Volume 28 — Texas Court of Appeals Reports

Tried below before Hon. P. M. Stine. This conviction was had under the second count of the indictment, which charged the appellant as an accomplice to the theft of a horse by one John Williams. The penalty assessed against the appellant was a, term of five years in the penitentiary. In 27 Texas Court of Appeals, on page 466, will be found the report of the case of John Williams v. The State, on appeal from a conviction for the theft of two horses, the property of one Heineke.

Tried below before Hon. F. E. Adams, County Judge. The conviction in this case was for unlawfully carrying a pistol, and the penalty assessed by the verdict was a fine of twenty-five dollars and twenty days in the county jail. Mary R Renfro was the first witness for the State. She testified that she was the mother of Annette Baker, the wife of Julius Baker, who was the brother of the defendant.

Tried below before Hon. M. W. Johnson, County Judge. The opinion states the nature of the case. The penalty assessed against-the appellant was a fine of one hundred dollars. It is not essential to this, report that the evidence adduced on the trial be summarized.

Tried below before Hon. W. W. Evans, County Judge. This is the second appeal by the appellant from convictions for misdemeanor theft. Donahoe v. The State, 23 Texas Ct. App., 457. The penalty assessed on this trial was a fine of fifty dollars and confinement in the county jail for one day. E. Littlefield testified for the State that in July, 1886, he started to Waco with a load of wood.

Tried below before Hon. John RT. Henderson. This conviction was in the second degree for the murder of Jay Folk, a Chinaman, in Robertson County, Texas, on the 22d day of August, 1888. The penalty awarded the appellant was a term of five years in the penitentiary. Lee Chop, a Chinaman, was the first witness for the State. He testified in substance that he last saw Folk alive on the evening of August 22, 1888.

Tried below before Hon. E. W. Terhune. The indictment in this case charged the appellant with the murder of ' Joseph P. Akeridge, in Collin County, Texas, on the twenty-sixth day of August, 1886. The conviction was for manslaughter, and the penalty assessed wgs a term of three years in the penitentiary. The proof shows that on the day alleged in the indictment the deceased was killed on a public road in Collin County, Texas.

<p>Habeas Corpus on appeal from the Criminal District Court of Harris. Tried below before Hon. 0. L. Cleveland.</p> <p>The opinion sufficiently discloses the case.</p>

Tried below before Hon. J. M. Hall. The recognizance in this case recites the indictment of A. J. Hand for cattle theft, the amount of the recognizance and judgment being five hundred dollars.

<p>Appeal from the District Court of Wilbarger. Tried below before Hon. G. A. Brown.</p> <p>The conviction in this case was for horse theft, and the penalty assessed was a term of eight years in the penitentiary. The disposition of the questions raised on appeal does not require a statement of the facts proved.</p>

Tried below before Hon. J. M. Hall. The conviction in this case was for the theft of a mare, and the penalty assessed was a term of five years in the penitentiary. R. H. Edmonson was the first witness for the State. He testified that he was the owner of the mare which by the indictment was alleged to have been stolen on the 15th day of October, 1883. At the same time, and prior thereto, he was also the owner of a certain recipe for making soap.

Tried below before Hon. J. hi. Henderson. The appellant and W. R. Brown were jointly indicted for the murder of M. McCoy, in Eobertson County, Texas, on the 18th day of May, 1888. Being alone upon trial the appellant was convicted of murder in the second degree and his penalty was assessed at a term of eleven years in the penitentiary.

Tried below before Hon. A. W. Moursund. The conviction in this case was for the theft of a cow, the property of Paxton and McClure. The penalty assessed against the appellant was a term of two years in the penitentiary.

<p>Habeas Corpus on appeal from the County Court of El Paso. Tried below before Hon. J. E. Townsend, County Judge.</p> <p>The opinion fully discloses the case.</p>

Tried below before Hon. E. T. Terral, County Judge. The conviction was for unlawfully carrying a pistol, and the penalty assessed was a fine of $25 and twenty days in the county jail. The opinion discloses the case.

Tried below before Hon. A. W. Moursund. Under an indictment charging him with the murder of Thomas Selman, in San Saba County, Texas, on the 30th day of August, 1886, the appellant was convicted of manslaughter, his punishment being assessed at a term of five years in the penitentiary.

Tried below before Hon. J. M. Hall. The conviction in this case was for burglary, and the penalty assessed by the verdict was a term of three years in the penitentiary. The opinion discloses the case.

<p>Appeal from the District Court of Wilbarger. Tried below before Hon. G. A. Brown.</p> <p>The opinion states the case. The penalty assessed was a term of five years in the penitentiary.</p>

Tried below before Hon. E. T. Terral, County Judge. The opinion sufficiently discloses the case. The penalty assessed against the appellant was a fine of one dollar.

Tried below before Hon. DP. Marr. This conviction was for the theft of Brown’s bay mare, and the penalty assessed was a term of five years in the penitentiary. Under the questions discussed in the opinion of the court it is unnecessary to state any more of the evidence adduced on the trial than that pertaining to the confession of the defendant, all of which is condensed in the testimony of the State’s witness Harkness.

Tried below before Hon. H. 0. Head. The indictment charged the appellant with the rape of Mrs. Maggie Miles in Sherman, Grayson County, Texas, on the night of Wednesday, June 6, 1888. His trial resulted in his conviction, and he was awarded a life term in the penitentiary.

<p>Appeal from the District Court of Bosque. Tried below before Hon. J. M. Hall.</p> <p>This appeal is from a final judgment on the forfeiture of the bail bond of D. B. Brown, bailed under an indictment charging him with embezzlement. Five hundred dollars was the amount of the bond and judgment.</p>

Tried below before Hon. John H. Henderson. The conviction in this case was for the theft of six hundred and fifteen dollars in money, the property of George Miller. The penalty assessed by the verdict was a term of five years in the penitentiary. George Miller testified for the State in substance that in November, 1888, he lived in a “dug-out ” in Holán County, Texas. Defendant and his brother John White were living with the witness at that time.

Tried below before T. D. Montrose, Esq., Special Judge. This conviction was for murder of the first degree, a life term in the-penitentiary being the the penalty assessed against the appellant. With the exception of the facts noted below the case against the appellant appears from the narrative of Essie Puryear, whose testimony in chief is embodied in the opinion of the court.

Tried below before Hon. J. H. Henderson. This conviction was in the second degree for the murder of G. L. Pool, and the penalty assessed by the verdict was a term of ten years in the penitentiary. Stated in brief, the evidence for the State shows that, acting under the orders of the sheriff of Milam County, Deputy Sheriffs J. H. Bickett and G-. L. Pool, with a posse of five men, went to the house of Ira Bounds to arrest the defendant for unlawfully carrying a pistol.

Tried below before Hon-W. S. Maxwell, County Judge. The opinion states the case. A fine of twenty-five dollars was thp penalty assessed.

Tried below before Hon. J. FT. Henderson. This conviction was for the theft of a mule, and the penalty assessed by the verdict was a term of seven years in the penitentiary.

Tried below before Hon. W. A. Blackburn. This conviction was for horse theft, and the penalty assessed by the verdict was a term of ñve years in the penitentiary. The opinion sufficiently discloses the case.

Tried below before Hon. J. M. Brackenridge, County Judge. The opinion discloses the case. The penalty assessed was a fine of five-dollars.

