due on the incoming train.

<p>1. Theft — Evidence—Accomplice Testimony, — Ownership, like every other material issue on a trial for theft, must be proved by competent evidence, and if it rests upon the testimony of an accomplice such proof is insufficient unless legally corroborated.</p> <p>2. Same—Fact Case.—See the statement of the ease for the substance of evidence held insufficient to sunport a conviction for theft.</p>

Tried below before the Hon. T. W. Sims, County Judge. The opinion discloses the nature of the case, and the record brings up no statement of facts. The penalty assessed was a fine of ten dollars.

Tried below before the Hon. Gustave Cook. By indictment it-was charged that, in the county of Galveston, on January 18, 1887, the appellant unlawfully and wilfully did pursue and follow the occupation of selling spirituous, vinous and malt liquors in quantities less than one quart, and did then and there sell, spirituous, vinous and malt liquors to persons whose names are to the jurors unknown (the same being an act taxed by law), without first having obtained a license…

Tried below before the Hon. I. B. McFarland. This is the second appeal prosecuted by this appellant from conviction for the rape of Annie Knuppel, on the twenty-sixth day of January, 1886. The penalty assessed on this last trial was death.

Tried below before the Hon. Edwin Hobby. The conviction in this case was for negligent homicide, and the penalty assessed against each of the appellants was a fine ©f two hundred and fifty dollars. The indictment impleaded 0.

Tried below before the Hon. J. M. Smither, County Judge. This conviction was for the theft of M. G. Dickie’s hog, and the penalty assessed against the appellant was a fine of ten dollars and confinement in the county, jail for twenty-four hours. M. G. Dickie was the first witness for the State. He testified, in substance, that, early in the year 1887, he moved from Doctor Thomason’s place, in Walker county, to another place some miles distant in the same county.

Davis, County Judge, The conviction was for aggravated assault and battery, and the penalty assessed against the appellant was a fine of twenty-five dollars.

Tried below before the Hon. J. C. Russell. The conviction in this case was for the theft of a horse, the property of Alejandro Guzman, and the penalty assessed against the appellant was a term of five years in the penitentiary. Alejandro Guzman was the first witness for the State. He testified that he lived at his ranch near the Aguelares depot, in Encinal county, Texas.

Tried below before the Hon. W. A. Davis, County Judge. The conviction was for the theft of a hog, the property of 8. C. Bitner. The opinion states the facts relative to the verdict. Stated briefly, the State’s proof shows that Bitner’s certain white hog, weighing between ninety and one hundred pounds, disappeared on or about February 16, 1888. Bitner did not know whether his said hog was dead or alive, or whether it had estrayed or had been stolen.

Tried below before the Hon. Eugene Williams. Thfs conviction was for the theft of a horse, and the penalty-assessed against the appellant was a term of five years in the penitentiary. The question involved in this appeal does not necessitate a statement of the evidence.

Tried below before the Hon. Gustave Cook. The conviction was for sodomy, alleged to have been committed upon one Milton Werner. The verdict reads as follows: “We, the jury, find Chas. Medis and Ed Hill guilty as charged of sodomy, and assess the punishment at ten years confinement in the penitentiary.” The details of the transaction involved in this prosecution are too foul and disgusting to be recorded even in a report of judicial proceedings.

Tried below before the Hon. H. B. Pruitt, County Judge. The conviction was for the tneft ©f Utsey’s hog, and the penalty assessed was a fine of one dollar and imprisonment in the county jail for one day. The substance of the testimony of the prosecuting witness Clements was that he and his family occupied a tent on the place of the defendant, about one hundred yards from defendant’s house.

Tried below before A. C. Turner, Esq., Special Judge. The indictment in this case charges the murder of James H. Black by John Middleton, in Lamar county, Texas, on the sixteenth day of November, 1884, and that the appellant and one Newt Harris were accomplices to the said murder of Black by the said Middleton; the particular acts charged against them being that they did, on the twelfth day of November, 1884, advise and encourage the said Middleton to kill and murder the…

Tried below before the Hon. T. H. Conner. At the August term, 1888, of the district court of Comanche county Mack Green, the appellant, was indicted for the murder of Sam Smith by shooting him with a gun on May 1, 1888. A trial was had at the same term, and appellant was found guilty of murder in the first degree, with a life term in the penitentiary assessed as his punishment. His motion for a new trial. being overruled he appealed to this court and assigns many errors.

Tried below before the Hon. Anson Rainey. The penalty assessed in this case was a term of two years in the penitentiary.

Tried below before the Hon. Gustave Cook. The conviction was for following the occupation of a retail liquor dealer, without' having first paid the tax levied by law on such occupation, etc. The penalty assessed against the appellant was a fine of four hundred and fifty dollars.

<p>Appeal from the District Court of Montgomery. Tried below before the Hon. James Masterson.</p> <p>The charging part of the indictment reads as follows: “* * That heretofore, to wit, on the twentieth day of September, in the year of our Lord 1886, in the county of Montgomery, in the State of Texas, Wiley Scott did then and there, intending to cheat and defraud Hartley Free School Community Ho. 70, in and for Montgomery county, in the State of Texas, knowingly, fraudulently and deceitfully present to J. M. Lewis, who was then and there county judge in and for said county and State, and who was by virtue of his said official position then and there had the supervision of the disbursement of the funds belonging to the public free school communities of sa,id county of Montgomery, in said State of Texas, which the said Wiley Scott then and there well knew, a certain false, fraudulent and deceitful written petition or request addressed to county judge of Montgomery county, requesting said official to appropriate sixty-one dollars and forty cents out of the funds of said school community to build a school house for said school community with the following names, to wit, ‘Sine,’ ‘Thompson’ and. ‘Hubert’ attached thereto as signers, which the said Wiley Scott then and there falsely and. fraudulently represented to the said J. M. Lewis, county judge as aforesaid, to be the genuine signatures of Canby Sims, Henry Hubert and Joe Thompson, who were then and there trustees of said school communities, and as such were by law authorized to make such requests, which said false, fraudulent and deceitful written request or petition is in substance, words and figures as follows, to wit:</p> <p>‘To County Judge Montgomery County:</p> <p>‘We respectfully ask that sixty one & T^- dollars be appropriated for building School House out of free school funds belonging to Hartley School Community Ho 70.</p> <p>‘Sine</p> <p>‘Hubert</p> <p>‘thompson</p> <p>And the said Wiley Scott did then and there falsely, fraudulenly and deceitfully represent to the said J. M. Lewis, county judge as aforesaid, that said false, fraudulent and deceitful request or petition aforesaid, which the said Wiley Scott then and there produced and presented to the said J. M. Lewis, county judge as aforesaid, was the written request or petition of the trustees aforesaid of said school community; that said trustees aforesaid signed the same as such trustees, and the signatures attached to said false, fraudulent and deceitful petition or request were placed on the same by the trustees aforesaid as their signatures; that said trustees had authorized him, the said Wiley Scott, to receive from said county judge as aforesaid, any draft or order that said official, in compliance with said false pretended request, might draw on the funds of said Hartley school community aforesaid—all of which said representations then and there knowingly made by the said Wiley Scott were false, and the said Wiley Scott then and there knew that the same were false. In fact and in truth the said false, fraudulent and deceitful written petitiori or request was not the petition of the trustees of said Hartley free school community aforesaid; and in fact and in truth the trustees aforesaid of the said Hartley free school community had not signed the said false, fraudulent and deceitful written petition or request aforesaid, and the names aforesaid then and there appearing thereon were not in fact and in truth placed there by them; and in fact and in truth the trustees aforesaid had not authorized the said Wiley Scott to receive for them any draft or order the county judge aforesaid, in compliance with said pretended, fraudulent and deceitful written petition or request, might draw on the funds belonging to the said school community; and the said J. M. Lewis, county judge as aforesaid, then and there believed that the said pretended, false, fraudulent and deceitful written request or petition, then and there produced and presented to him by the said Wiley Scott, was in fact and in truth a bona fide petition of the trustees aforesaid of the Hartley public free school community aforesaid for his approval of an appropriation for sixty-one dollars and forty cents to build a school house for said community, and then and there believed the false, fraudulent and deceitful representations aforesaid, then and there knowingly and falsely made to him by the said Wiley Scott aforesaid to be then and there true; and the said Wiley Scott, then and there, by the said false and fraudulent and deceitful pretense, pretenses and representations so made to the said J. M. Lewis, county judge as aforesaid, did unlawfully and fraudulently acquire"from the said J. M. Lewis, county judge as aforesaid, an order signed by him as county judge aforesaid, directing the "Treasurer of Montgomery county, State of Texas, who was then and there by virtue of his official position the custodian of the funds belonging to the communities of the public free schools in said county and State, to pay to bearer or any one of the trustees, sixty one & //r dollars out of the funds belonging to the said Hartley free school community aforesaid, which said order is in words, substance and figures as follows, to wit:</p> <p>‘The Treasurer of Montgomery County is respectfully requested to pay the above amount $61.40 to the bearer or any one of the trustees of Hartley School Community Ho. 70, and charge the same to said Community.</p> <p>‘J. M. Lewis, ‘Co. Judge, Montgomery Co.'</p> <p>Which the said J. M. Lewis then and there signed and delivered to the said Wiley Scott, believing that said false, fraudulent and deceitful written petition or request, then and there produced and presented to him by the said Wiley Scott, was a genuine and bona fide request and petition of the aforesaid trustees of the said Hartley Free School Community in compliance therewith, and he would not then and there have signed and delivered to the said Wiley Scott said order if he had not then and there believed that the said false, fraudulent and deceitful request or petition was the bona fide request or petition of the trustees of said community, and that the false, fraudulent and deceitful representations then and there made to him by the said Wiley Scott were true; which said order is an instrument in writing conveying and securing a valuable right of the value of sixty-one dollars and forty cents, which he, the said Wiley Scott, then and there so unlawfully and fraudulently acquired, with the intent to appropriate the same to the use and benefit of him, the said Wiley Scott, and with the wilful design to cause an injury to the said Hartley School Community Ho. 70 aforesaid; and the grand jury aforesaid, upon their oaths aforesaid, do say and present in said court that the said Wiley Scott, at the time and place aforesaid, and in the manner and by the means aforesaid, did commit the offense of swindling, contrary to the statute in such cases made and provided, and against the peace and dignity of the State.” The trial -of the defendant resulted in his conviction, and his punishment was assessed at a term of two years in the penitentiary.</p> <p>The State introduced in evidence the “request,” or “petition,” as it is designated and set out in the indictment, and the order of the county judge, as the same appears transcribed in the indictment, and then proved by the trustees of the Hartley school community, viz.: Sims, Hubert and Thompson, that neither or them signed the same, nor authorized any person to sign the same for them.</p> <p>Ex-County Judge Lewis was next introduced as a witness by the State. He testified, in substance, that the body of the “petition,” or request, as appears by the handwriting, was written by him. He did not know who signed the names of Sims, Hubert and Thompson to the same. The witness also wrote the order on the county treasurer, as the same appears in the indictment. He customarily wrote such petitions for the negro trustees of negro school communities, or the patrons thereof, and when properly signed or authenticated by the trustees, or he was satisfied of their genuineness, he drew his official orders on the same. He remembered that defendant afterwards presented him the petition, and while he did not think he would have drawn the check on it if not signed, he was now unable to say that the purported signatures of the trustees were then on it. It was, in fact, as probable that they were not as that they were. He could not now say what, if any, representations were made to him by defendant about those signatures, or whether he was induced by defendant’s representations to issue the check or order. He would not, however, have issued it if he was not satisfied in nis own mind that the money was wanted by the trustees for the purpose stated in the petition.</p> <p>It was further proved that the defendant sold the order to one Caldwell, and that the money called for in it was paid to Caldwell by the county treasurer. The defense offered no evidence.</p>

<p>Appeal from the county court of Jackson, Tried below before the Hon. J„ S. McHutt, County Judge.</p> <p>This conviction was for malicious prosecution, and the penalty assessed against the appellant was a fine of one hundred dollars. The opinion sets out the charging part of the information.</p> <p>The testimony shows that the prosecuting witness, Tom Kelley, lived with his father in a house and on land rented from the defendant; that defendant and Tom Kelley mutually disliked each other, and had frequent quarrels about trivial matters; that Tom Kelley’s father was prohibited, by written contract, from turning live stock into the pasture of the defendant. One Tatum went home with Tom Kelley one night, and, after removing the saddle from his horse, staked him in defendant’s pasture, Tom Kelley going with him when he did so. According to Tom Kelley, Tatum staked his horse in the pasture without the consent or suggestion of him, Tom Kelley, and likewise without any protest from him. For the staking of that horse in the pasture by Tatum, Tom Kelley was prosecuted by defendant. . According to Tatum he staked the horse in the pasture after Tom Kelley said something about it being dangerous to stake him outside. On the next morning defendant asked him who staked the horse in the pasture. He replid that he did, against his judgment, and that Tom Kelley had nothing to do with it; that ho was alone responsible. Defendant replied that if witness staked the horse in the pasture it was all right, but that if Tom Kelley did, it was not. The justice of the peace testified that defendant prosecuted Tom Kelley before him for staking a horse in his pasture, and that he dismissed the prosecution because the evidence did not support the charge.</p>