<p>1. Practice — Carrying Arms About Elections — Interpretation of the Codes.—The doctrine is well established that in the interpretation of a penal statute the courts must be controlled by the legislative intent—otherwise, the spirit of the law—and hence, although an act or omission may come within the strict letter of a statute denouncing an offense, such act or omission will not be held to he an offense if it comemot also within the intent or spirit of the law. Under this rule, article 163 of the Penal Code, denouncing the offense of carrying arms on an election day, during the hours the polls are open, within one-half mile of a poll or voting place, can not be construed to abridge the right to so carry arms when the purpose and intent of the act is protection against apparent, present, and serious danger to human life, then about to be inflicted.</p> <p>2. Same—Charge of the Court.—On his trial for the offense denounced by article 163 of the Penal Code, the defendant requested a special instruction as follows: “ If you find from the evidence that the defendant carried a pistol within a distance of one-half mile of the Birdville voting box, during the time the polls were open, and that before he so carried the pistol his brother, Jim Barkley, was in a difficulty at or near such voting box; and that defendant saw him retreating with a number of persons apparently pursuing him, and apparently about to do serious bodily injury to his said brother; and that defendant, reasonably believing from such appearance, as viewed from his standpoint, that his said brother was actually in danger of serious bodily injury, then took the pistol and went to the defense of his brother against such apparent danger, and for that purpose only, then in case you so find you must acquit the defendant.” Held, that the said requested instruction states a case which would withdraw the act of carrying the pistol from the operation of the spirit of article 163 of the Penal Code, and responding to the evidence on the trial, the special instruction should have been given.</p>

Tried below before Hon.. W. D. Harris, County Judge. The opinion discloses the case. The penalty assessed against each of the defendants was a fine of twenty-five dollars and confinement in the-, county jail for ten days.

Error from the County Court of Tarrant. Tried below before Hon. Sam Furman, County Judge. The opinion discloses the nature of the case. The amount of the bond and judgment tvas one hundred dollars.

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

Tried below before Hon. R. E. Burke. The conviction was for the theft of a watch of value exceeding twenty dollars, and the penalty assessed was a term of three years in the penitentiary. The questions decided on this appeal do not require a statement of the proof other than that embodied in the opinion.

Tried below before Hon. Rufus Hardy. The indictment charged the murder of Sam. Dean. The conviction was for manslaughter, the penalty assessed being a term of two years in ihe penitentiary. The fatal difficulty occurred during the progress of an entertainment at the house of John Brown, in Freestone County. Brown testified that early in the night the defendant told him that Sam.

Tried below before Hon. L. B. Hightower. The appellant was convicted in the first degree for the murder of J. C. Dacour, his punishment being assessed at a life term in the penitentiary. The one question determined on this appeal was the competency as evidence of a certain statement made by the defendant, and it is not necessary that the case should be more fully stated than is required by the ruling.

Tried below before J. E. Lanier, Esq., Special Judge. The conviction in this case was in the first degree for the murder of Louis Drake, the penalty assessed by the verdict being a life term in the penitentiary. Caroline Chambers was the first witness for the State.

<p>1. Practice—New Trial—Misconduct of the Jury.—One of the statutory grounds for a new trial is “ where, from misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial.” The statute further provides that it “shall be competent to prove such misconduct by the voluntary affidavit of a juror; and a verdict may in a like manner in such cases be sustained by such affidavit.” Separation of the jury, unless by permission of the court, with the consent of the opposing counsel, in charge of an officer, is a species of misconduct coming within the operation of the rule.</p> <p>2. Same—Separation of the Jury.—-The probable effect upon the verdict is the criterion by which the courts should be governed in passing upon a motion for a new trial based upon .the illegal separation of the jury pending verdict. The new trial should be awarded because of such misconduct, unless the improbability of injury be manifest. See this case in illustration.</p>

Tried below before Hon. J. R. Dickinson. The opinion, together with the third head note, sufficiently discloses the case. A term of two years in the penitentiary was the penalty assessed by the verdict.

- Appeal from the District Court of De Witt. Tried below before Hon. H. C. Pleasants. Under an indictment charging him with the murder of Campbell Taylor, the appellant was convicted of manslaughter, his penalty being affixed at a term of four years in the penitentiary. Ed. Taylor was the first material witness for the State.

Tried below before Hon. J. 0. Russell. The conviction was in the first degree for the murder of Alejandro Vidaurri, and the penalty assessed by the verdict was a life term in the penitentiary.

Tried below before Hon. A. J. Booty. This conviction was in the second degree for the murder of Jordan Childs, in Harrison County, Texas, on the 9th day of September, 1889. The penalty assessed against the appellant was a term of fifteen years in the penitentiary. - Justice of the peace Perry was the first witness for the State. He testified that he examined the body of the deceased on the night of the fatal day.

Tried below before J. S. Straughan, Esq., Special Judge. This conviction was for misappropriation of public funds, and the penalty assessed by the verdict was a term of four years in the penitentiary.

Tried below before Hon. J. W. Patterson. This conviction was for burglary, and the penalty assessed was a term of two years in the penitentiary. The opinion of the court states the proof involved in the rulings.

Tried below before Hon. George McCormick. The conviction was for arson, and the penalty assessed against the appellant was a term of five years in the penitentiary. The questions determined on this appeal do not require a statement of the evidence adduced on the trial.

Tried below before Hon. W. H. Ford. The conviction in this case was in the second degree for the murder of Frank Hughs, and the penalty assessed by the verdict was a term of five years in the penitentiary. The questions determined on this appeal do not involve the evidence adduced on the trial.

Tried below before Hon. J. V. Cockrell. The indictment charged the appellant as an accomplice to cattle theft. His trial resulted in conviction, and his penalty was fixed by the' jury at .a term of two years in the penitentiary. Ho question of proof on the trial is involved in the opinion of the court.

Tried below before Hon. 0. L. Cleveland. The conviction in this case was in the second degree for the murder of Eobert Crawford, the penalty assessed by the verdict being a term of twelve years in the penitentiary. The proof shows that the homicide occurred in the city of Galveston, about 3 o’clock on the afternoon of December 26, 1888.

Tried below before Hon. W. D. Harris, County Judge. The conviction was for unlawfully carrying a pistol, and the penalty assessed by the verdict was a fine of $25 and twenty days in jail. The State proved by its witness Pat Stevens, a policeman, that he'arrested defendant in the city of Port Worth, on November 17, 1888, and on his person found a 45-calibre Colt’s pistol. Dick Burnes was the first witness for the defense.

Tried below before Hon. J. W. Patterson. The conviction in this case was for the theft of a mare, the property ■of J. L. Voiles. The penalty assessed by the verdict was a term of five years in the penitentiary. Succinctly stated, the proof for the State establishes the ownership of the animal as alleged in the indictment, and shows that she was taken ■from her accustomed range about the time alleged.

Tried helow before Hon. J. W. Patterson. The conviction in this case was in the second degree for the murder of. Jack Connell, in Wise County, Texas, on the 27th day of May, 1889. The penalty assessed against the appellant was a term of sixteen years in the penitentiary. Mr. Watson, the first witness for the State, testified that he and ¡Nelson were, joint proprietors of a saloon in Rhome, Wise County, Texas.

Tried below before J. H. Wood, Esq., Special Judge. The opinion discloses the nature of the case. The penalty assessed against the appellant was a term of two years in the penitentiary. The rulings of the court do not require a statement of the proof on the trial.

Tried below before Hon. T. H. Conner. A term of five years in the penitentiary was the penalty assessed against the appellant upon his conviction for robbery, under an indictment, the -charging part of which reads as follows: “W. A. Clark * * * did then and there, upon the persons of C. W. Churchwell and J. A. Taylor, Unlawfully, wilfully, and feloniously make an assault, and them, the said C. W. Churchwell and J. A. Taylor, by means of said assault, and by violence, in fear…

<p>1. Indictment—Pleading.—It is a rule of criminal pleading that the time mentioned in the indictment as the date of the offense must he a time anterior to the filing of the indictment but not so remote that the prosecution of the offense is barred by limitation.</p> <p>2. Practice—Evidence.—The rule is fundamental that the proof must correspond with the allegations. This rule, however, is not so inflexible that it requires the evidence to fix the time of an offense precisely as alleged. It is sufficient if it fixes the time within the period of limitation, and anterior to the presentment of the indictment. This indictment, which was filed June 11, 1888, charged that the offense was committed June 8, 1888. But the proof tends to fix the date of the offense in June, 1889. Held, not to support the allegation of time.</p> <p>3. Same—Practice in the Court of Appeals.—The appellate court in determining the proof in a given case must regard as conclusive the recitals of the statement of facts on that particular appeal, unless the same be confuted by the recitals of a sufficient and properly authenticated bill of exception, in which event the bill of exception will control. The record on a former appeal of the same case can not be consulted to explain, modify, or supply evidence on the pending appeal.</p> <p>4. Same—Receiving Stolen Property, etc.—Charge of the Court authorized the jury to convict if they found from the evidence that the acts charged against the accused were committed by him in June, 1889—a propostion supported by the proof in the case, but not by the allegations of the indictment. Held, error; and further, that the said erroneous charge not being withdrawn, the submission of a special charge, requiring the proof to conform to the indictment, could not operate to cure the error in the main charge. Note the distinction between this and McCoy’s case, 7 Texas Court of Appeals, 379,</p> <p>5. Same—Ownership.—The indictment alleged the ownership of the stolen property in the agent of the express company. Held, correct, in view of the proof showing that the said agent had the exclusive care, control, and management of the same.</p> <p>6. Practice—Former Jeopardy.—The previous trial of the accused resulted in a .disagreement of the jury. The defendant in person expressly agreed to the discharge of the jury upon condition, which was complied with, that the case should stand continued until the next term of the court. On this trial the accused pleaded his said former trial as jeopardy. Held, that the plea was without merit, there being no rule of law prohibiting the discharge of a jury by the personal consent of the accused.</p>

Tried below before Hon. John N. Henderson. The appellant was convicted of manslaughter under an indictment which charged him with the murder of J. M. Joiner, in Robertson County, Texas, on the third day of November, 1888. The penalty assessed by the verdict was a term of five years in the penitentiary. The street in the town of Bremond on which the killing occurred runs north and south. Schmidt’s saloon is situated on the east side of the street and faces west.

Tried below before Hon. J. M. Hall. The conviction in this case was for an assault with intent to murder John Bennett. A term of two years in the penitentiary was the penalty .assessed by the verdict. The opinion sufficiently discloses the case.

Tried below before Hon. E. W. Terhune. This conviction was in the second degree for the murder of John Ladd, and the penalty assessed by the verdict was a term of sixteen years in the penitentiary. The evidence pertinent to the rulings of this court is sufficiently stated in the opinion.

<p>Theft—Evidence.—See the opinion for the substance of evidence held insufficient to support a conviction for cattle theft.</p>

Tried below before T. M. Campbell, Esq., Special Judge. The conviction was for forgery, and the penalty assessed against the appellant was a term of two years in the penitentiary.

Tried below before Hon, B. B. Beaird, County Judge. The opinion states the case. A fine of $35 was the penalty assessed by the verdict.

Tried below before Hon. J. R. Dickenson. The appellant was convicted under the second count of the indictment charging him with an attempt to rape Mary Ann Regian, in Falls County, Texas, on the 28th day of January, 1888. A term of two years in the penitentiary was the penalty assessed against him.

Tried below before Hon. B. McDaniel, County Judge. The opinion discloses the case. The penalty imposed upon the appellant was a fine of one hundred dollars.

Tried below before Hon. John Vesey, County Judge. The conviction m this case was for slander by imputing to Ellen Goodman, an unmarried female, a want of chastity. The penalty imposed by the verdict was a fine of one hundred dollars and confinement in the . county jail for twenty days.

Tried below before Hon. John S. Spinks, County Judge. This conviction was for illegally practicing medicine, and the penalty assessed against the appellant was a fine of fifty dollars. The proof shows, in substance, that before practicing as a “ specialist ”' in medicine at the town of Wills Point, in Van Zandt County, the appellant met R. M. Lively, who informed him that he was going that morning to the town of Canton, the county seat of Van Zandt County.

Tried below before B. F. Looney, Esq., Special Judge. This conviction was had under the second count of an Indictment, which said count charged the appellant with receiving from Lum Freeze, and concealing, a certain beef steer, the property of S. A. Montgomery, knowing the said beef steer to have been stolen. A term of two years in the penitentiary was the penalty assessed by the verdict. W. J. McCray was the first witness for the State.

<p>1. Habeas Corpus—Right of Bail—“ Capital Offense.”—Section 11 of the Bill! of Bights provides: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses, where the proof is evident.” Article 55 of the Penal Code defines a “capital offense” as one “for which the highest penalty is death,” and article 609 of the Penal Code declares murder in the first degree to be a capital offense.</p> <p>2. Same—Non-Age.—It is a sound legal principle that “ whenever the death penalty is abolished by law, the offense to which it was attached is no longer a capital offense.” Under our statutes (Penal Code, article 35,) a person who commits murder in the first degree before he arrives at the age of seventeen years can not be punished capitally, that is, with death. By force of the statute, murder of the first degree, committed by a person under the age of seventeen years, is not a capital offense, and is. therefore bailable.</p> <p>3. Same—Constitutional Law.—Article 35 of the Penal Code, abolishing capital punishment as to an offender under the age of seventeen years, is constitutional.</p>

Tried below before Hon. O. L. Cleveland. The conviction in this case was in the first degree for the murder of Mary K. Brown, in Wharton County, Texas, on the seventh day of December, 1887. The penalty assessed by the verdict was a life term in the penitentiary.

Tried below before Hon. J. M. Hall. The indictment charged the appellant with the murder of John Dee, in Bosque County, Texas, on the 15th day of May, 1871. The trial resulted in his conviction in the first degree, and a life term in the penitentiary was the penalty assessed. The syallabus and opinion summarize the substance of the testimony upon which all of the rulings save that announced in the last head note are predicated.