<p>Appeal from the District Court of Falls. Tried below before the Hon. Eugene Williams.</p> <p>The death penalty was assessed against the appellant upon his conviction in the first degree for the murder of Addison Washington, in Falls county, Texas, on the twenty-sixth day of September, 1887.</p> <p>Minerva Huddleston, the mother of the deceased, was the first witness for the State. She testified that the deceased was killed at his home on the Battle farm, on the east bank of the Brazos river, in Falls county, Texas, on the twenty-sixth day of September, 1887. Deceased’s family at that time consisted of his wife, Sarah, whom he married in the preceding June, his infant daughter by a former wife, and Willie Bibb, a youth ten or eleven years old. The witness had lived with deceased since his marriage until two or three weeks prior to his death. Sarah Washington, previous to her marriage with deceased, had lived in adultery with the defendant. Deceased and- Sarah lived contentedly as man and wife, having, so far as witness ever discovered, no trouble other than occasional conjugal spats that are inseparable from the married state. A few days before the witness left the deceased’s house, Sarah went to Hickerson’s farm, where the defendant was at work, and remained there all evening. Deceased was not at home on that day.</p> <p>Willie Bibb testified, for the State, that he was living with the deceased at the time he was shot and killed. The fatal shot was fired into the house through a window on the east end of the house and took effect in the back of the deceased, who was sitting at the supper table, eating, with his back toward the said window. It was then about dusk or “first dark.” Just before sundown the witness and the deceased went to the river, fishing, but remained only a short time. They merely baited their hooks and set them out in the river, and then returned to the house, each with a “turn” of wood. They found Sarah Washington on the bed, complaining of being sick. Deceased made a fire, cooked supper, put it on a table in the corner of the room, sat down at the table, with his back to the east window, and began to eat, when a shot was fired into the room through the said window. Deceased fell back, but not out of the chair, uttered a single cry—“Oh”—and expired. The shot frightened and confused Sarah Washington and witness, who, after a few moments of inaction, fled from the house through the south door, and over a little path around the corner of the house to the house of Mr. Henry Hickerson. As the witness passed the corner of the house, in the wake of Sarah, he saw a man, whom he took to be the defendant, running from the vicinity of the house toward the slough, and over the trail that crossed the slough just back or north of the house. That man, who had a gun in his hands, fell into the slough, and used his gun in getting up.</p> <p>Continuing his testimony, this witness stated that he knew the defendant well, having lived with him when he and Sarah Washington lived together as man and wife. The defendant was crippled in his left foot and limped in walking or running. He owned a musket gun when the witness lived with him A short while before he and the deceased went fishing on the fatal evening, the witness went to the point in the rear of the house near where the slough empties into the river, to dig bait, and while digging bait he saw the defendant squatted behind a “clump” of willow bushes that had grown up around a stump. He then had a gun in his hands. He was between twenty and thirty steps distant from the witness, but did not speak to him. When the witness went back t o the house a few minutes later he told his aunt, Sarah Washington, about seeing defendant behind the stump with a gun in his hands, and the said Sarah told him that if he told anybody about it she would whip him. As a consequence, being afraid of his aunt Sarah, he did not tell the deceased about seeing defendant behind the stump. The killing occurred on Monday night. On the previous Sunday the witness visited the Rickelman farm, and there met the defendant. When he started home defendant stopped him and told him to tell Sarah to bake him a cake, and that he would come to her house after it on the first rainy day or night. The witness delivered the message. The day of the killing was the first rainy day that followed. Witness frequently heard the deceased and Sarah quarreling about the defendant.</p> <p>On his cross examination, the witness stated that deputy sheriff John T. Barlow came to the house of the deceased on the morning after the tragedy and made an examination of the premises and vicinity. Mr. Barlow asked witness if he knew who killed Addison Washington, and witness told him that he did not; to which Mr. Barlow replied that he believed the witness did know; cursed and swore at witness, and finally told him that if he did not tell who did the killing, a mob would come and hang witness; but that if witness would tell, he, Barlow, would see that witness was not hurt. The witness became frightened and told Barlow the facts to which he has testified on this trial. Re-examined, the witness said that a few days after the killing of deceased, he went to the place of the deceased with justice of the peace Elam, and pointed out to him the place where he dug the fish bait, and the place where he saw the defendant squatted behind the stump. After telling Barlow what he knew about the killing, the witness told him that he was afraid to stay in the bottom among the negroes, and asked to be placed in the care of the whites pending the trial of the defendant. At his request he was then placed in charge of Mr. John Stuart, whom hé had known at Hearne. He remained with Mr. Stuart until the former trial of defendant, since when he had lived with Sam Patillo, who was the husband of one of his aunts. The witness was afraid, of his aunt Sarah Washington, and refused to testify on the examining trial until she was removed from the court room.</p> <p>John T. Barlow testified, for the State, that he was a deputy sheriff of Falls county at the time Addison Washington was killed. He went to the place of the killing—Washington’s house—early on the morning after the assassination, arriving before sundown. He found the dead body of Addison Washington sitting in a chair at a table on which were several plates of food, cups and saucers, etc. Saw ten or fifteen slugs and buckshot had penetrated the back and shoulders of deceased. Witness extracted one slug and one buckshot from the body. The witness then made a careful examination of the premises and vicinity. At a point in a slough, just north of the house, the witness discovered a stump surrounded by willow brush, behind which some person had sat. A person sitting behind that stump could not be seen from deceased’s house. Hear that stump the witness found the tracks of a man and woman. The woman’s track led from the house to the stump. Witness trailed the man’s track from the stump, along the bank of the slough, to the north side of the house, and thence to the east window of the house, through which it was said the fatal shot was fired. That window was an ordinary glass window from which one of the panes had been broken. A piece of plank was nailed over the broken pane. It did not entirely close it, but left an open space wide enough to admit the insertion of the muzzle of a single barreled gun, but not of a double barreled gun. There was no powder burn on the sides of the said crack or open space. From the window the witne-'s trailed the said track over the trail to the crossing of the slough, where the ground showed that the man had fallen. At this same place the witness found the unmistakeable impression of the muzzle of a single barreled gun. It had rained on the previous day, leaving in the slough a bed of red colored mud, but no water. The track showed to have been made by a man crippled in the left foot or leg, the left stride, although the man was running, being much shorter than the right stride, and the ball only of the left foot making a clear impression, while the impression of the right foot was perfect, clear and distinct. Witness trailed that track a considerable distance up the Brazos bottom, and then, leaving others to follow it in all of its meanderings, he went to the house of Tennessee Stephenson, where he secured the defendant’s single barreled musket. He soon afterwards found and arrested the defendant in a house a few hundred yards distant from Tennessee’s house.</p> <p>While following the trail of the man, between the place of the homicide and the house where he ■ arrested defendant, the witness found a point where, as shown on the ground by the impression of the butt of the gun, the tracks and fragments of newspaper scattered about, the party stopped and loaded the gun. The trigger guard, barrel and butt of the defendant’s gun showed distinct mud signs when witness secured it, and it showed plainly that it had been grasped in muddy hands, the skin creases of the hand even showing. The witness took that gun to Jack Brewer, the gunsmith, and had the load withdrawn. Brewer first drew from the gun a piece of newspaper wadding, then buckshot, then some powder, and from beneath this powder he took other powder mixed with mud. The substance nearest the tube was almost wholly moist or wet mud, similar in color to the mud in the slough near the deceased’s house where the man fell down. The gun in its then condition could not have been discharged. There was a fresh “hat” or musket cap on the tube, and the appearance of the barrel at the muzzle indicated to the witness, who was a fire arm expert, that the gun had been recently discharged. The high weeds between the- house of the deceased and that wherein the defendant was arrested, along the trail pursued by the fleeing man, were wet from the recent rain, and could not have been passed through without wetting the traveler.</p> <p>After arresting the defendant the witness returned to the house of the deceased, where he met Willie Bibb, a negro boy about ten or eleven years old. He asked Willie who killed Addison Washington. He replied that he did not know. The witness told him that he was satisfied he did know; that he, witness, had found Ms, Willie’s, track at a place in the slotigh near the stump behind which the party had sat, and where evidently he, Willie, had been digging fish bait; that he, Willie, would not be hurt if he would tell what he knew about the killing, but that he, witness, would hang him if he did not tell who did the killing and who made the tracks behind the stump. Thereupon Willie Bibb told the witness substantially the same facts he has testified to on this trial. Willie Bibb then told the witness that, having disclosed what he knew, he was afraid to remain in the bottom with the negroes, and asked to be placed in the care of the whites, and at his further request he was placed with John W. Stuart. He afterwards stayed in turn with Justice of the Peace Elam, J„ B. Bates and Sam Patillo’s wife. The witness observed on the examining trial that Willie Bibb would weep, in evident fright, instead of replying to questions, until Sarah Washington was removed from the court ro./m, when he related in detail the narrative he has related on this trial. Witness arrested Sarah Washington immediately after he secured the statement of Willie Bibb, on the morning after the murder, and sent her to the Marlin jail in the custody of Burrell Young and Tom Sanders. It was before the arrest of Sarah Washington that witness found the woman’s track near the stump mentioned. He then got a new pair of woman’s shoes from deceased’s house and applied them to the said tracks (which appeared to he fresh). The shoes and the tracks were about the same in length, but otherwise the fit was not perfect. He then returned to the house and got an old pair of womm’s shoes, the sole of one of which was whip-sewed to the upper with a piece of fishing line or small wire—witness did not remember which. He applied those shoes to the said tracks and found them to correspond perfectly, the tracks even showing the impression of the fish line or wire. That shoe w.:s slightly run down at the heel, which showed distinctly in the track. Witness asked Sarah Washington who killed Addison, and she denied that she knew anything about the killing. The shot taken from the body of the deceased were larger than the shot extracted from the gun.</p> <p>Tennessee Stephenson testified, for the State, that she lived on the Parker place about two miles from Marlin. The defendant boarded with the witness in September, 1887, occupying the small shed room which adjoined witness's room. A drizzling rain fell on the morning of September 2G, 1887, and early on that morning the witness’s son, Hiram Robinson, and the defendant left witness’s house to go deer hunting. Her said son did not return home until the next day. The witness remained at home all day on the said September 36, 1887, and knew that defendant did not come back to the house on that day. Dave Berry visited witness that night and remained with her until just before the down train from Waco signalled Marlin, which was at half past ten o’clock. The witness retired immediately after Berry left and went to sleep. She had been asleep some time—she did not know how long—when the defendant awakened her to let him in. She opened the door and he entered with his gun in his hands. After he got to his room he asked witness for some dry clothes, remarking that those he had on were wet. The witness gave him his dry clothes and went to sleep. Defendant was not married. Witness was married, but did not know the whereabouts of her husband.</p> <p>Hiram Robinson testified, for the State, that he and the defendant left Tennessee Stephenson’s house on the morning of September 36, 1887, to go hunting. Defendant did not have his gun at the time, but told witness he had it in Hamp Chisholm’s field. He had ammunition, consisting of powder, large buck shot and “hat-caps” for a musket, and while at the house, the witness saw him with some slugs. Defendant got his musket from under some mulberry brush in Chisholm’s field. He then told witness to go to the point where some parties were blowing hunting horns, and ascertain if they could join that hunting party, and to meet him at the foot log crossing of the slough. Witness went to the parties blowing the horns, and found that they were not going hunting. He and a boy named Miles then went to the foot log, and not finding defendant, they went, hunting. Witness spent that night with Miles and returned home next day.</p> <p>Deputy sheriff Charles A. Norwood testified, for the State, substantially as did the witness Barlow as to the indications, etc., on the ground about the house of the deceased, as seen by him on the morning after the killing. He measured the track going from the east window, and afterwards applied that measure to the track of the defendant made on the jail floor. The two tracks measured exactly the same. Defendant was lame in the left foot, only the ball of that foot touching when he walked. Defendant’s gun was examined by witness on the morning after the killing. It had the appearance of having been recently discharged.</p> <p>James Tolliver testified, for the State, that less than-two weeks before the killing of deceased, he met the defendant in Marlin, and, to tease him, asked him: “How are you and Addison Washington getting along since he married your gal?” He replied: “Bad; I have heard that Addison has been threatening me. If he crosses my path, I will set him up in less than two weeks.”</p> <p>Doctor George J. Elam, justice of the peace of the precinct in Falls county in which the murder of Washington occurred, was the next witness for the State. His testimony relating to the dead body, the tracks, etc., about and in the vicinity of the deceased’s house, as viewed by him on the day after the killing of Washington, was substantially the same as that of Barlow. He did not, however, find the lame foot track nearer the east window than six or eight feet, but a great many people had been on the ground before he arrived He described the trail froim the house substantially as Barlow, including the indications on the ground where the refugee stopped and loaded his gun. This witness observed that the tracks of the man and woman at the willow clump were about five feet apart, and, though fresh, it looked to him like the track of the woman was made before the rain, and that of the man after the rain of the night before. According to this witness, a person standing at the east end of the deceased’s house could not have seen the fall of a person in the slough at the point where the fleeing man fell, nor from any point in the path that led to Hickerson’s house. Witness followed the lame foot track to the turnpike road within four or five hundred yards of Tennessee Stephenson’s house.</p> <p>On cross examination this witness testified that the boy Willie Bibb was examined before him on the inquest upon the body of deceased. He first testified that he knew nothing about the killing. He was apparently watched by Sarah Washington, and as often as he caught her eye he wept and showed embarrassment. Witness then had Sarah removed from the court room, when Willie Bibb told substantially the same story he has testified to on this trial.</p> <p>The State closed.</p> <p>Fed Carter was the first witness for the defense. He testified, in substance that, en route to his home, over the turnpike road, he passed Tennessee Stephenson’s house about dark on the evening of the fatal day—that being the hour the fatal shot was fired, as fixed by the State’s witnesses. When he got immediately opposite Tennessee’s house, some person uttered a loud halloo, and the witness felt satisfied that he recognized in that halloo the voice of the defendant; and so informed Ab. Bogin, on the next morning when Bogin told him of the arrest of defendant. Tennessee Stephenson’s said house was between four and five miles distant from the house of the deceased. On his cross examination this witness admitted that lie drank a great deal in Marlin on the said twenty-sixth day of September, and, as a matter of fact, had a very imperfect recollection of the route he traveled home on that night, and a very indistinct recollection of what he told Bogin on the next day. The witness did not see the defendant on the fatal evening. Bogin corroborated Carter as to the statement made to him by Carter on the morning after the killing.</p> <p>Sarah Washington, the widow of -the deceased, testified, for the defense, that she was at home when the deceased was killed, on September 2G, 188?. She had been sick all day. Deceased cooked his supper himself, placed it on the table, and sat down to the table, with his back toward the east windo'w. About that time the witness went to the fire place to get, for the deceased, some potatoes she had put in the ashes to roast. The shot was fired into the house through the east window. The shot startled the witness, who did not at first understand what had occurred. She asked deceased: “What did you do that for?” and then realized that he had been shot and was dead. She then fled from the house, followed by Willie Bibb, passed through the south door, around the east corner of the house, and over a path through the turnip patch to Hickerson’s house. It was then about dark. Witness did not see anybody running from the house toward the slough, or in any other direction. She did not see the defendant at any time on the fatal day. Willie Bibb did not tell her afterwards that he saw defendant running from the house towards the slough, after he, Bibb, ran out of the house. Willie did not tell the witness on that evening that he had seen defendant hiding behind a willow stump with his gun, and she did not threaten to whip Willie if he told it. Willie Bibb did not tell her that he saw the defendant on Bickelman’s farm on the preceding Sunday, and that defendant charged him to tell her to make him, defendant,. a cake, and that he would come for it the next rainy day, or night The witness protested that she did not know who killed déceased, and declared that if she did know who the murderer was she would denounce him.</p> <p>Cross examined, the witness said that for several years prior to her marriage to the deceased she lived with defendant as Ms wife. She married deceased in June, 1887, having left defendant about three weeks before that time. The defendant begged witness not to leave him and marry deceased, and became angry with deceased about witness. Deceased often quarreled with witness about defendant. It was the witness’s shoe that Mr. Barlow took from the house and applied to the track near the stump. The witness had not been about that stump on that day, and could not explain how her track came to be there. Witness went to town after her arrest, in the custody of Burrell Toung and Tom Sanders. She had no recollection, of telling Sanders, on the way to town, that defendant killed deceased. She had no recollection of telling Sanders that Willie Bibb delivered to her a message from defendant to bake him a cake, and that he, defendant, would call for it on the first rainy day or night. Witness did not know who killed deceased, but, being asked: “Who do you believe killed Addison Washington?’ she replied: “I think defendant killed him ”</p> <p>B„ Ledbetter testified, for the defense, that, while confined in jail with deceased, some time prior to the latter’s death, h© heard the deceased say that somebody had threatened his life, and that he was afraid of being killed. At another time he heard Mr. Tom Battle tell deceased to be cautious or he would be killed.</p> <p>E. Anderson and William Watson testified that they were acquainted with the defendant, and knew his reputation as a peaceable, law abiding citizen, and that it was good. The defense closed.</p> <p>Tom Sanders testified, for the State, in rebuttal, that he knew the defendant, who was well known throughout the neighborhood by his nickname “ Spider. Just before the arrest of Sarah Washington, the witness asked her who killed Addison Washington, and she replied that she did not know. She was afterwards arrested, and was taken to jail by witness and Mr. Toung. On the way to town, she spoke of being a member of the church, and addressed witness as “Brother Sanders." Witness replied: “If you are a member of the church you ought to tell the truth about this; and if you will tell the truth, Mr. Rice (the prosecuting attorney) will turn you loose, and n'ot put you in jail.” She then said that “Spider” killed the deceased. Witness asked her who? and she replied: “Louis Hawkins.” In answer to another question by witness, she said that Willie Bibb told her on the previous Sunday that he saw defendant at Rickelman’s farm, and that defendant charged him to tell her to bake him, defendant, a cake, and that he would come for it on the first ensuing rainy day or night. Witness then called Mr. Barlow, who was riding along some distance behind, and when he came up Sarah repeated to him what she had said to witness. Just as she was being placed in jail Sarah said that, contrary to witness’s assurance, they were going to put her in jail, and that what she had said to witness on the road she would retract because it was a lie. • She had just then passed through a large crowd of negroes.</p> <p>Recalled, later in the trial, this witness stated that he did not use any violence or threats to extort the said statements from Sarah Washington.</p> <p>John Barlow was then recalled by the State, and corroborated Sanders as to the declarations of Sarah Washington on the road to town..</p> <p>Sarah Washington, recalled, by the defense, admitted that she made the statements imputed to her by Sanders and Barlow, on the way to jail, but declared that she made them because Sanders told her that Barlow was behind with a rope, and that a mob would be organized and hang her if she did not admit that defendant killed deceased. She thereupon made that and every other declaration Sanders and Barlow required of her, and would have made any other dictated by them, as she was afraid of mob violence. Those statements made by her while in arrest were false, and her present testimony true.</p> <p>William Shelton testified that he examined the defendant’s gun.as soon as it and the defendant were brought to jail on the morning after the killing, and before the load was drawn out. The inside of the barrel was rusty, and the witness, who had a great deal of experience with fire arms in the Confederate army, did not think that gun had been recently discharged.</p>

<p>Murder—Evidence—Pact Case.—See the statement of the ease for evidence objected to by a defendant on trial for murder, held, in view of the other proof in the case, to have been properly admitted; and note that the evidence as a whole is held amply sufficient to support a conviction for murder in the second degree.</p>

<p>Appeal from the Criminal District Court of Galveston. Tried below before the Hon. 0. L. Cleveland.</p> <p>This conviction was for exhibiting a gaming table, and the penalty assessed against the appellant was a fine of twenty-five dollars, and confinement in the county jail for ten days.</p> <p>The opinion sets out the substance of the proof for the State, except that the testimony inculpated the defendant as the man who held the money bet by the crap thowers, and received the table fees of five cents for every two throws.</p> <p>Charles Jessup testified, for the defense, that he was the exclusive owner and proprietor of the saloon in which the game was played, and of the table on which it was played. Defendant was his employe, had no interest whatever in the saloon or table, and, in receiving the table fees for the game played, acted under and by the orders of the witness, and for the wit= ness.</p>

Tried below before the Hon. George McCormick. The conviction in this case was for the theft of a horse, and the penalty assessed against the appellant was a term of five years in the penitentiary. B. S. Carnes testified that his certain horse, branded H4 connected, was stolen from his stable in the town of Stockdale, on. the night of May 24, 1888, and he had never seen that animal since.

<p>Appeal from the District Court of Williamson. Tried below before the Hon. W. M. Key.</p> <p>The conviction in this case was for an assault with intent, by force, to rape one Sallie Colvin, in Williamson county, Texas, on the twenty-third day of November, 1888. The penalty assessed against the appellant was a term of four years in the penitentiary.</p> <p>Sarah Colvin, the alleged injured party, was the first witness introduced by "the State. She testified that she was eleven years old, and lived in the town of Georgetown, Williamson county, Texas. On the day alleged in the indictment, the witness went to a point in the brush near Georgetown, frequented by negroes for the purpose of answering calls of nature. The witness went there for that purpose. Defendant soon came to where she was and said to her: “Come and do it with me," Witness replied: “No, I will not; my mother does not allow me to do that." She then started home, when the defendant overtook, threw her down, pulled up her clothes, tore off her drawers, and by force, without her consent and against her will, had carnal knowledge of her, by inserting his male member into her sexual organ. During the period of this enforced act of copulation, the witness was held down by the defendant, who likewise kept one hand pressed over her mouth. She struggled with all of her strength, but was unable to push the defendant off, or to utter a cry for help. He remained on top of witness, moving his male member to and fro in her sexual organ, until witness’s cousin, Dora Cook, suddenly appeared on the scene, when he jumped off and fled.</p> <p>The cross examination of this witness, which was close and searching, was directed to the development of the issue raised by the defense of the witness’s consent to the carnal act. It disclosed that the defendant was a local preacher of the Methodist Episcopal Church, and that he lived in a house near the house of the witness’s mother, with whom the witness lived. The bushes to which the witness went to answer a call of nature were nearer the defendant’s house than to the witness’s mother’s house, and in going to the said bushes from the last named house one would necessarily pass near the defendant’s house. There were other bushes in the opposite direction from the witness’s mother’s house, but they were somewhat further off than the bushes to which the witness went. Both of said places were customarily used by the colored people as privies. On the day of but before the outrage, the witness went to the house of the defendant in search of her mother. The defendant was at home when witness arrived at his house, but not when she left it. He came to her in the bushes soon afterwards. The witness was on the outside of Lee Taylor’s fence when the defendant asked her to copulate with him She replied as stated in her direct examination, and crawled through the fence into Mr. Taylor’s lot, and was stooping down picking up acorns when the defendant seized and threw her down and had forcible connection with her. She neither ran nor hallooed while the defendant, in a half run, was pursuing her, for the reason that she did not believe he would hurt her. From the point where he solicted the carnal favor of the witness to the point where he followed her and helped himself, the distance was about one hundred yards. When he seized her he put his left hand over her mouth, threw her down, and with his right hand pulled her legs apart, unbuttoned her drawers and tore them off one of her legs, took out his male member while on his knees between her legs, lay down on the witness, with his breast against hers, inserted his penis into her private organ, and made two or three excentric motions with his buttocks before he succeeded in introducing his penis into witness’s private organ. He then continued the copulative process until Dora Cook intruded upon the scene, when he suddenly released the witness and decamped. He was on the witness but a short time As soon as she was released the witness raised up on her elbow, and saw Dora Cook through an opening in the fence ¡Neither the witne-s nor Dora spoke to th° other, nor did Dora, ero- s the fence into the lot where the outrage occurred. The drawers worn by the witness were button drawers. Defendant first undid the buttons, and then tore the drawers off one leg. The place of the outrage was in the northwest corner of Mr. Taylor’s lot, under a hill, about twenty-five steps from Taylor’s house. The houses of Mr. Williams and Mr. Roberts were not a great distance from the place of the outrage. The witness reiterated that the copulative act was committed upon her by the defendant by force, without her consent, against her will, and despite such resistance as she was able to make. Asked by the defendant’s counsel if she enjoyed the sexual act forced upon her, she replied that she did not, and, in response to the further inquiry of persistent counsel as to why she did not like it, she replied laconically: "Because I was mad.”</p> <p>Dora Cook, the cousin of the prosecutrix, testified, for the State, that on the day alleged in the indictment she went to the bushes in the rear of Mr. Taylor’s lot for the purpose of responding to a call of nature. As she approached the northwest corner of Taylor’s lot from the outside she saw the defendant on top of Sallie Colvin, "shuffling up and down” on Sallie, who was lying back down on the ground. His breast lay on Sallie’s breast, and his face was held close to hers. As soon as he discovered the witness, the defendant jumped up and ran off, Sallie raised her head to rest on one elbow, and looked through the fence at witness. She did not speak to witness, nor did witness speak to her. Witness went immediately to Sallie’s mother, reported what she had seen, and within a few minutes a complaint was lodged against defendant and he was arrested. Taylor’s house stood in the southeast corner of his lot, diagonally across from the corner in which witness discovered defendant on Sallie Colvin, The said house was on a hill, and the said northwest corner of the lot was under the hill, some trees and brush intervening between the two points,</p> <p>Bettie Colvin, the mother of the prosecutrix, testified, for the-State, that immediately on her return from the brush Dora Cook told her of the discovery by her of the defendant on witness’s eleven year old daughter Sallie. Witness started at once to the place indicated, and met her said daughter coming toward home. Her daughter then told her about defendant’s outrage upon her, and witness at once took the child to town and had a-complaint lodged against defendant. .She then examined the girl’s underclothing, drawers and private parts. The drawers, which were not button drawers, and did not open in front, were ripped open between the legs at the place where they covered the private organ. They were not torn when Sallie put them on, the Sunday' previous. Witness could not. swear that defendant tore those drawers, but they were torn. Witness observed no blood on Sallie’s private parts.</p> <p>County Attorney R. A. John testified, for the State, that the corner of the feuce in which Sallie Colvin claimed she was assaulted by the defendant was about two hundred and seventy feet distant from Taylor’s house, and a little further from Roberts’s house. A few trees, brush and undergrowth intervened between the said houses and the said corner, and, while witness would not swear positively that two persons copulating in said corner could not be seen from said houses, he did not think they could.</p> <p>Doctor Foster testified, for the defense, that he examined the sexual organ of the girl Sallie Colvin about an hour after the outrage was alleged to have been committed. He found the girl’s drawers tom, but there was nothing about the appearance of the sexual organ to indicate recent penetration. As a matter of fact her sexual organ had not been penetrated. It could not have been penetrated by the penis of such a man as the defendant without retaining indubitable evidence of súch penetration.</p> <p>Henry Smith and Monroe Sansom testified, for the defense, that they were familiar with the ground between the place of the alleged outrage and the houses of Taylor and Roberts, and in their opinion two persons copulating in the northwest corner of Taylor’s lot could be seen from either house. It was possible, however, that, while lying on the ground, if copulating in that position, they could not be seen from Taylor’s house. The opinion sets out the substance of the newly discovered evidence upon which the motion for new trial was based.</p>

Tried below before the Hon. W. M. Key. Upon a complaint filed by this defendant, charging that, in Williamson county, Texas, on the sixteenth day of December, .1888, one Sallie Brown did commit an assault and battery upon her by striking her with a rock, and did use abusive language to her, calculated to cause a breach of the peace, by calling her a bitch,” a “whore” and a “liar,” the said Sallie Brown was tried in the justice’s court of precinct number one of Williamson…