<p>1. Habeas Corpus—Jurisdiction.—The Constitution of this State empowers district judges to issue the writ of habeas corpus in felony cases, and the power thus conferred carries with it the jurisdiction to hear and determine the rights involved in the writ.</p> <p>2. Same.—Unless otherwise limited by law, the jurisdiction of a district judge as to the subject matter involved in the writ of habeas corpus is coextensive with the limits of the State. He can issue the writ of habeas corpus to the officers of any county in the State; and, sitting in chambers, he may try the writ in any county in this State, unless prohibited by law.</p> <p>3. Same.—When, as in this case—the writ involving a charge of felony—the jurisdiction of the district judge of the subject matter of the writ is beyond question, no question can be raised as to Ms jurisdiction of the person of the relator, the relator having consented.</p> <p>4. Same — Jurisdiction of the District Courts of Dallas County—Case Stated.—On January 19, 1889, separate indictments for the murder of B. were returned against the relator and J., and filed in the District Court of Dallas County, the whole of which county at that 'time comprised the Fourteenth Judicial District. In February, 1889, the Legislature created the Forty-fourth Judicial District, comprising a part of Dallas County; to the judgeship of wMch new district the Hon. C. F. Tucker was appointed. He took the oath of office, and caused Ms comimssion to be entered upon the minutes of the new District Court on July 6, 1889. When the act creating the new District Court went into effect, the clerk of the District Court of Dallas County, in pursuance of the said act, made from the docket of the Fourteenth Judicial District Court the docket of tne old and the new District Courts, apportioning, under the alternating system prescribed by the act, the indictment against the relator to the Fourteenth, and the indictment against J. to the Forty-fourth Judicial District Court. On June 20, 1889, J. applied for and was granted a writ of habeas corpus by the Hon. R. E. Burke, judge of the Fourteenth Judicial District, who made the same returnable • before him on July 12, 1889. The hearing of the same, however, was postponed to July 31. On July 19 the relator applied to Judge Burke for the writ of habeas corpus, which was granted and made returnable before him on July 31. Judge Burke being absent on the said July 31, Judge Tucker, on the request of Judge Burke, heard the • cases together, in chambers, and remanded the relator and awarded bail to J. The - record shows the consent of the relator to the hearing of his writ by Judge Tucker. From this judgment the relator appealed, and the “ Tucker record” is before this, court. On August 3, 1889, repudiating Judge Tucker’s jurisdiction, the relator applied to Judge Burke again for the writ of habeas corpus; its issuance was waived by the sheriff, and at the hearing, on October 7, 1889, Judge Burke, with all of the evidence before him, refused to pass upon the question of Judge Tucker’s jurisdiction, and remanded the relator to custody, from which judgment the relator appeals on the ■ “ Burke record.” Relying upon article 137 of the Code of Procedure, which provides, in effect that the writ of habeas corpus awarded after indictment must be made return able in the county where the offense was committed, the counsel for the relator contend that, there being two District Courts in Dallas County, the writ awarded after-indictment, within the meaning of said article 137, must be returned to the District. Court in wMch the indictment was pending; or, that court not being in session, then before the judge of that court; citing article 138 of the Code of Procedure in support of the propositions. Held, that the propositions are not tenable, and that the said article 188 is merely directory. See the opinion in extenso upon the whole question, upholding the jurisdiction exercised by Judge Tucker, and the validity of the proceedings before him.</p>

<p>Appeal from the District Court of Bilis. Tried below before Hon.. Anson Rainey.</p> <p>The opinion discloses the case. The amount of the bond and judgment was $1000.</p>

Tried below before Hon. B. B. Beaird, County Judge. The opinion discloses the case. The penalty assessed against each of the defendants was a fine of fifty dollars.

<p>Appeal from the District Court of Brazos. Tried below before Hon. J. X. Henderson.</p> <p>The opinion discloses the case.</p>

<p>1. Infanticide—Evidence.—To warrant the conviction of the defendant (the alleged mother) of infanticide it devolved upon the State to prove that the child was horn alive; that it had an existence independent of its mother, and that afterwards its life was destroyed by the act, agency, or procurement of its mother.</p> <p>2. • Same—Confessions,—The Corpus Delicti consists not merely of an objective crime, but of the defendant’s agency in the commission of the crime; and it is an established principle of law that unless the corpus delicti in both these respects is proved, a confession is not of itself enough to sustain a conviction. To be sufficient, such confession must be corroborated, which may be done by circumstantial evidence. See the opinion for the substance of the evidence on the trial held insufficient to corroborate the confession, and therefore not to establish the corpus delicti; and, ergo, insufficient to support the conviction.</p>

Tried helow before Hon. E. D. McClellan. This conviction was in the first degree for the murder of Andrew Shearon, the death penalty being assessed against the appellant. The proof shows that the deceased was the proprietor of a saloon situated on the east side of South Main Street, near the Texas & Pacific Railroad depot, in the city of Paris, the said depot being about three-quarters of a mile distant from the public square.

Tried below before Hon. Felix J. McCord. The death penalty was assessed against the appellant upon his conviction in the first degree for the murder, in Titus County, Texas, on the 10th day of December, 1888, of James R. King, and M. A. M. King, .and Armina King, and J. B. King, and T. W. King, and C. W. King, and J. E. King, and Ida E. King. The evidence bearing upon the rulings of the court is fully stated in ihe opinion of the court.

Tried below before Hon. 0. C. Garrett. This conviction was in the first degree for the murder of Ed Brackens, the penalty -assessed being a life term in the penitentiary. W. J. Johnson was the first witness for the State. He submitted a diagram of the country immediately surrounding the place of the killing. See page 325. The witness testified, in substance, that lie lived in the town of Burton, in Washington County. B. 0.

Tried below before Hon. A. W. Moursund. The opinion discloses the nature of the case. The penalty assessed against the appellant was a term of two years in the penitentiary.

Tried below before Hon. T. M. Paschal, The indictment charged the appellant with the theft of a horse; the property of A. Cagnion. The conviction was for wilfully driving stock from its accustomed range without the consent of the owner, and with the intent to defraud the owner thereof. The penalty assessed by the verdict was a term of two years in the penitentiary.

Tried below before Hon. C. C. Garrett. The conviction was for the theft of a cow, and the penalty assessed was a term of two years in the penitentiary. State witnesses R H. Jones and W. T. Hewman testified, in substance, that on the morning of August 15, 1888, they found the freshly removed hide of a cow secreted in a thicket near the East Yegua, in the edge of Burleson County. It was the hide of a red cow with white flanks. The-ears had been cut off and the brand cut out.

Tried below before Hon. C. C. Garrett. The death penalty was assessed against the appellant upon his conviction in the first degree for the murder of his wife, Fannie Murphy. Cy. Johnson testified for the State in substance, that he was present and witnessed the cutting of Fannie Murphy by the defendant, her husband. It occurred a few minutes after defendant’s return from the Tew bottom, where he had been several days at work.

Tried below before Hon. C. K. Bell. The conviction was for horse theft, and the penalty assessed was a term of six years in the penitentiary. The opinion discloses the case.

Tried below before Hon. T. M. Paschal. This conviction was for horse theft, and the penalty assessed by the verdict was a term of five years in the penitentiary. The ruling involved in the opinion does not require a statement of the facts proved.

Tried below before Hon. O. K. Bell. The conviction was for assault with intent to murder one John Mouchett, and the penalty assessed by the verdict was a term of two-years in the penitentiary.