<p>Appeal from the District Court of Wilson. Tried below before the Hon. George McCormick.</p> <p>The conviction in this case was for the theft of seven head of cattle, the property of W. R Park, in Wilson county, Texas, on the first day of February, 1887. The penalty assessed against the appellant was a term of two years in the penitentiary.</p> <p>District Attorney Spooner testified, for the State, in substance, that, in November, 1887, he procured the arrest of defendant •and of George Brown, Will Mathews and Will Chaney, on a charge of horse and cattle theft. Pending the examining trial in Wilson county, John McDaniel, the uncle of defendant, proposed to the witness that if he would agree to exempt the defendant from any prosecution for theft of horses or cattle about which he would testify, he, defendant, would turn State’s evidence, and testify against the other parties charged in this case, and also in other theft cases. The witness told McDaniel that he would look into the matter and determine whether he would accept defendant as State’s evidence. After the said examining trial, McDaniel renewed the proposition on behalf of defendant. He renewed it again in December when the witness, having satisfied himself that without more testimony than he had he could not sustain the prosecutions against the parties charged, and against one Barber and one Blain, who were also implicated in that and other thefts, agreed to confer with defendant, stipulating that he would make no agreement until he had heard the proposed evidence of the defendant, and satisfied himself that, wherein it was material, it could be corroborated. Accordingly McDaniel arranged a meeting between witness. Park and defendant. Eeferring to McDaniel’s proposition, witness stated to defendant distinctly that if he, defendant, could and would give material evidence for the State, on the trials of the other parties named, and such as could be corroborated,- and would take the stand, fearlessly, and “come up like a man,” and give that testimony fully, circumstantially, and truthfully, he, witness, would accept him as State’s evidence, and would not prosecute him for complicity in any of the said offenses; but that if he, the defendant, did not comply with those conditions literally and to the fullest extent, he, witness, would retire from the agreement and withdraw the exemption thus promised. The defendant accepted the conditions, and, in the presence of Park, made the following statement to the witness, which was then and there reduced to writing, and afterwards was read to defendant and pronounced by him to be correct. The said writing reads as follows:</p> <p>“George Neeley says that he and George Brown and Jodie Blain took five head of W. E. Park’s cattle out of the ‘company’ pasture, in Wilson county, about February, 1887. These cattle were branded CUT on hip, and two head in UFO on the ribs; at same time took seven head of W. D. Eunnels’s cattle, branded thus (reversed EHD connected) on hip; carried them to Barber’s pasture, near Gonzales, Texas. These cattle were carried in a bunch of shipping cattle for J. D. Houston, in February. Jeff Griffin, George Simons and Bill Eogers assisted in taking the cattle over, and we met Mat Patton near Talley’s. Patton turned out of the road to the left, and stood until the cattle passed by. These cattle were cut out at or near the bridge, known as the Jobe bridge, where cattle go under it into the river. Clarke Barber and George Brown took the stolen cattle on to his, Barber’s, pasture. Hiram Stevenson came out to us and helped to drive the shipping cattle to the railroad pens.”</p> <p>After securing this written statement the witness had the parties named in it, except Blain, Barber and Brown, taken before the grand juries of Wilson and Gonzales counties, and secured the indictment of Blain, Barber, Brown, Chaney and Mathews—some in Wilson and some in Gonzales county. He then had defendant attached as a witness for the State against Blain and Brown. Defendant was in Gonzales when the term of the court was held, at which, under his agreement, he was to testify for the State, but got to drinking, and, notwithstanding the protest of the witness, continued to drink and to associate with the parties against whom he was to testify, until the first case was called, when he left town. Witness had him brought back by a deputy sheriff, but when he was placed on the stand he was so drunk he could testify to nothing, and the party on trial was acquitted. When, at the ensuing term of the Wilson county district court, the witness took up the other cases in which defendant was to testify, he ascertained that defendant, in attempting to leave the country, had been shot by officers. Being unable to get him to comply with his agreement, the witness had him indicted in this case.</p> <p>W. B„ Park, for the State, testified to the theft of the seven head of cattle belonging to him, from the “company” pasture, in Wilson county, in February, 1887, which cattle were branded and described as stated in defendant’s written confession in evidence. The witness was present when the agreement between District Attorney Spooner and the defendant was entered into. He corroborated the testimony of Spooner as to the details of the conference in which that agreement was entered into, and identified the writing in evidence as the written statement of the defendant made on that occasion. He further stated that he attended the term of the district court of Gonzales county referred to by Spooner in his evidence, and corroborated Spooner as to the conduct and actions of the defendant at that time.</p> <p>Hi ram Stevenson (at the time referred to in defendant’s conr fession, a stock drover in the employ of J. D. Houston) and Mat Patton, introduced as witnesses for the State, corroborated, the confession of defendant so far as it referred to them.</p>

Tried below before the Hon. C. L. Cleveland. The conviction in this case was for an assault with intent t© rape Katie Ford, in Galveston county, Texas, on the first day of October, 1888. A term of seven years in the penitentiary was the penalty assessed against the appellant. Katie Ford was the first witness for the State.

Tried below before L. J. Farrar, Esq., Special Judge. The appellant rendered an account against the county of Havarro for services performed by him as a teacher of one of the public schools of that county, and made an affidavit before the county judge verifying the same. The said affidavit is the matter assigned as perjury.

Tried below before the Hon. Gustave Cook. All material facts appear in the opinion. The penalty assessed was a fine of one hundred dollars.

<p>1. Practice—Change of Vende.— The trial court, of its own motion, changed the venue from V. county, in which the indictment was presented, to B. county, whereupon the defendant, in the district court of V. county, moved to vacate the said order, and requested the venue to he changed to another than D. county, upon the ground that an influential combination, etc., existed against him in B. county. The court overruling the motion and denying the request, the defendant excepted. Held that the ruling of the court was not error. The remedy of the defendant was in the district court of B. county, from which, upon a showing of sufficient cause, he would have been entitled to a change of the venue.</p> <p>3, Same—Evidence to Sustain Reputation—Predicate.—The State introduced a witness who testified to a confession made by the accused, and subsequently introduced witnesses to support the reputation for truth and veracity of the witness by whom the confession was proved. Those witnesses testified that for several years preceding the removal of the said witness (about eighteen months before the trial) they lived in the same neighborhood with him. The defense objected that this evidence did not establish the necessary predicate for the supporting testimony. But held that the predicate was sufficient.</p> <p>S. Same—Impeaching Testimony—Charge of the Court. —It is only under extraordinary or peculiar circumstances that it is proper for the trial court to instruct the jury as to the law governing impeaching testimony, and the failure of the court to do so in this case was not error.</p> <p>4. Same. — A witness for the defense testified that he saw the killing; that one Owens and not defendant shot and killed the deceased, and that the defendant was not present at the time of the killing. The State produced several witnesses who testified that the reputation of the said defense witness for truth and veracity was infamous. To support the credibility of its said witness, the defense offered tq prove that he testified to the same facts on previous trials involving the same subject matter. Held, that the rejection of the said proposed proof was correct.</p> <p>6. Same—Reasonable Doubt.—The charge of the court on the doctrine of reasonable doubt is sufficient if it applies the said doctrine to the whole case.</p> <p>6. Same—Corroboration of Accomplice Testimony.— See the statement of the case for a charge of the court upon the law applicable to the corroboration of accomplice testimony, held sufficient.</p> <p>7. Same.—Upon the ground that it was warranted neither by the indictment nor the evidence on the trial, the defense excepted to the charge of the court to the effect that the jury might convict if they believed that Owens killed the deceased, and that defendant was present, andi knowing the unlawful intent of Owens, aided him by act or encouraged him by word or gesture in the commission of the act. Held that the legality of such charge can not be made to depend upon a corresponding allegation in the indictment, and that the evidence on the trial fairly raised the issue; wherefore the charge was correct. .</p> <p>8. Same—Accomplice Testimony.—The defense requested the following special instruction: “You are further instructed that, if you believe from the evidence that the witness Owens was testifying to save himself from punishment or moral obliquy of guilt, then his testimony can not be convicted upon, unless corroborated as the evidence of an accomplice.” Held that the court did not err in refusing the instruction.</p>

<p>1. Indictment—Grand Jury—Practice.—The defendant’s motion to set aside the indictment was based upon the statutory ground that a person not authorized by law was present when the grand jury deliberated and voted upon the accusation against him. It appears by the defendant’s bill of exceptions that the grand jury for the term was duly organized on December 8, and that it was discharged for the term on December 13; that soon afterward the court took a récess, and, upon reconvening after the recess, ordered the sheriff to reassemble the sixteen persons selected originally by the jury commissioners at the June term to serve at the said December term, viz., the twelve who had been impaneled and the four who had not. Of the sixteen thus summoned, the twelve who had, and one W., who had not, been impaneled reassembled, when one of the said twelve was excused by the court, and the said W. was placed upon the panel in his stead. The contention of the defense is that the trial court had no power to excuse the grand juror after he had been duly impaneled; that the status of the excused person as a legal grand juror was not affected by the action of the court, and that the legal effect of impaneling the substituted juror, W„ was to create an unconstitutional grand jury of thirteen persons; and that the presence in the grand jury room of the said W. was the presence of “a person not authorized by law.” Held, that the motion to set aside the indictment was properly overruled, and that the action of the court was correct, as conforming to article 391, of the Code of Oiminal Procedure, which provides as follows: “When a grand jury has been discharged by the court for the term, it may be reassembled by the court at any time during the term, and in case of failure of one or more of the members to reassemble, the court may complete the panel by impaneling other qualified persons in their stead, in accordance with the rules prescribed in this chapter for completing the grand jury in the first instance.” See the opinion in extenso for an elucidation of the question.</p> <p>S. Assault to Murder—Evidence—Intent.-^-Au assault and a specific intent to murder are two elements which must concur in order to constitute the offense of assault with intent to murder. The intent must be established as an inference of fact to the satisfaction of the jury, but the jury may draw that inference, as they draw all others, from any fact in evidence which to their minds fairly proves its existence.</p> <p>g„ Same—Presumption—Pact Case.—If the assault is voluntary, is committed with deliberate design, and with "an instrument capable of producing death, and there are no extenuating circumstances, it is an assault with intent to murder. And “whenever it appears upon a trial for assault with intent to murder that the offense would have been murder had death resulted therefrom, the person committing such assault is deemed to have done the same with that intent.” See the statement of the case for evidence held sufficient to support a eonvic- ' tion for assault with intent to murder.</p>

<p>Appeal from the District Court of Havarro. Tried below before the Hon, Rufus Hardy,</p> <p>The conviction was for an assault with intent to murder one Baylor Fauntleroy, in ¡Navarro county, Texas, on the thirteenth day of September, 1888. The penalty assessed against the appellant was a term of five years in the penitentiary.</p> <p>Baylor Fauntleroy was the first witness for the State. He testified that, in September, 1888, he was in the employ of the St. Louis, Arkansas and Texas railway as brakeman on the passenger train. When the said train arrived at the depot in Corsicana the defendant and two negro women started to board it. Witness told defendant to wait until the disembarking passengers could get off. The two negro women soon mounted to the platform of the smoking car, into which car the witness directed them to go. Defendant, who meanwhile had mounted the second step of the first class coach, and was holding to the railing, told the women to go into that, the first class car. Witness asked him: “Have you a ticket?” Defendant replied: “Is that any of your business?” Whereupon the witness struck him several blows over the head and face with his fist. While the witness was striking the defendant with his fists a police officer seized defendant, pulled him off the steps and arrested both defendant and witness. Very soon thereafter a second police officer appeared and took charge of witness, and, at witness’s request, took him across the platform to the officers of the railroad in the depot building, to enable witness to execute an appearance bond. Having arranged that matter, the witness started back to the train, and just as he stepped out of the office door to the platform the defendant struck him a blow with a knife across the side and back of the neck, inflicting a painful but not a necessarily serious wound.</p> <p>Cross examined, the witness said that it was the usual custom of railway brakemen to cary arms, but that he was unarmed when he struck defendant, except that, by accident, he had a razor in his pocket. He struck the defendant with his bare first and not with “brass knucks.” Witness was not a pugilist, but could strike a severe blow. He owned a pistol at that time, but it was in the possession of his brother at Gates-ville, who anticipated' serious trouble as the result of a “racket” in which he and witness had participated a few days before. This was the first trouble in which the witness had been involved. The knife with which the defendant struck the witness was a three bladed pocket instrument. The blade with which the witness was struck was the smaller of the two large blades, the said blade being an inch and a half or two inches long. On his re-examination the witness said that when he left the office to return to the car, after making his bond, he thought the defendant was on his way to jail with the officer who had him in arrest. After receiving the cut, the witness tried to reach the car to get a coupling pin with which to defend himself, and observed the defendant with the open knife in his hand struggling with two police officers, and trying to get to him, witness. It was the duty of the witness as brakeman to see that no person entered the car without a ticket. He did not know whether or not defendant was aware of that fact.</p> <p>City policeman Pittman, who arrested defendant while Fauntleroy was striking him, corroborated the testimony of Fauntleroy in detail, and, in addition, stated that while City Marshal Cubley had Fauntleroy in the office, making his bond, he, witness, guarded defendant at the side of the office door, and was there with him about fifteen minutes before Fauntleroy came out. Defendant cut Fauntleroy just as the latter stepped out of the office. Witness then seized him, and with the assistance of Cubley subdued and disarmed him. Upon being disarmed the defendant exclaimed: “Revenge I wanted, and revenge I have, if I die for it.”</p> <p>City Marshal Cubley testified, for the State, that he appeared upon the scene just as Pittman was dragging defendant off the oar steps. Pittman requested witness to take charge of Fauntleroy; which the witness did. After holding Fauntleroy on the platform five or six minutes, he took him into the office to make bond for his appearance before the recorder’s court. Witness produced a blank bond, which was filled out and signed and delivered to him. They were in the office five or six minutes when Fauntleroy, ahead of witness, started out of the office to the train. Just as Fauntleroy stepped out of the office the witness heard, but did not see a blow. He thereupon rushed out and found Pittman struggling with the defendant, who, with an open knife in one hand, was trying to get at Fauntleroy. Witness and Pittman finally subdued the defendant, and witness took from him a pocket knife, the open blade of which was between two and two and a half inches long.</p> <p>John Roberts testified, for the State, that he was on the platform at the time Fauntleroy was cut by defendant, but did not see the cutting. He saw Fauntleroy standing near the tram, and saw Cubley and Pittman struggling to disarm the defendant. When they secured the knife, the defendant exclaimed: ‘‘Revenge is what I wanted, and revenge is what I have, and now you can kill me if you want to!”</p> <p>The testimony of James Craft, for the State, though not as full, did not vary materially from the witness Pittman as to what occurred on the platform and at the office door at the time of the cutting. He could not repeat the exclamation made by defendant when disarmed. The State closed.</p> <p>Martha Turner, one of the negro women who were with defendant at the time of the difficulty, testified, for the defense, that when she and her companion got on the car platform, the brakeman told them to go into the smoking car. Defendant, who was then.upon the steps of the first class car, told them to go into that car. The brakeman asked defendant if he had a ticket. Defendant replied: “That is none of your business/’ whereupon the brakeman struck defendant several blows on the face and head with his fist, causing the blood to flow. Defendant and the'brakeman were then arrested. Witness saw none of the subsequent proceedings.</p> <p>Green Jamieson, one of the parties named in the defendant’s application for continuance as an absent witness, appeared and testified for the defense, substantially as did Fauntleroy, for the State, except that he did not hear the conversation between Fauntleroy and the defendant and the negro women, which preceded the difficulty.</p> <p>The application for continuance was filed January 21, 1889. For diligence it showed that affiant, on the fourth day of January, 1889, sued out subpoenas for Green Jamieson, R. Hall, J. Matilla and B. Collins, and placed the same in the hands of the sheriff for service; that up to the day of the filing of this application, he verily believed all of said witnesses resided in Navarro county, but that on this day he was informed that Hall was a resident of Dallas county, Matilla, as shown by the officer’s return, a resident of McLennan county, and Collins of Limestone county. In this connection the application prayed for attachments to Dallas, McLennan and • Limestone counties for the said witnesses. The application then stated that the affiant expected to prove by the said witnesses that, just prior to the alleged assault, he was beaten over the head most brutally and mercilessly by Fauntleroy, who in beating him used a pair of “brass knucks”; that the said beating was administered by Fauntleroy without provocation, and that the said alleged assault was committed immediately after the said beating administered by Fauntleroy, and while Fauntleroy was in an attitude to continue said beating.</p>

<p>Appeal from the District Court of Eastland. Tried below before the Hon. T. H. Conner.</p> <p>This appeal is from a second conviction for cattle theft. (See Lon Willard v. The State, 26 Texas Ct. App., 126.) Two years in the penitentiary was the penalty assessed against the appellant on this trial.</p> <p>Except Ainsworth, who was not introduced on this trial, the witnesses who testified on the former trial, and whose testimony is set out in the former report, testified to substantially the same facts on this trial. Only the additional testimony adduced on this trial is set out in this report.</p> <p>J. W. Hague testified, for the State, that the alleged stolen cow was one of a number in the same brand that belonged to him, but which at the time of the alleged theft was in the care, management and possession of J. S. Holloway. The witness knew the cow well, not merely by her brand, but by the peculiarity of her horns as described by the witness Holloway. The witness went to the house of the defendant soon after the alleged theft, and, in the presence of defendant, told his brother, Ed Willard, that he would be able to tell by the horns whether or not the cow killed by them was his, witness’s, cow, and that if he, Ed. Willard, would show him the hgad, and the horns did not prove the identity of the cow, he, witness, would go on the witness stand at the trial and swear that the said cow was not shis, and would thus secure defendant’s acquittal. Ed. Willard replied that he did not know where the head was ; that he took it off the stable to show it to Mr. Ainsworth, and then threw it on the ground and had not seen it since, and that he supposed it had been carried off by a dog or a hog. Defendant said nothing during the conversation between witness and Ed. Willard.</p> <p>Sheriff Schmick testified, for the State, that the ■ defendant was one of several prisoners who escaped from the Eastland jail oh November 24, 1888, by cutting out through the roof. He was afterwards re-arrested in Tom Green county. Witness did not know which of the prisoners who escaped contrived the means of getting out.</p> <p>Judge J. T. Hammons testified, for the defense, that shortly after the alleged theft, J. S. Holloway, in a conversation with him on the steps of the court house in Eastland, told him that he found a head and horns which he believed to be the head and horns of the cow referred to in the indictment, but that he was afraid that that would not amount to evidence enough to convict defendant, although it would do to put him to some trouble.</p> <p>Major J. H. Davenport testified, for the defense, that he was present at the former trial of this case, and on that occasion heard the testimony of J. S. Holloway, including his description of the alleged stolen cow. After that trial witness saw a cow in the town of Eastland with horns similar in shape to the description given by Mr. Holloway. Witness could not state the age, color or brand of the cow he saw in Eastland.</p> <p>In so far as under the rulings of this court it is necessary to be set out, the charge of the trial court reads as follows: “* * * 5. You are instructed that in this case the State relies on circumstantial evidence in order to establish the guilt of defendant of the crime charged. In considering this character of evidence, you are instructed that, in order to warrant a conviction of a crime, each fact necessary to the conclusion sought to be established, must be proved by competent evidence beyond a reasonable doubt. All the facts must be consistent with each other,, and with the main fact sought to be proved; and all the circumstances taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused and no other person committed the offense charged. And in this case, if on consideration of the evidence, there is any reasonable hypothesis consistent with the facts proved to your satisfaction, and inconsistent with the guilt of the defendant, he should be acquitted.”</p> <p>“7. I will now apply the law above given you to the facts of this case. If you should find from the evidence that the defendant, Lon Willard, on or about the fifteenth day of January, 1888, or at any time within five years prior to the time of the filing of this indictment, which was the thirtieth day of May, 1888, and in the county of Eastland, and State of Texas, did then and there fraudulently take the particular cattle mentioned in said indictment; and should you further find that, at the time and place of such taking by defendant, the J. S. Holloway mentioned in the indictment then and there had and exercised the actual care, custody and control and management of the animal so taken, and that said animal was so taken by the defendant without the consent of the said J. S. Holloway, and with intent then and there, on defendant’s part, to deprive the owner of the value of the said one cattle, and to appropriate it to the use and benefit of himself, defendant, then and in such case defendant would be guilty as charged; and if you so find the facts you will find him guilty and assess his punishment at confinement in the penitentiary not less than two nor more than five years.</p> <p>“8. In considering this cause if you should believe from the evidence that the one cattle described in the indictment was in fact stolen as alleged, yet if the evidence should raise in your minds a reasonable doubt that defendant is the person who committed the offense charged, you should acquit him; that is, if from the evidence you should find that defendant’s brother, Ed Willard, or Fordy House, or some other person other than defendant, committed the offense charged, if committed at all, you should acquit; or if from the evidence you have a reasonable doubt as to this you should give the defendant the benefit of the doubt and acquit him.”</p> <p>‘TO. Again, if the cow’s head and horns found by Holloway in the Willard pen (if he found one) was the head of some other animal, and not the head of the animal about which he testified, then defendant should be acquitted; or if from the evidence you have a reasonable doubt as to this question, defendant should be given the benefit of the doubt. You are further instructed that the defendant is presumed bylaw to be innocent until his guilt be established by legal evidence, and if from the evidence before you you have a reasonable doubt as to the defendant’s guilt you should acquit him. As before given you in charge, you are the exclusive judges of the credibility of the witnesses, and the weight to be given to the testimony, and of the facts proved; but you must receive the law as given you in charge by the court, and be governed thereby.”</p>

<p>1. Assault to Murder—Intent.—The essential ingredient of the offense of assault with intent to murder is that the assault was accompanied by the specific intent of the accused to murder, and this ingredient must be established to the satisfaction of the jury,</p> <p>3. Same.—The offense of assault with intent to murder is proved when it is shown that, had death resulted from the assault, the offense would have been murder. Another test is that “if the assault is voluntary, committed with deliberate design and with an instrument capable of producing death in such manner as evidences an intention to take life, and there are no extenuating circumstances, it is an assault with intent to murder.”</p> <p>$. Same—Presumption.—The rule is statutory that “the intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the forbidden act.” And it is elementary that ‘ a man is always presumed to intend that which is the necessary or even probable consequence of his acts, unless the contrary appears.”</p> <p>4. Same—Abandonment—Practice in Court of Appeals.—If a party, intending to commit murder, uses a deadly weapon in such a manner as that his intent is apparent or may be fairly inferred from the act, he can not, by abandoning any further attempt at violence, mitigate the effect of his previous act or intention; and it is for the jury to determine, under appropriate instructions upon the law, whether, by what he did before he abandoned the further execution of his plansi he really and in fact intended to commit murder. And if they find that he did so' intend to commit murder, and ,ie facts justify the finding, then this court will not interfere wb’ .e verdict.</p> <p>.5. Assault to Murder—Pact Case.— ne statement of the case for evidence held sufficient to support a v mvietion for assault to murder.</p>

<p>Appeal from the District Court of Tarrant. Tried below before R. J. Boykin, Esq., Special Judge</p> <p>The indictment in this case, which was framed under articles 798 and 799 of the Penal Code, charged that the appellant did fraudulently take, steal, and carry away’from the possession of G. W. Montgomery, in the Cherokee Nation, Indian Territory, who was holding the same for the owner, S. S. Cobb, three certain horses, with the intent, etc. j which said acts, by the law of the said Cherokee Nation, then in force, did constitute the offense of theft; and that thereafter he brought the said horses into the county of Tarrant, State of Texas. Under this indictment the appellant was convicted of theft, and his penalty was assessed at a term of five years in the penitentiary.</p> <p>. S. S. Cobb was tlie first witness introduced by the State. The material facts to which he testified were that he lived on his ranch in the “Cherokee Strip,” in the Cherokee Nation; that the horses mentioned in the indictment belonged to him, but, when taken, were in the possession of his agent, Montgomery; that the same were taken by some person unknown to him, and without his consent, about the time alleged in the indictment—May 5, 1888—and that he subsequently recovered two of the said horses in the city of Fort Worth, Texas.</p> <p>G. W. Montgomery testified, for the State, in substance, that he lived at Cobb’s ranch in the Cherokee Strip, and, in the absence of Cobb, exercised control over the said ranch and the stock appertaining thereto. The defendant, whom the witness had known for eighteen months, and who, during that time, had worked on a ranch adjoining the Cobb ranch, in the Cherokee Strip, spent the night of May 5, 1888, with the witness at the said ranch, leaving there late on the next evening, and going in a westerly direction. Three of Cobb’s horses failed to return to the ranch on that night, and on the next day the witness instituted diligent but unsuccessful search for them. He found the south gate of the pasture open, and that the said three horses and others had left the pasture through that gate. Witness recovered all but the three horses mentioned in the indictment. Subsequently Mr. Cobb recovered two of the last mentioned horses in the city of Fort Worth. The said three horses were taken without the knowledge or consent of the witness.</p> <p>T. F. Walker testified, for the State, that he lived in Fort Worth, Texas, and was the proprietor of the Central wagon yard, on Main street, in that city. Between ten and eleven o’clock on the morning of May 17, 1888, the witness met the defendant on Houston street, in Fort Worth, on which occasion the defendant told witness that he wanted to sell the horse he was riding and another horse which he had just left in the witness’s wagon yard. Witness replied that buyers could be readily found in Fort Worth, and that if the animals upon inspection suited him, he might, perhaps, purchase himself, Witness and defendant then went to the wagon yard, where the defendant pointed out the second horse, and witness offered him fifty dollars for the two. The defendant replied that he would not take less than one hundred dollars for them. The witness then asked him where he got the animals, and he replied that he got them in a trade with a hired hand of one B. C. Evans, a cow man, who, he said, lived ten or twelve miles northwest of Aurora, in Wise county, Texas—Aurora being about twenty-five miles northwest of Fort Worth. After a prolonged conversation, the witness offered the defendant sixty dollars for the two horses, and he agreed to sell them to the witness for that price. The witness then declined to purchase until the defendant should satisfy him as to his title to the said horses. Defendant then said that he would go up town and see if he could find an acquaintance from Wise county through whom he could satisfy witness. After a prolonged absence he returned and reported that he could find nobody from Wise county. The witness again declined to purchase until satisfied about the title. The defendant then proposed to leave one of the horses in the custody of the witness, and on the other to go to Decatur in Wise county to arrange the necessary proof of title. He proposed that if he should satisfy the sheriff of Wise county and the Decatur bank about his title he would deliver the horse ridden off by him to the said sheriff for the witness, if witness would remit him the purchase money through the said Decatur bank. To this proposition the witness agreed, and defendant left witness a short while before sundown, ostensibly to go to Decatur, which was about twenty-five miles distant. His horse was then very much jaded, and at that time he had no slicker. It rained during the said night. At about six o’clock on the next morning the defendant came to witness’s wagon yard and handed witness the note now offered in evidence. Substituting spaces for hieroglyphics—the design of a heart above a cross—the note reads as follows:</p> <p>“Mr Walker, those horses that Mr Clark sold to you is all right. I will bee responsible for them. One black horse, brand -and G on left sholder E on ■ thigh. Bay-circle Z on left sholder E on thigh.</p> <p>“B. C. Evans.”</p> <p>The witness exhibited the note to several citizens of Fort Worth, including the merchant of that name, and inquired if they knew such a man who resided in Wise county. The witness then returned the note to defendant, telling him that he was not satisfied with the showing of title. Defendant told witness that he went to see Evans during the night, and got him to write the note. His horse did not look any more jaded on that morning than he did on the night before, and showed no evidence of travel during the preceding night. Witness then reported the matter to officer Witcher. Subsequently witness turned the horses over to S. S. Cobb.</p> <p>Officer Witcher testified, for the State, that the witness Walker, on the morning of June 18,1888, informed him about the defendant having two horses in his, Walker’s, wagon yard, and witness went to the said yard to investigate the matter. He asked, defendant if he had any horses for sale. Defendant replied that he had two, and showed them to witness. Witness asked him for his bill of sale. He replied that Walker had it; that he went to see Evans on the night before and got him to write it. He said that he got the horses from a man in the employ of Evans. Witness then asked him if he made the trip to Evans’s house in one night. He replied that he did not have to go all the way to Evans’s house, as he met Evans between Aurora and his home between mid-night and one o’clock, when Evans, by light of a buffalo chip fire, wrote the note. The witness then arrested defendant and took him to the calaboose. Upon searching him he found the Evans note in a pass book in his pocket. The note showed to have been written on a leaf torn from that book. The defendant’s horse—the one he claimed to have ridden to Wise county on the night before,—showed no sign of having made the trip. The roads between Fort Worth and Aurora were very bad in wet weather, and there was a rainfall on the said night.</p> <p>R. H. Tucker, a hand-writing expert, was next introduced by the State. After comparing the note in evidence, purporting to have been signed by B. C. Evans, with two of the defendant’s acknowledged signatures, he testified that the said note was evidently written by the defendant.</p> <p>The State next introduced in evidence the following extract from the laws of the Cherokee Ration: -'Every person who shall wilfully take or steal a horse, mule, ass or cow, shall be deemed guilty of a felony, and upon conviction be imprisoned not less than three years nor more than seven years, and be fined for the benefit of the injured party in a sum double the amount of loss or damage sustained. And every person found a second time guilty of a violation of this section, shall be imprisoned not less than seven nor exceeding ten years, and be fined as above.”</p> <p>The State closed.</p> <p>Sam Murrell, the brother-in-law of the defendant, testified, in his behalf, that he, witness, lived in Cooke county, Texas. Defendant left witness’s house about two weeks before his arrest upon this charge. He was then riding his own horse, worth about seventy-five dollars, and had seventy dollars in money-During the larger part of the three or four years preceding the arrest of defendant, he, defendant, worked with cattle in the Indian Territory. Witness knew a man named B. C. Evans, who claimed to live in Wise county, and had seen that man in Wise county. He considered that man a “bad egg.”</p> <p>The two remaining witnesses testified that -they were acquainted with the reputation of the defendant for honesty, etc., and that it was good.</p>