<p>1. Practice—Cumulative Sentences.—Under the provisions of article 800 of the Code of Procedure cumulative terms of imprisonment adjudged at the same term of court shall he so tacked that the subsequent term shall begin at the expiration of the preceding one. Unless so provided in the judgment the terms became concurrent, and the imprisonment as to both (or all) sentences commence to run and expire at the same time. See this case in illustration.</p> <p>2. Same—Pecuniary Penalty — Discharge of Same by Imprisonment.— Article 816 of the Code of Procedure provides, in effect, that if a defendant convicted of misdemeanor maltes oath in writing of his inability to pay the pecuniary fine assessed against him, and the county authorities fail to hire him out, or to put him to labor in accordance with the law regulating county convicts, he shall be imprisoned in the county jail a sufficient length of time to discharge the full amount of fine and costs adjudged against him, rating such punishment at three dollars per day.</p> <p>3. Same—Case Stated.—Two pecuniary judgments in the County Court against the relator aggregated the sum of §107.50. Imprisonment on account of the fines began October 14. On October 16 the relator made affidavit of his inability to pay the said fines. The county authorities did not put him to manual labor nor hire him out, and he remained in custody under the said judgments of the County Court until December 1, a period of forty-six days. Held, that under the facts the relator was entitled to a credit of three dollars per day for the said forty-six days of imprisonment, which more than discharged the aggregate fines assessed by the judgments of the County ■Court.</p> <p>4. Same.—Pending his imprisonment under the judgments of the County Court the relator, under an indictment for assault to murder, was convicted in the District Court of aggravated assault, the fine and costs assessed against him aggregating §383.44. "The judgment in this case became final on December 1, and on December 3 he was put to manual labor on the county farm, where he labored for 240 days, at the end of which time he was released upon his agreement to pay the county at the rate of five dollars per month until he should discharge the amount claimed by the county to be due on the three judgments. But held, that under the provisions of article 3597 of the Revised 'Statutes the relator was entitled to a credit of one dollar per day for the 240 days he labored, and therefore had overpaid the fine and costs when released upon his said .agreement.</p> <p>5. Same.—But in support of the action of the county authorities the State relied upon the Act of March 7, 1889, which, amending article 3597 of the Revised Statutes, reduced to fifty cents per day the amount of credit allowable to a misdemeanor convict for county labor. Held, that as the judgments against the relator were rendered in 1888, the said Act of March 7, 1889, would be ex post facto as to said judgments.</p> <p>6. Same—Habeas Corpus.—Failing and refusing to abide his agreement, the relator was arrested on a capias pro fine and placed in custody. He sued out the writ of habeas corpus for discharge, but upon the hearing of the same by the county judge he was remanded to custody. Held, that, under the facts of the case, the ruling was error.</p>

Tried below before Hon. E. D. McClellan. The conviction was for fraudulently disposing of mortgaged property, and the penalty assessed was a term of two years in the penitentiary.

Tried below before Hon. D. E. Barrett. The conviction was for theft, and the penalty assessed against the appellant was a term of two years in the penitentiary. The rulings on this appeal do not require a statement of the facts proved.

. Tried below before Hon. J. W. Patterson. The conviction was for burglary, and the penalty assessed against the appellant was a term of two years in the penitentiary.

<p>Theft—Evidence—Charge of the Court.—Proof of the contemporaneous theft of other property than that for the theft of which the defendant is on trial is not admissible unless such proof conduces to establish identity in developing the res gestee, or to prove the guilt of the accused by circumstances connected with the theft, or to show the intent with which the defendant acted with respect to the property for the theft of which he is on trial. When such proof is admitted for either of the legitimate purposes indicated, the charge of the court must apprise the jury of the purpose of the proof, and that they can not convict defendant for the theft of any other property than that named in the indictment. In failing to so instruct the jury in this case, and in refusing a special charge to supply the omission, the trial court erred.</p>

<p>Habeas Corpus—Bail—Evidence.—In fixing the amount of bail in a given case the judge or magistrate, amongst other things, must be governed by the nature of the offense and the circumstances under which it was committed. In this proceeding for bail the State admitted the offense charged to be bailable, whereupon the relator proposed to adduce evidence as to the nature of the offense and the circumstances under which it was committed, which evidence was rejected by the judge below. Held, error.</p>

Tried below before Hon. J. M. Hall. The conviction was for horse theft, and the penalty was a term of five years in the penitentiary.

Tried below before Hon. H. 0. Pleasants. The conviction was for cattle theft, and the penalty assessed was a term of five years in the penitentiary.

<p>1. Constitutional Law.—Municipal Corporations can exercise no powers but those which are conferred upon them by the act by which they are constituted, or such as are necessary to the exercise of their corporate powers, the performance of their corporate duties, and the accomplishment of the purposes of their association. The charter of a municipal corporation is its organic act, and furnishes the measure of its power. The corporation can exercise no power which the charter does not grant in express words, or which is not necessarily or fairly implied in or incident to the powers expressly granted, or which are not essential to the declared objects and purposes of the corporation.</p> <p>2. Same.— As to Repeal by Implication a correct rule is stated as follows: “ The presumption is not lightly to be indulged that the Legislature has by implication repealed, as respects a particular municipality, or as respects all municipalities, laws of a general nature elsewhere in force throughout the State; yet a charter or special act passed subsequent to the general law, and plainly irreconcilable with it, will to the extent of the conflict operate a repeal of the latter by implication. But by a well known rule, founded on solid reasons, such repeals are not favored; and the principle of implied repeal ought to be applied with extreme caution.”</p> <p>3. Same.—In determining the power of a municipal corporation to enact a particular ordinance, the charter by which it is claimed such power is conferred should receive a reasonable construction—that is, a construction which accords with the intention of the Legislature—and all reasonable intendments in support of the validity of the ordinance will be indulged. Under the above rules it is held that sections 72, 78, and 98 of the charter of the city of San Antonio (for which see the opinion) do not operate to repeal within the limits of said city articles 339, 340, and 341 of the Penal Code; nor to empower the said city, through its council, to enact an ordinance licensing bawdy houses. The power to regulate, suppress, and restrain bawdy houses does not carry with it the power to license such houses.</p> <p>4. Same—Bawdy Houses—Statutes Construed.—While the offense denounced by article 341a of the Penal Code is in contemplation of law the same as that denounced in article 341, yet the acts constituting it are different; and that different punishments are prescribed for different acts constituting the same offense, in a different degree, or "by different classes of persons, is not objectionable legislation. The ordinance enacted by the city council of the city of San Antonio entitled “An ordinance to suppress and restrain bawdy houses within the limits of the city of San Antonio” is repugnant to article 341 of the Penal Code, and therefore void.</p>

Tried below before Hon. J. JR. Dickenson. The conviction was in the second degree for the murder of Charley Gaines, and the penalty assessed by the verdict was a term of twenty years in the penitentiary. It is only necessary under the rulings on this appeal to state the case fully enough to elaborate the ruling announced in the fourth head note.

Tried below before Hon. J. M. Hall. This conviction was in the second degree for the murder of John How.ard, in Johnson County, Texas, on August 12, 1888. The penalty assessed against the appellant was a term of eight years in the penitentiary. Mrs. Bettie Howard, the wife of the deceased, testified for the State, in substance, that she was the sister of the defendant.

Tried below before Hon. J. M. Hall. The appellant was convicted in the second degree for the murder of J. F. Yarbrough, and his punishment was assessed at a term of thirty-five years in the penitentiary. A. S. Turner was the first witness for the State. He testified, in substance, that he lived within a mile of the house occupied by the deceased and his family. Deceased was killed after night on September 16,1887.

<p>Appeal from the Criminal District Court of Galveston. Tried below before Hon. C. L. Cleveland.</p> <p>The opinion fully discloses the case.</p>

Tried below before Hon. J. 0. Russell. This conviction was in the first degree for the murder of J. 1ST. Hui-do oney, and the penalty assessed was a life term in the penitentiary. The opinion sufficiently states the case.

Tried below before Hon. J. H. Henderson. This conviction was for murder in the second degree, and the penalty assessed by the verdict was a term of five years in the penitentiary. So far as the facts are involved in the rulings, they are sufficiently stated in the opinion of the court.