<p>1. Practice—Change of Venue.—The trial judge, of his own motion, changed the venue of this case from L. to B. county, the said B. county not being within the same judicial district. The objection urged by the defense was that the venue was changed to a county in another judicial district, and not to F., the nearest county in the same district. But among the reasons assigned by the judge for changing the venue to B. county instead of F. county, it appears that to his knowledge the said P. county was subject to the same objection as L. county. Held, that the venue was properly changed to B. county.</p> <p>2. Same—Evidence.—A State's witness was permitted to testify that, about two or three weeks before the homicide, the defendant, in the presence of the witness and others, said that if the deceased ever came to Twohig he had better come shooting or he would not leave there alive. The objection urged was that the evidence did not tend to show the complicity of the defendant as a principal actor in the homicide, nor to establish a conspiracy with C., who was the actual perpetrator, to kill the deceased. Held, that the proof showing defendant to have been present at the homicide, the evidence was properly admitted in corroboration of attending circumstances evidencing not only a conspiracy to murder the deceased, but that the defendant and C. acted in concert in the perpetration of the murder.</p> <p>Same—Cross Examination.—It is a general rule that a witness can not avoid answering a question that is material to the issue, upon the ground that it imputes disgrace to himself, unless such disgrace amounts to crimination. Under this rule the trial court did not err in refusing to permit the defense, upon cross examination, to ask a State’s witness if he did not, upon the trial of one W., for rape, endeavor to get the defendant to procure false testimony against W., such proposed evidence being material to no issue in this case.</p> <p>4. Murder—Charge oe the Court.—Omission or refusal of the trial court to submit in charge to the jury the law of murder in the second degree, when the evidence establishes only the higher grade, is not error.</p> <p>5. Same—Practice in teóe Court oe Appeals.—The appellate court, in determining the question whether injury or probable injury resulted to the accused from the giving of an erroneous, or the omission of a necessary, instruction, must consider the charge in its entirety and as applied to the evidence embodied in the statement of facts.</p> <p>6. Same—Charge oe the Court.—In this case the general charge of the . court clearly and concisely hinged the guilt of the accused upon the question whether he was present when C. killed the deceased, and, knowing the unlawful intent of C., aided or encouraged C. in the killing of the deceased; or whether he advised or agreed to the killing of the deceased by C., and was present when O. killed the deceased. The defense requested an alternative charge based upon the theory that C., unaided in any manner by the accused, shot and killed deceased, and that the shooting of one E., at the same time and place by the accused, was a distinct and separate transaction from the killing of the deceased by C. The trial court gave the requested instruction with the following qualification: “The foregoing charge is given in-subordination to the general charge regarding principals.” This qualification was not excepted to, but was urged as cause for new trial, and is relied upon in this court for reversal, the defense maintaining that, if the evidence does not clearly establish its theory, it leaves it in doubt, and that its said theory should have been submitted to the jury affirmatively, subordinate to no other charge and untrammeled by any qualification whatever. Held, that abstractly the objection is sound, and if based upon sufficient evidence or opposed by insufficient inculpatory proof, would require a reversal of the conviction; but, the evidence not only refuting the theory, but establishing beyond peradventure the propositions propounded by the general charge, the qualification appended to the special charge by the trial judge did not inure to the injury of the defendant.</p> <p>8. Murder—Fact Case.—See the statement of the case for evidence held sufficient to support a capital conviction fof murder.</p> <p>On Motion eor Rehearing.</p> <p>9. Practice—Evidence—Postponement eor Surprise.—The motion for rehearing shows to th.e satisfaction of this court that, by reason of a clerical error in a bill of exceptions, the original opinion states that the witness E. testified that the threats of the deceased were to be executed at Cotulla, whereas in fact the said witness testified that Twohig was the place whereat, in the event of the deceased going there, the threats would be executed. But held that, notwithstanding this showing, the motion for rehearing must be denied, because, in the light of the evidence on the trial, the absent testimony, if adduced, could not have affected the result of the trial.</p>

<p>Appeal from the County Court of Wilbarger. Tried below before the Hon. T. W. Robinson, County Judge.</p> <p>The appellant in this case was convicted for failing, as the overseer of road precinct number ten, of Wilbarger county, to keep the public roads in repair, and his punishment was assessed at a fine of twelve and a half dollars.</p> <p>The proof for the State and the defense concurs in showing that the appellant was placed in charge of from twelve to fourteen miles of public road, and that not more than from twelve to fourteen hands were apportioned to him to keep the said roads in repair; that the force thus apportioned to him was wholly inadequate to perform the labor allotted to him, and that, under the circumstances, it was utterly impossible for the appellant to keep the said roads in repair.</p>

<p>Indictment ob Information fob Theft is fatally defective if it fails to charge directly that the talcing of the property was fraudulent. Such allegation is not supplied by the subsequent allegations that the taking was with the fraudulent in ent to deprive the owner of the value of the property, and fraudulently to appropriate the same, etc.</p>

Tried below before the Hon. J. E. Hayworth, County Judge. The opinion sufficiently discloses the case. The penalty as- f sessed against the appellant was a fine of twenty dollars.

Tried below before the Hon. Griffin Ford, County Judge. The appellant was convicted for unlawfully carrying a pistol on his person, and his punishment was assessed at a fine of twenty-five dollars and confinement in the county jail for twenty days. The proof shows that while in attendance upon a dance at a place known as Eagle Point, the defendant was informed that an officer was en route to said dance to arrest him.

Tried below before the Hon. J. E. Hayworth, County Judge. The penalty assessed against the appellant was a fine of twenty-five dollars and confinement in the county jail for twenty days.

Tried below before the Hon. J. E. Hayworth, County Judge. This conviction was for exhibiting a gaming table, and the penalty assessed by the verdict was a fine of twenty-five dollars and imprisonment in the county jail for ten days.

Tried below before the Hon. E. E. Burke. The conviction was for burglary, and the penalty assessed was a term of three years in the penitentiary. The sufficiency of the indictment is the only question determined on the appeal.

Tried below before the Hon. R. E. Burke. The conviction in this case was in the second degree for the murder of C. Spears, in Dallas county, Texas, on the first day of November, 1887. The penalty assessed against the appellant was a term of five years in the penitentiary. J. C. Crownover was the first witness for the State.

Tried below before the Hon. R. E. Burke. This is the companion case to the preceding case of Monk v. The State, the conviction being in the second degree for the same murder—the penalty in this case being assessed at a term of twenty-five years in the penitentiary.

<p>1. Aggravated Assault and Battery—Evidence.—See the opinion for the substance of evidence held, insufficient to support a conviction for aggravated assault and battery because insufficient to support the ground of aggravation alleged in either of the counts of the indictment.</p> <p>2. Same—Diligence—Hew Trial.—The application for continuance shows that the defendant sued out as many as four subpranas and one attachment for the absent witness, who was a resident of Dallas county, and alleged that by the absent witness he would prove that the alleged injured party was the aggressor, and that he struck said party only in defense. The testimony of the prosecuting witness was not only contradicted as to material matter by the witnesses for the defense, but they testified that the prosecuting witness cursed the defendant, and struck him before defendant struck the prosecuting witness, and that, when the defendant finally struck the two blows inflicted upon the prosecuting witness, he, defendant, was retreating. Held that the diligence being sufficient, and the absent testimony being, in view of the proof, both material and probably true, a new trial should have been awarded.</p>

Appeals from the District court of Dallas. Tried below before the Hon. G. H. Aldredge. These were convictions for fraudulently disposing of mortgaged property, the penalties assessed being a term of two years in the first and of three years in the penitentiary in the second case.

Tried- below before the Hon. B. E. Burke. The conviction in this case was for theft of property over the value of twenty dollars, and the penalty assessed against the appellant was a term of two years in the penitentiary. Dan Stewart testified, for the State, in substance that a coat, vest and pair of shoes, worth in the aggregate more than twenty dollars, were stolen from his room over the “Coney Island” saloon in Dallas, Texas, about the time alleged in the indictment.

Tried below before the Hon. P. M. Stine. The conviction in this case was had under an indictment which charged the appellant with the theft of two horses, the property of Henry Heineke, in Wilbarger, county, Texas, on the thirtieth day of Hovember, 1887. The penalty assessed by the verdict was a term of ten years in the penitentiary. Henry Heineke was the first witness for the State.

<p>1. Practice—Indictment.—The State abandoned all but the last count in the indictment. The defense maintains that the effect of such abandonment is to eliminate the caption of the indictment and leave the last count insufficient to charge an offense because it does not commence, “In the name and by the authority of the State of Texas,” and does not charge that it was presented by a grand jury of Wilbarger county. Held, that the proposition is hypercritical, and that the caption and commencement of an indictment apply to and constitute apart of each and every count contained therein.</p> <p>8. Same—Theft.—The bringing by the thief into a county of this State of property stolen in another State constitutes, under our law, theft in the county into which the stolen property is brought; and one who gives, aid to the thief in such county, after the stolen property is brought into it, is guilty as an accessary to the theft.</p> <p>3. Same—Evidence.—Inasmuch as an accessory, whose principal is in arrest, can not be tried and convicted until after the trial and conviction of the arrested principal, it devolves upon the State, in the trial of the accessory, to show the conviction of the principal. And to make such proof in this case, the court properly permitted the State to in troduce in evidence the verdict and judgment of conviction rendered against the principal.</p> <p>4. Accessory to Theft—Pact Case.—See the statement of the case in Williams v. The State, ante, 466, for evidence held sufficient to support the conviction of an accused charged as an accessory to theft.</p>

Tried below before the Hon. R. E. Burke; The conviction was for the theft of personal property of the value of twenty dollars and over. The penalty assessed was a term of two years in the penitentiary.

Tried below before the Hon. E. G. Bower. The appellant was convicted for maintaining a nuisance in violation of the public health laws; his penalty was assessed at a fine of one hundred dollars.

Tried below before the Hon. B. E. Burke. This conviction was for the theft of a railway passenger ticket, of a value exceeding twenty dollars. The penalty assessed was a term of two years in the penitentiary. The fact that the appellant stole the ticket from the office of the railway company in Caldwell, Burleson county, and sold it in Dallas, was not contested, but the defendant’s confession of the theft was proved.

<p>Bz/Andbr — Evidence—Practice.— An information for slander by imputing to a female a want of chastity should allege, at least in substance, the language actually used by the accused, and to that language the proof should be confined. If the meaning of the language as charged be obscure, then the information should allege its meaning; otherwise proof of its meaning is not admissible. The meaning of the language charged by the information in this case is clear and unambiguous, but the language proved is not only variant from that alleged, but is obscure in meaning. The trial court permitted a State’s witness to testify that he understood the language used by the accused to correspond in meaning with that charged in the information. Held, error. See the opinion for the substance of evidence held insufficient to support a conviction for slander because it does not support the allegations in the information.</p>

Habeas Corpus on appeal from the District Court of Bur-net. Tried below before the Hon. W. A. Blackburn. The judgment of the lower court refusing bail to the relator is reversed, and bail is awarded him in the sum of six thousand dollars. The first witness called to the stand was George B. Dunn. He testified that he lived in Eagle Pass, and was the justice of the peace in and for precinct number one of Maverick county.