<p>1. Scire Facias.—Bail bonds in these cases required the principal to appear before the Criminal District Court of Galveston County on the “first Monday in November, 188.” Held, fatally defective, because it obligates the principal to appear at a time when a legal term of the court could not be held.</p> <p>2. Same—Alteration.—After the bonds were executed, the sheriff, without the knowledge or consent of the sureties, added the figure “9” after the figures “188,” making the year of appearance “1889” instead of “ 188,” as originally written. Held, that the unauthorized addition of the said figure by the sheriff vitiated the bond.</p> <p>On Motion for Rehearing.</p> <p>3. Same—Cases Obsolete.—Prior to the adoption of the codes a bail bond was sufficient if it obligated the principal to appear at the-court of the proper county at the next term thereof. Such, however, is not now the law, and the cases of Brite v. The State, 24 Texas, 219, and Wilcox v. The State, Id., 544, decided under the old law, are obsolete. Under the present law the bond must state the time, place, and court when, where, and before which the defendant is bound to make his personal appearance. The court can not treat an objectionable condition as mere surplusage. See the opinion for a collocation of authorities on the question.</p>

Tried below before Hon. J. M. Hall. This conviction was in the second degree for the murder of John B. Mc-Lennan, in Somervell County, on the 25th day of December, 1885. The penalty assessed by the verdict was a term of five years in the penitentiary. The homicide was committed in the town of Glen Rose, in the saloon of L. B. McLanahan, a diagram of which appears below: Mart Martin was the first witness for the State.

Tried below before Hon. J. W. Patterson. The appellant was awarded a term of five years in the penitentiary upon his conviction for perjury under an indictment, the charging part of which reads as follows: * * * “Matt Sisk, on or about May 23, 1889, in the county and State aforesaid, did then and there personally appear before the duly organized grand jury for said county, which was then and there in session for the May Term of the District Court for said county, and of…

<p>Constitutional Law—Construction of Statutes.—The rule has been heretofore laid down, and is now re-asserted, that “where an act has been passed by the Legislature, signed by the proper officers of each house, approved by the Governor, and filed in the office of the Secretary of State, it constitutes a record which is conclusive evidence of the passage of the act as enrolled. Neither the journals kept by the Legislature, nor the bill as originally introduced, nor amendments attached to it, nor parol evidence can be received to show that an act of the Legislature, properly enrolled, authenticated, and deposited with the Secretary of State, did not become a law. This court for the purpose of informing itself of the existence or terms of a law can not look beyond the enrolled act certified to by those officers who are charged by the Constitution with the duty of certifying, and with the duty of declaring what laws have been enacted.” Under this rule this court, to inquire into the status of the Act of April 5, 1889, providing for the inspection of oils, etc., can not go behind the authenticated statute itself. But note the opinion to the effect that, in any event, the contention in this case arising upon the conflicting recitals of the journals of the Senate and those of the House of Eepresentatives, said journals being of equal weight and credit, the journals of the House, which sustains the act as promulgated, being supported by corroborative evidence, would be held to prevail.</p>

Tried below before „ Hon. R E. Burke. The conviction was for burglary, and the penalty assessed was a term of eight years in the penitentiary.

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

Tried below before Hon. H. Teichmueller. On the 19th day of October, 1889, an indictment was preferred and returned by the grand jury of Bastrop County against Ike Wilson, Runnels Williams, Bob Thompson, Jesse Johnson, O. W. Wicks, York Aldridge, Fountain Moore, Ben Clark, George Jones, and Milton Nobles for the murder of George Schoeff and Alex. Nolan, in said county, on the 13th day of June, 1889.

Tried below before Hon. J. V. Cockrell. This conviction was in the first degree for the murder of A. Beemer, the penalty of death being assessed against the appellant. The homicide occurred on the 10th day of September, 1887, at the Matador ranche, in Motley County, which county is attached to Crosby County for judicial purposes. B. F. Brock was the first witness for the State. He testified that he lived in Dickens County, about twenty miles distant from the Matador ranche.

Tried below before Hon. J. M. Hall. The conviction was for felony theft, and the penalty assessed was a term of four years in the penitentiary.

Tried below before Hon. E. G-. Bower, County Judge. The penalty assessed against appellant was a fine of $25, and confinement in the county jail for twenty days.

Tried below before Hon., E. G-. Bower, County Judge. The opinion discloses the case. The penalty assessed by the verdict was a fine of $450.

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

Tried below before Hon. H. S. Holman, County Judge. The' opinion sufficiently discloses the case. The penalty assessed by the verdict ivas a fine of ten dollars.

Tried below before Hon. Henry Hardy, County Judge. The opinion states the nature of the case. The penalty assessed by the verdict was a fine of $35.

Tried below before Hon. George McCormick. , The conviction was for placing obstructions upon the track of the Galveston. Harrisburg & San Antonio Railroad. The verdict found the defendant to be aged less than sixteen years, and assessed his punishment at two years in the house of correction and reformatory at Gatesville.

Tried below before Hon. F. A. Williams, on exchange. The opinion states the nature of the case. The penalty assessed against the appellant was a term of seven years in the penitentiary.

<p>Terms of the Criminal District Court of Galveston County.—By provision of article. 1502 of the Revised Statutes, the March Term,'1890, of the Criminal District Court of Galveston County commenced on the first Monday of that month, and, as under the said article it could not continue beyond four weeks, it expired at 12 o’clock on the night of Saturday, March 29, 1890. After that hour it had no existence as a court for that term, and could enter no order, judgment, ruling, decree, or sentence from which an appeal would lie to the appellate court. To avoid a verdict and sentence received and pronounced on Sunday morning after the expiration of the term, the relators in this case, being without appeal, resort to this court for the writ of habeas corpus. Held, that the proceeding is correct, and the writ must be granted But see the opinion in extenso on the question.</p>

<p>Appeal from the County Court of Dallas. Tried below before Hon. E. G. Bower, County Judge.</p> <p>The opinion discloses the case. The penalty assessed was a fine of $100.</p>

Tried below before Hon. • F. A. Williams. The opinion discloses the nature of the case. The penalty assessed by the verdict was a term of two years in the penitentiary. Zach Tolliver, the alleged injured party, testified, in substance, that he and six or seven others, including the defendant, spent the greater part of Christmas Eve night, 1889, playing cards in an apartment in the rear of a saloon in Crockett, Texas.

Tried below before Hon. James Greenwood, County Judge. The information charged an aggravated assault and battery, and the verdict found the appellant “ guilty,” and assessed his punishment at a fine of five dollars.

Tried below before Hon. E. G. Bower, County Judge. The judgment was on the forfeiture of the appearance bond of Frederick Juniper. The amount of the bond and judgment was $200.

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

Tried below before Hon. George McCormick. This conviction was in the first degree for the murder of Jim Walker, the penalty assessed being a life term in the penitentiary.

Tried below before A. A. Kemble, Esq., Special Judge. This conviction was for the theft of a bale of cotton, valued at more than twenty dollars, the property of P. E. King. The penalty assessed against the appellant was a term of two years in the penitentiary. P. E. King testified for the State that prior to December 1, 1883, he sent a quantity of cotton in the seed to Shaffer’s gin to be ginned and baled.

<p>Habeas Corpus on original application to the Court of Appeals, from Harris County.</p> <p>The opinion discloses the case.</p>

Tried below before Hon-J. N. Henderson. This conviction was for the theft of money in excess of §20, and the penalty assessed by the verdict was a term of five years in the penitentiary. The question determined by the appeal does not require a statement of the evidence.

Tried below before Hon. J. T. Evans, County Judge. The conviction was for playing cards in a public place, and the penalty .assessed was a fine of $10. The transcript contains no authenticated statement of facts.

Tried below before Hon. H. 0. Head. This conviction was for .an assault with intent to rob Mrs. E. Wooten, .and the penalty assessed against the appellant was a term of eight years in the penitentiary. Mrs. E. Wooten was the first witness for the State. She testified, in substance, that she lived with her husband and six children about two ;and a half miles from Plano in Collin County.

Tried below before Hon. H. C. Pleasants. This conviction was for perjury, and the penalty assessed by the jury was a term of five years in the penitentiary. A. A. Herriman, city marshal of the town of Goliad, was the first witness for the State. He testified, in substance, that he was informed of the assault upon Sarah Hall by Guy Hall soon after it occurred, and went at once to the scene of the trouble.

<p>Variance—Idem Sonans—Charge of the Court—Case Stated.—It is a settled rule that “whereany question arises concerning the name of the injured party as alleged in the indictment, the practice should be analogous to the practice in the case of a plea of misnomer by the prisoner. The fact should be submitted to the jury, and it would be competent to show, in support of the allegation in the indictment, that the person was as well known by the name used in the indictment as by any other. ” The indictment in this case alleged the name of the injured party to be “Fraude.” The proof showed that it was properly spelled “F-r-e-u-d-e.” An expert linguist testified that the correct German pronunciation of the name “Fraude” was “ Frowdy,” and that “Freude” was correctly pronounced “Froydy,”but was frequently corrupted to “Friday.” The trial court held “Fraude” and “Froydy” to be idem sonans, and refused a special instruction to the effect that the jury should acquit if they believed the name of the alleged injured party was different in sound from the name as alleged in the indictment, to-wit, Fraude. Held, that under the rule above announced the refusal of the special instruction was error.</p>

<p>Intimidation, etc.—Evidence.—This prosecution, was maintained upon an information which, in substance, charged that the accused, by intimidation, etc., unlawfully prevented one C. from removing a fence, the property of C., and situated on C.’s land. The proof shows that the true location of the boundary line between the adjoining lands of the accused was the subject matter of dispute between them, and that the accused refused to permit C. to remove and rebuild the division fence until the division" line between their said lands had been located by survey. The evidence preponderates to locate the dividing line as claimed by defendant, and is therefore insufficient to support the conviction. The rule which applies in theft cases is held to apply to the facts of this case, viz.: “ Where goods are taken under a claim of right, if the prisoner appears to have had any fair color of title, or if the title of the prosecutor be brought into any doubt at all, the court should direct an acquittal.” Such disputes should not be settled in the form of a criminal proceeding.</p>

Tried below before Hon. M. G. Abernathy, County Judge. This conviction was for misdemeanor theft, and the penalty imposed by the verdict was a fine of $50 and confinement in jail for one hour. For the purposes of this report it is sufficient to say that the proof shows that Andrew Armstrong was an employe of the defendant, and together with other employes, acting under the order of the defendant, took the blocks from the place where stored as the property of the defendant.

Tried below before Hon. J. W. Patterson. This appeal was prosecuted from a judgment final against the appellant, as the administrator of G. H. Cooper, deceased, one of the sureties on the appearance bond of J. W. Pansier, the said bond binding the said Pansier to appear before the District Court of Parker County as a witness in the case of The State v. J. H. Milliken. The amount of the judgment and bond ivas $500.

Tried below before Hon. T. M. Paschal. The opinion discloses the nature of the case. The amount of the bond ' and judgment was S300.

Tried below before Hon. Chas. E. Williamson, County Judge. The opinion discloses the nature of the case. The penalty assessed against the appellant was a fine of $32.

<p>1. Practice—Scire Pacías—Burden of Proof.—As a defense to the scire facias the sureties on the bail bond of S. pleaded that S., prior to the forfeiture of the bond, was incarcerated in the penitentiary upon a conviction for felony, and that at the time of such forfeiture he was restrained of his liberty by process of law. Held, that the defense thus pleaded devolved upon the sureties the burden of proving such restraint.</p> <p>2. Same—Pleading—Rebutting Evidence.—The defense set up by the sureties was established prima facie by showing the conviction of S. of a felony, and his confinement in the penitentiary. To meet this proof the State was permitted to read in evidence the deposition of the Superintendent of the Penitentiary to the effect that S. escaped from the penitentiary prior to and was at large at the time of the forfeiture of' the bond. To this evidence the sureties objected that the escape of S. had not been pleaded by the State, and that, therefore, it responded to no pleadings in the case and should have been excluded. But held, that the proof was clearly in rebuttal of the prima facie proof of legal restraint, and as such was competent'.</p> <p>3. Same.-—In view of the evidence adduced on the trial, which established beyond peradventure that at the time of the forfeiture of the bond the principal, S., had es-caped and was at large, the answer relied upon by the sureties presented no valid defense to the forfeiture of the bond.</p> <p>4. Same—Evidence—Variance.—To the introduction in evidence of the judgment nisi the sureties objected upon the ground of variance, in that the judgment nisi recited a joint judgment against the defendants, whereas the scire facias recited a joint and several judgment against them. Held, that the objection is not well taken. The liability of the sureties on a bail bond being both joint and several, it is immaterial whether it be stated in the judgment nisi or citation to be joint, or several, or joint and several.</p>

Tried below before-Hon. T. H. Conner. The opinion states the nature of the case. A term of five years in the penitentiary was the penalty assessed against the appellant.

Tried below before Hon. B. P. Conner, County Judge. The conviction was for playing cards in a public place, and the penalty assessed against the appellant was a fine of ten dollars.

<p>1. Local Option—Election.—The illegality of an election adopting the local option law in a district wherein it is already in force by virtue of a previous election will leave the law operative under the original election.</p> <p>2. Same.—The status of any of the subdivisions of a county as to the local option law is not affected by the defeat of the law at an election held for the entire county. Such defeat will leave the law operative in such subdivisions wherein it already existed, and will not abridge the right of other subdivisions to demand an election for their own immediate localities without abiding the expiration of two years, under the provisions of article 3238 of the Revised Statutes. It is only when the law has been carried for the entire county at a county election that the law of the subdivisions is superseded by the law of the county.</p>

Tried below before Hon. S. R. Scott, County Judge. The conviction was for gaming, and the penalty assessed against the appellant was a fine of ten dollars.

Tried helow before Hon. W. S. Maxwell, County Judge. The opinion sets out the charging part of the indictment.

Tried below before Hon. R. E. Beckham. The conviction in this case was in the first degree for the murder of B. 0. Evans, in Fort Worth, Tarrant County, Texas, on the 6th day of July, 1889. The death penalty was awarded by the jury) Dr. W. P. Burts testified for the State that he was called to see B. C. Evans on the afternoon of July 6, 1889. He found Evans just outside of the office railing in the carpet department of B. C. Evans Company’s store.