Habeas Corpus on appeal from a judgment in chambers by the Hon. H. 0. Pleasants, Judge of the Twenty-fourth Judicial District, remanding the relator to the custody of the sheriff of Karnes county.

Tried below before the Hon. George McCormick. ■ The conviction in this case was for unlawfully carrying a pistol, and the penalty assessed by the verdict was a fin© of twenty-five dollars, and. twenty days in the county jail. A single witness testified, for the State, that he saw defendant carrying a pistol on his person on the day alleged in the indictment.

<p>1. Carrying a Pistol—Charge of the Court.—The information charged the appellant with carrying a pistol only, and the evidence on the trial related to the carrying of a pistol only; notwithstanding which the trial court charged the jury with reference to the carrying of a dagger, dirk, slung shot, sword cane, spear, knuckles, etc. Held error.</p> <p>2. Same.—A charge of the court is erroneous which instructs the jury upon a phase of case not raised by the evidence on the trial.</p>

Tried below before the Hon. H. Teichmueller. This conviction was for perjury, and the penalty assessed by the verdict was a term of five years in the penitentiary.

<p>1. Recognizance taken after indictment must describe the very offense of which the principal is charged.</p> <p>2. Same—Practice—Indictment.—Another equally well settled rule is that neither the principal nor the sureties in a bail bond or recognizance can question the sufficiency of the indictment in a scire facias proceeding to forfeit the same.</p> <p>3. Same—Case Stated .—The recognizance in this ease binds the principal to appear on an indictment for assault with intent to rape. The said indictment is insufficient to charge that offense, but is sufficient to charge an aggravated assault and battery. The defendants’ motion to quash the recognizance is based upon the ground that it does not obligate the principal to appear and answer the offense charged in the indictment. But held, that, as the intent of the indictment to charge assault to rape is manifest, the last rule announced obtains, and the trial court properly overruled the motion.</p>

Tried below before T. B. Cochran, Esq., Special Judge. The opinion discloses the nature of the case. The penalty assessed against the appellant was a fine of twenty-five dollars.

Tried below before the Hon. George McCormick. The conviction in this case was for the theft of a mare; the property of some person to the grand jurors unknown, in Gonzales county, Texas, on the twenty-third day of April, 1887. A term of five years in the penitentiary was the penalty assessed against the appellant. 'M. C. West was the first witness for the State. He testified that he was a member of the grand jury that found this indictment.

Tried below before the Hon. Leo Eogan, County Judge. The conviction in this case was for an aggravated assault upon one Johanna Earnst, a married woman. The penalty assessed against the appellant was a fine of five hundred dollars and confinement in the county jail for one year. The proof shows that at the time of the assault, the defendant was the guest of J. H. Earnst.

Tried below below before the Hon. W. M. Key. The conviction in this case was had under an indictment which charged the appellant, as county judge, with official extortion in demanding fees not allowed by law. The jury assessed as penalty against the defendant a fine of twenty-five dollars, and, upon the verdict, the trial judge adjudged his removal from office, and declared the office of county judge vacant.

Tried below before the Hon. D. S. Chessher, County Judge. Appellant, by information based upon affidavit, was prosecuted in the county court of Williamson county for three offenses.

<p>Information is insufficient to charge an offense unless it concludes with the words: “Against the peace and dignity of the State.” The complaint, however, being a good one and sufficient to sustain an information, the cause is not dismissed, but is remanded in order that a valid information may be filed upon the complaint.</p>

Tried below before the Hon. D. E. Barrett. The indictment charged the appellent with the murder of J„ S. Ferguson, in Denton county, Texas, on the first day of January, 1888. The jury found the defendant “guilty as charged in the indictment,” and assessed the penalty at a life term in the penitentiary. S. Ferguson, the father of the deceased, was the first witness introduced by the State. He testified that the deceased was killed at his house, in Denton county, Texas.

Tried below before T. J. Gibson, Esq., Special Judge. The indictment charged the appellant with the murder of Neil Washington, in Freestone county, Texas, on the twenty-fifth of December, 1887. The trial resulted in a conviction for manslaughter, a term of two years in the penitentiary being the penalty assessed.

Tried below before the Hon. J. M. Hall. The opinion discloses the case. The penalty assessed by the jury was a term of two years in the penitentiary.

<p>Appeal from the District Court of San Saba. Tried below before the Hon. A. W. Moursund</p> <p>The penalty assessed against the appellant was a fine of ten •dollars.</p>

Tried below before the Hon. B. P. Conner, County Judge. The conviction in this case was for the theft of a pair of blankets, the alleged property of S. R. Switzer, in Brown county, Texas, on the first day of December, 1888. The penalty assessed against the appellant was.a fine of ten dollars, and confinement in the county jail for twenty-four hours. S. R. Switzer was the first witness for the State. He testi fled that he lived in Comanche county, Texas.

Tried below before the Hon. J. E. Hayworth, County Judge. This conviction was for violation of article 756 of the Penal Code, the appellant being prosecuted for failing to report to the commissioners court the animals slaughtered by him for market. The penalty assessed by the verdict was a fine of fifty dollars.

Tried below before the Hon. A. W. Moursund. This conviction was for theft of hogs of value less than twenty dollars. The penalty assessed by the verdict was a fine of sixty-nine dollars and sixteen cents, and confinement in the county jail for nine days.

Tried below be. fore the Hon. A. W. Moursund. The indictment charged the appellant with the theft of rails of the value of five dollars, and lumber of the value of eighteen dollars. The conviction was for theft of the rails, and the penalty assessed against the appellant was a fine of twenty dollars and confinement in the county jail for twenty-four hours. William McMichael was the first witness for the State.

Tried below before the Hon. J. W. Timmins. The conviction was for burglary, and the penalty assessed by the verdict was a term of two years in the penitentiary. S. J. Dowty was the first witness for the State. He testified, in substance, that he lived in the town of Brown wood, Brown county, Texas, in which town he followed the business of a retail liquor dealer, his drinking establishment being known as the Little Elephant saloon.

Tried below before the Hon. B. F. Turner, County Judge. This conviction was for wantonly killing a horse, and the penalty assessed was a fine of forty dollars. J. B. Young testified, for the State, in substance, that he owned the horse mentioned in the information. He bought that animal from John Burson in August, 1887, at which time the horse was nearly two years old. Witness thought the animal was a gelding, but did ndt throw him down to verify that opinion.

Tried below before the Hon. J. T. Evans, County Judge. The penalty assessed against the appellant was a fine of ten dollars.

Habeas Corpus on appeal from the District Court of Navarro. Tried below before the Hon. Rufus Hardy. The syllabus states the nature of the case. C. J. Hanson was the first witness for the relators. He testified that he was the father of the relators, who were brothers. The relators lived with the witness on his place in Navarro county, between the towns of Corsicana and Purdon.

Tried below before the Hon. T. H. Conner. The penalty assessed by the verdict was a term of five years in the penitentiary.

Tried below before the Hon, J. W. Timmins. This conviction was for the robbery of W. H. Flippin, under an indictment the charging part of which is set out in the opinion. The penalty assessed by the verdict was a term of ten years in the penitentiary. W. H. Flippin was the first witness for the State.

Tried below before the Hon. I. N. Roach, County Judge. The conviction was for an aggravated assault upon J. A. Rutledge. The penalty assessed by the verdict was a fine of twenty-five dollars. J. A. Rutledge was the first witness for the State. He testified that the offense for which this defendant was now prosecuted was committed upon him, the witness, as alleged in the information, on the sixteenth day of June, 1888.

<p>Appeal from the County Court of Llano. Tried below before the Hon. E. C. Bonham, County Judge.</p> <p>The information charged an aggravated assault, and the verdict found appellant guilty of a simple assault and assessed the penalty at a fine of five dollars.</p> <p>Belton Waits was the first witness for the State. He testified that he lived in Llano county, Texas, about twelve miles distant from the town of Llano. On the morning of July 12, 1888, the witness and his brother Clabe went to work in the field that they had rented from Mrs. M. J. Chadoin. Their work was cutting top fodder. The defendant and Mr. and Mrs. Chadoin and Travis Chadoin were engaged in like work in another part of the said field. Witness’s brother called to J. A. Chadoin to come to where he and witness were, as he desired to see the said J. A. Chadoin alone, about the top fodder. J. A. Chadoin came to where witness and Clabe were, and he and Clabe retired to a point fifteen or twenty steps distant from witness, squatted down in the weeds, and proceeded to talk about the fodder. While Clabe and J. A. Chadoin were thus engaged, the defendant came to a point near the witness and said to him: “What kind of a game is this you are giving aunt about the fodder?” Witness replied: “Go away and don’t bother me.” Defendant then advanced to a point within two or three steps of witness, holding a butcher knife. in one hand and a case knife in the other, and said to witness: “I will carve your damned heart out of you.” Witness backed off and turned to go home, when defendant said to him: “Go on home and get your daddy, and tell him to bring his gun and two or three more if he has them.” Witness then went home, passing near Clabe and Jim Chadoin.</p> <p>On his cross examination, the witness said that he and Ms brother had rented and were cultivating Mrs. Chadoin’s field. They were to pay, as part of the rent, one-third of the fodder grown. Witness and Clabe were cutting fodder on that part of the field which they had reserved for themselves, and the Chadoins and defendant were cutting fodder on the part of the field they had assigned to Mrs. Chadoin. Defendant was a nephew of Mrs. M. J. Chadion, and was working for her at the time of the difficulty. J. A. and Travis Chadoin were near by when the difficulty occurred. Defendant was whetting the knives together when he approached and spoke to the witness. Witness supposed that defendant had been cutting fodder with one of the knives.</p> <p>The State rested.</p> <p>Travis Chadoin was the first witness for the defense. He testified that he was present and witnessed the trouble between defendant and Belton Waits. While the parties named by Waits in his testimony were cutting fodder in the field, Clabe Waits called to J. A. Chadoin to go and talk with him about the fodder. When Clabe and J. A. Chadoin stepped aside, the defendant asked Belton Waits: “What kind of a game is this you are putting up on aunt, in cutting all the fodder and leaving none for rent?” Belton Waits replied to defendant: “That is none of your damned business!” Defendant replied: “I suppose it is some of my business, as my aunt employed me to cut her part of the fodder, and I don’t intend to see her treated so.” Belton Waits then said: “I will go home and get my father, and he will settle with you.” Defendant replied: “Go home and get your father; I can reason with him.” Belton Waits then went home, and defendant, witness and Mrs. J. A. Chadoin went to where J. A. Chadoin and Clabe Waits were talking. During the whole of the conversation between defendant and Belton Waits, the witness stood within two feet of defendant, and he knew that defendant did not strike nor attempt to strike Belton Waits with a knife or anything else, nor did he make any threat to strike or do him violence. Defendant had two old knives in his hand, sharpening them by whetting them together, which said two knives he had been using in cutting fodder.</p> <p>On cross examination, the witness said that defendant spent a large part of his time at the house of his aunt, Mrs. M. J. Chadoin, and was in her employ at the time of this difficulty. He had nothing to do with the management of Mrs. Chadoin’s business. J. A. Chadoin was Mrs. M. J. Chadoin’s business manager, and both witness and defendant worked under the orders of J. A. Chadoin.</p> <p>Mrs. J. A. Chadoin testified, for the defense, substantially as did the witness Travis Chadoin, stating positively that defendant neither struck, struck at nor threatened to strike Belton Waits.</p> <p>J. A. Chadoin testified, for the defense, that on the morning of July 12, 1888, while he and his wife, defendant and Travis Chadoin were cutting rent fodder on the land rented by the Waits boys from witness’s mother, the brother of defendant, Clabe Waits, called witness to him to talk over the disagreement about the fodder. Witness, accompanied by his wife, defendant and Travis Chadoin, went to where the Waits boys were. Clabe requested witness to step aside, as he wanted to talk to witness privately. While talking with Clabe Waits the witness heard Belton Waits say: “It is none of your damned business.” Witness, who was then squatted, raised up and saw all that transpired between defendant and Belton Waits. Defendant was standing still, whetting two old knives together. Witness told the boys not to have a fuss. About that time all of the parties on the ground came to where witness and Clabe Waits were. Belton Waits started home, saying that he would get his father to settle the matter. Defendant replied to him: “If you will get your father we can reason the matter. Witness then told Belton that he and Clabe had settled the disagreement about the fodder, and for him,- Belton, to come back. Clabe Waits told Belton the same thing, but Belton refused to come back and went on home. Mrs. M. J. Chadoin was the mother of the witness. Her entire business was under the management of the witness, and defendant was then working under witness for Mrs. M. J. Chadoin.</p> <p>The defense closing, the State introduced Clabe Waits in re buttal. He testified that immediately after the alleged assault upon Belton Waits by defendant, the several parties in the field came to where witness and J. A. Chadoin were talking over the fodder matter. Belton Waits was then told by defendant to go and get his father and to tell his father to bring his gun and four or five more if he had them.</p>

Tried below before the Hon. R. W. Cates, County Judge. The conviction in this case was for the theft of two cotton sacks, and three hundred pounds of seed cotton, of the aggregate value of eight dollars. The penalty assessed by the verdict was a fine of twenty-five dollars and imprisonment in the county jail for sixty days. Peter Baumgardner was the first witness for the State. He testified that he lived on Rock creek, in Burnet county.

<p>Habeas Corpus on original hearing in the Court of Appeals, on application from. Travis.</p>

Tried below before the Hon. W. H. Bullock, County Judge. The indictment jointlyimpleaded the appellant and Ida Smith for adultery. The appellant, being alone upon trial, was convicted, and his punishment assessed at a fine of one hundred dollars.

<p>Appeal from the County Court of Collin. Tried below before the Hon. M. W. Johnson, County Judge.</p> <p>The opinion sets, out the nature of the case. The penalty assessed by the verdict was a fine of one cent. The prosecution is dismissed because the indictment is bad in substance, but the ruling of this court upon the action of the trial court, in refusing the special instructions asked by the defense, necessitates a statement of the evidence adduced on the trial.</p> <p>J. B. Watson was the first witness for the State. He testified, in substance, that he owned the place or farm in Collin county which the defendant leased and cultivated during the year 1887. That farm was enclosed by a good fence constructed of barbed wire in three strands, some of the supporting posts being eight feet, and others sixteen feet apart. There was a pair of bars near the house used in going into and out of the field with wagons and teams. In October, 1887, the defendant cut the said fence in two places, which materially damaged it, inasmuch as it could not be so spliced at the gap made by the cutting without leaving the wire slack. On cross examination the witness said that a good state of feeling did not exist between him and the defendant. Witness went to the house occupied by defendant and asked him why he cut the fence. Defendant replied that he had a right to cut it, whereupon the witness struck him. The ground was about as firm, even and good at the bars as it was at the places cut by the defendant, and the bars were at no greater distance from the house than the places cut. It had not-been raining recently before the bars were cut, and the ground was not then muddy. Witness never heard of stock getting, into that field.</p> <p>E. A. Kirkland testified, for the State, that the fence around the Watson farm, occupied by the defendant in 1887, was cut in two places on or about October, 1887. The gap made by the two cuttings opened a wagon way out of the farm to the public road. Defendant said that he cut the gap in the fence for his convenience, as a way through which to haul his cotton and fire wood. Sam H. Graves testified, for the State, substantially as did Kirkland, and in addition that he saw the defendant cut the fence. It had been raining at the time of the cutting, and the ground was wet and muddy, but not so muddy at the gap opened by defendant as at the bars near the house.</p> <p>John H. Watson, the son of the prosecuting witness, testified. for the State, that the ground, at the time the fence was cut, was in about the same condition at the gap opened by defendant as at the bars. W itness hauled some of the rent corn to his father’s house through the gap opened by defendant.</p> <p>The State closed.</p> <p>T. W. Harrison testified, for the defense, that he worked for defendant on the J. B. Watson place in 1887; helped him gather his crop of corn and cotton, and to cut the gap in the fence mentioned by the State’s witnesses. When he opened the gaps the defendant said that he did so because it afforded him a better course over which to haul his crops and firewood. A great deal of rain had recently fallen, leaving the ground wet, heavy and muddy. The ground was much muddier and heavier at the bars than at the gap made by defendant. The road through the bars passed over a large number of stumps, and to travel it in the field the defendant would have to drive his wagon over some of his growing cotton. Witness several times, before the cutting of the fence, helped defendant drive-stock out of the field. The fence was a three strand barbed wire fence, the posts standing far apart and the wire very slack in places. Stock could get through that fence at almost any point.</p>

<p>t. MURDER—MANSLAUGHTER—CHARG-E OP THE COURT.—'The proof shows that about one month before the homicide involved in this prosecution, the deceased killed one C., a relative of the defendant, and that the said killing resulted in creating relations of open and avowed enmity between the defendant and one S. on the one side, and the deceased on the other; that these relations became so strained and dangerous that mutual friends finally intervened and induced the parties to agree, on the part of defendant and S., not to molest the deceased, and on the part of deceased that, in visiting Hempstead, he would only carry his Winchester rifle in his buggy, or, if on horseback, in the scabbard t® the saddle, and that any other mode of carrying the said gun was to be construed by defendant and 8. as a declaration of hogtility by deceased; and that threats uttered by either party were by the mutual friends to he reported to the other party. The proof further shows divers breaches by the deceased of the agreement as to the carrying of the gun, and frequent threats of a deadly nature uttered by deceased, some of which were communicated to the defendant and S. The inculpatory proof shows that, when shot, the deceased was sitting on his horse, with his gun across his lap, and-his back toward the place from whence he was shot, and that, so far as was apparent, he was unconscious of the proximity of any person save those to whom he was talking, that he fired no shot, and that he made no motion to seize his gun, at least until immediately before he was fired upon, when he was warned by a bystander to “look out;” that a few minutes prior to the shooting the defendant and S-, from a short distance, remarked deceased’s presence, and immediately, by a circuitous route, and through an alleyway, approached to within a few feet of the deceased, and opened fire upon him from behind him, with fatal effect, and continued to shoot him while in the death agony. The defendant produced testimony to the effect that he and S. went to the place of the killing in the manner they did to execute a warrant for the arrest of a desperate criminál, who was reported to them to be at that place, and that their coming upon the deceased was sudden and wholly unexpected. Upon this state of proof the defendant claims that, by reason of the recent threats and acts of the deceased, in violation of the agreement, and their-sudden and unexpected discovery of him with his gun carried contrary to the agreement, they were confronted with such appearance of danger as was calculated to arouse, in men of ordinary temper, such emotions as would render the mind incapable of cool reflection; and upon this theory he demanded of the court the submission to the jury of the issue of manslaughter. Held that the proof did not present, and the trial court did not err in refusing to submit to the jury the issue of manslaughter, because the evidence does not establish “adequate cause,” nor show any purpose on the part of the deceased, when killed, to execute threats previously made by him.</p> <p>2. Same—Self Defense.—See the statement of the ease for a charge of the court on the issue of self defense, held sufficient under the evidence adduced; and see the opinion for requested instructions on the same question held to have been properly refused as unwarranted by any proof in the case.</p> <p>8. Same—Reasonable Doubt.—Upon the doctrine of “reasonable doubt” the trial court charged the jury as follows: “The defendant is presumed to be innocent until his guilt is established by the evidence to the satisfaction of the jury beyond a reasonable doubt”—omitting the statutory word “legal” before the word “evidence.” Held, that the omission was immaterial, and the instruction in substantial compliance with the statute,</p> <p>4. Same—Evidence.—In the examination of his own witness the defendant proved the declaration of deceased to the said witness, that defendant had uttered threats against him, deceased. Defendant requested the court to charge the jury that such declaration of the deceased could not be considered by them as evidence that such threats were made by the defendant. Held that, having himself elicited the adverse testimony, the defendant could not he heard to complain, and the court did not err in refusing the instruction.</p> <p>5. Murder—Pact Case.—See the statement of the ease for evidence held sufficient to support a conviction for murder in the seeond.degree.</p>

<p>Appeal from the County Court of Clay. Tried below before the Hon. B. F. Turner, County Judge.</p> <p>This conviction was for the theft of a plow, a double tree, a single tree and clevis, of the aggregate value of six and a half dollars. The penalty assessed was a fine of two hundred dollars and confinement in the county jail for twenty days.</p> <p>D. G-ilvin was the first witness for the State. He testified that in April, 1888, he lived on Mrs. Mason’s place, in Clay county, Texas. A severe rain fall interfered with plowing on Friday, April 20, 1888, and witness’s boy, who had been plowing on the place, left the plow and the plow gears—which gears belonged to one Thompson—in the field about twenty feet from the road. Witness and Thompson passed over that road late on Saturday evening, and noticed the plow and gears. Witness remarked: “There is a good chance for somebody to get some gears.” Thompson replied that the gears being old and worn, the plow was more likely to be stolen. The plow was next seen by witness on the defendant’s place in Buffalo Springs on or about May 20, 1888. When witness and Bill Evans first went to defendant’s place the defendant was not at home, and Evans refused to help search defendant’s place without a search warrant. Accordingly the witness went to ’Squire Goad and got a search warrant. He then got Constable Jack Evans and Mr. Wear and went to the defendant’s west place, which was abo ut five miles distant from his Buffalo Springs place. Thence they went to where defendant was building a tank, about half a mile from the said west place, and there the witness found his clevis, which he fully identified. Thence the witness, Jack Evans and Wear went to defendant’s place in Buffalo Springs. Arriving late, they made but a short search, and went to Bill Evans’s place and passed the night. Early on the next morning they went back to defendant’s house, and were met at the door by the defendant. Jack Evans told defendant that he was hunting for a cast plow that had been stolen from witness, and that he was acting under a search warrant. Defendant replied that there was no such plow on his place, and that no such plow had been on his place since Mr. Burnett’s was removed thence during the preceding January. Witness remarked: “That is not the plow I want. I want the one for which you bought the new points that were brought from town to you by Mr. Long.” Defendant made no reply, and the witness and his party went to a wagon on the place, where he found his double tree, the same being the double tree of an Osborn mowing machine. Defendant claimed that he brought that double tree from Tarrant county. Jack Evans then arrested defendant, telling him that whatever statement he saw proper to make could be used in evidence against him. Evans then turned defendant over to Wear with instructions to take him to ’Squire Goad, and witness and Evans then went back to the Buffalo Springs place to hunt for the plow. En route they met Bill Evans, who told them that J. E. Whitley told him, Bill Evans, that the plow was in a rail pile on defendant’s place in Buffalo Springs, and that if he, Bill Evans, and witness had looked there for it on the night before, they would have found it. Witness and Jack Evans went to the said rail pile, and there found the said plow, which witness fully identified. They took the plow to ’Squire Goad’s office. Goad then asked defendant what should be done with the plow? He replied: “He will swear to it; let him take it.” On his cross examination the witness said that the plow was not a Deere plow, and he did not tell Bill Evans and A. D. Long that it was a Deere plow. He did not describe it by the name of the manufacturer, for at that time he did not know it himself.</p> <p>The State witnesses Wear and Jack Evans corroborated Gilvin in detail as to what transpired during the search for the alleged stolen property, as to the finding of the same and the arrest of the defendant. Wear testified, in addition, that, en route to ’Squire Goad’s court with the defendant after his arrest, the defendant requested to be taken by the house of one Parish, so that he might there employ some hands to continue work on a tank he was constructing. Witness stopped on high ground and permitted defendant to go to Parish’s house, on his promise to return and accompany him to ’Squire Goad’s. Defendant not returning within the time allowed him, witness went to Parish’s house and learned that defendant had left. He then rode hurriedly toward the defendant’s east or Buffalo Springs place. About a mile distant from that place he over, took defendant and asked him why he had attempted to escape him. He replied that he was going to see one Whitley to get him to work on the tank. Witness then took defendant to ’Squire Goad’s office. The witnesses Wear and Jack Evans testified that they had known the defendant for five years, during which time his reputation for honesty was excellent. He was in easy financial circumstances, and able to purchase a car load of plows if he wanted them.</p> <p>The material part of the testimony of the two Messrs. Long, State’s witnesses, was that one of them worked for the defendant, on his place, from March 10 to March 28, 1888, during which time he plowed with a South Bend cast plow, furnished by defendant, and the other witness, about April 20, 1888, at the request of defendant, got a point for a cast plow, at Barber’s hardware store in Henrietta, and took it to defendant. These witnesses also supported the defendant’s reputation for honesty.</p> <p>The State closed.</p> <p>Bill Evans testified, for the defense, that Gilvin came to witness’s house on the day before the arrest of defendant, and he and witness went to defendant’s east place to see defendant and search for the plow. Defendant was not at home. Witness then helped Gilvin search the premises for the plow, and did not, as testified by Gilvin, refuse to do so, without a search warrant. Failing to find the plow, Gilvin and witness went to witness’s house and spent the night. Gilvin and Jack Evans left early in the morning. During that day, after the arrest of defendant, witness met Gilvin and jack Evans going towards defendant’s east place, and had a conversation with them, but he was satisfied he did not tell them that the missing plow would be found on the rail pile. The said plow was not on the rail pile on the day before, because, if it had been, witness and Gilvin, in passing within ten feet of that pile would certainly have seen it.</p> <p>A witness for the defense testified that, to his positive knowledge, the defendant, when he moved to Clay county from Tarrant county, brought with him the double and single trees of an Osborn mowing machine, and afterwards used them on his wagon. The witnesses for the defense testified, and counsel for the State admitted, that the reputation of the defendant for honesty was excellent until this charge was brought against him.</p>

Tried below before the Hon. T. H. Conner. . This conviction was for an attempt to pass a forged instrument, knowing it to be forged, and the penalty assessed by the jury was a term of two years in the penitentiary. The instrument, as set out in the indictment, and as introduced in evidence, reads as follows: “No. 72 Baird, Texas, 12—28, 1888. First National Bank of Baird: Pay to James Leeper or bearer one hundred and fifty-four dollars. R. B. Dobson. $154.00” W. 0.

Tried below before the Hon. C. K. Bell. This conviction was for horse theft, the penalty assessed by the verdict being a term of seven years in the penitentiary. The rulings of this court do not involve the facts proved on the trial.

Tried below before the Hon. J. V. Cockrell. This conviction was for perjury, and the penalty assessed by the verdict was a term of five years in the penitentiary.

Tried below before the Hon. J. V. Cockrell. The first count of the indictment charged the theft, and the second the illegal branding, of two head of cattle, the property of S. J. Pate. The conviction was had upon the second count, the penalty assessed being a term of two years in the penitentiary. Hiram Gilbert was the first witness for the State.

Tried below before the Hon. E. E. Burke. The indictment in this case was filed on the thirteenth day of April, 1888. It charged the appellant with the murder of M. Benedikt, in Balias county, Texas, on the twenty-second day of Starch, 1888.