<p>1. Evidence—Cases Distinguished.—“ Opinion as far as it consists of a statement of an effect produced on the mind becomes primary evidence, and hence admissible whenever a condition of things is such that it can not be reproduced and made palpable to the jury.” The question arising upon the apparent ages of two minors, as indicated by their physical appearance, the court under the above rule properly permitted the State to ask a witness what age the physical appearance of the minors indicated them to be, and the witness to give in answer the impression made upon his mind by the physical appearance of the minors. Note the opinion for the distinction between this and Koblenschlag’s case, 23 Texas Court of Appeals, 264.</p> <p>2. Charge of the Court. — Practice in Misdemeanor Cases requires that a defendant dissatisfied with a charge of the court shall both except to the charge when given and ask such additional charges as he may desire.</p> <p>3. Same.—The defense requested the court to charge the jury, in effect, that before they could convict they must believe that the defendant sold the intoxicating liquor to the minors without the written consent of their parents. The proof clearly showed the absence of such written consent, and hence did not raise the issue presented, wherefore. the court properly refused the requested instruction.</p>

<p>1. Transfer of Cases from District Court, etc.—The “ keeping of a house for public prostitution,” etc., is an offense of which the County Court has jurisdiction. The order of the District Court transferring the indictment in this case omitted the word “county” before “court,” and the defendant’s plea to the jurisdiction of the County Court is based upon such omission. Held, that the omission is a manifest clerleal error, wherefore the plea was properly overruled. It can not he presumed, that the District Court intended to transfer the indictment to a court which had no jurisdiction of the offense charged.</p> <p>2. Same—Amendment—Certificate.—It was not error to permit the certificate of transfer to he amended by affixing thereto the impress of the seal of the District Court.</p> <p>3. Keeping a Disorderly House, etc.—The Act of April 4, 1889 (Gen. Laws of 1889, p. 33), amending article 339 of the Penal Code, can not be invoked in the prosecution of a defendant for a violation of said article 339 prior to the date upon which the amendment took effect.</p> <p>4. Same.—As originally defined by article 339—and that article in its original form was in force at the time alleged in this indictment—a disorderly house was a house “kept for the purpose of public prostitution, or as a common resort for prostitutes or vagrants.” The indictment in this case describes the house as a house “kept for the purpose of public prostitution, and as a common resort for prostitutes and vagabonds. ” Defendant moved to quash that part of the indictment which charged that the house was kept as a resort for * * vagabonds. Held, that the motion was properly overruled; but “vagrant” as used in the statute, and “vagabond” as charged in the indictment, not being equivalent nor convertible terms, the court should have stricken the word “vagabond” from the indictment as surplusage, and confined the proof to the charge that the house was kept for the purpose of public prostitution, or as a common resort for prostitutes.</p> <p>5. Same—Evidence.—See the opinion m extenso for the substance of evidence held, insufficient to support a conviction for keeping a disorderly house.</p> <p>6. Penalty—Charge of the Court.—Instead of ameliorating, the amendment increased the penalty prescribed by article 339 of the Penal Code. The defendant did not elect to be tried under the law as changed, and the court charged the jury with respect to the penalty prescribed by the said article at the time the offense was committed. Held, correct.</p>

Tried below before Hon. D. W. Hullum, County Judge. The opinion sufficiently states the case. The penalty assessed by the verdict was a fine of $5.

<p>1. Practice—Evidence.—On a trial for murder the State was permitted to introduce in evidence a piece of paper which was found pinned to the fence of the deceased at the point whence the fatal shot was fired, and on which there was certain writing in pencil. The proved handwriting of the defendant was used as a standard of comparison whereon expert witnesses identified the handwriting on the piece of paper as that of the defendant. It was further proved that the piece of paper was a leaf from a blank hook found in the house of defendant, which hook belonged to and was used by him to' write in. field, that the paper and the writing thereon was properly admitted in evidénce.</p> <p>2. Same—Surprise.—The ruling of the court refusing to permit the defendant to reproduce the testimony of one Dr. M. as delivered on a former trial was not error, the other proof showing that the said witness was living, was a resident of this State, and had been attached as a witness in this cause. If surprised by the testimony of the State’s medical witness D., and he desired to contradict D. by the testimony of the absent witness M., the defendant should have applied for a continuance or postponement of the trial.</p> <p>3. Murder of the Second Degree—Charge of the Court.—Murder of the second degree not being raised or even suggested by the evidence, the trial court properly refused to submit that degree to the jury.</p> <p>4. Alibi—Charge of the Court.—On the issue of alibi the court charged the jury as follows: “ If the jury entertains a reasonable doubt as to the presence of the defendant at the place where the deceased was killed (if killed) at the time of such killing, the jury should acquit the defendant.” Ifekl, correct and sufficient.</p> <p>5. Murder—Fact Case.—See the statement of the case for evidence which, though circumstantial, is held sufficient to support a capital conviction for murder.</p> <p>On Motion for Rehearing.</p> <p>6. Murder—Indictment.—The charging part of the indictment was as follows: “that William Caldwell, ® * on or about the 1st day of August, in the year of our Lord 1888, with force and arms, in the said county of Fort Bend, and State of Texas, did then and there unlawfully, and with express malice aforethought, kill one J. M. Sliamhlin, by shooting him with a gun.” This indictment is objected to upon the grounds: 1. That it fails to charge that the accused murdered the deceased. 2. That it omits to charge the time and place of the shooting. 3. That it omits to charge the infliction of a mortal wound. 4. That it omits to charge the date of the wounding and the date of the death. 5. That it fails to charge that the shooting was done unlawfully and with malice aforethought. 6. That it is fatally defective for want of certainty. But held, that none of the objections are maintainable, and that the indictment is sufficient. See the opinion on the motion for rehearing for an elaborate discussion of the exceptions seriatim.</p>

<p>Appeal from the District Court of Coryell. Tried below before S. F.. Duffle, Special Judge.</p> <p>The conviction in this case was in the second degree for the murder of' J. H. Clawson, and the penalty assessed by the jury was a term of twenty years in the penitentiary.</p> <p>The rulings of the court on this appeal do not require a statement of.' the facts proved on the trial.</p>

Tried below before Hon. C. K. Bell. This conviction was in the second degree for the murder of J. V. Matthews, and the penalty awarded the appellant was a term of seven years in the penitentiary. The facts of the case, so far as they are involved in the ruling of the court, appear in the opinion.

<p>1. Practice—Special Venire.—It was contended on this appeal that the conviction should be set aside because it did not appear from the transcript that a special venire was ever ordered by the court. Held, that the contention is not supported by the record. On the contrary, the regularity of the proceedings in the organization of the jury is sufficiently disclosed by the record.</p> <p>2. Same—Jury Law.—Article 3056 of the Revised Statutes prescribes the oath which is required to be administered to the sheriff and his deputies when jurors not selected by the jury commissioners are to be summoned. This requirement of the law is complied with if the said statutory oath is administered to the sheriff and his deputies at the beginning of the term, and need not be repeated on every trial and as often as additional talesmen are to be summoned.</p> <p>3. Same—Postponement.—On this trial the defense objected to the issuance of venires for talesmen until certain of the veniremen who had been summoned and who were absent had been attached and brought into court to be passed upon, and he asked •a postponement of the trial until this could be done. Attachments were awarded, but postponement was denied. Meld, that the action of the trial court was correct. A defendant can not unreasonably delay a trial because of the absence of jurors who have been summoned. See Hudson’s case, ante, 333, for discussion of questions arising under this objection.</p> <p>4. Mutual Combat—Charge of the Court.—Instructing with regard to mutual ■combat entered into where death, or serious bodily injury likely to result in death; might ensue, the court properly charged the jury that in such state of case self-defense would not apply.</p> <p>5. Same—Perfect and Imperfect Self-Defense.—The proof tending to show that the defendant left the house to engage in an affray with the deceased—a misdemeanor under our law—it would have been proper for the court to instruct the jury as to what the law would be if defendant went out to engage in a fisticuff with deceased, but with no intention of engaging in a deadly contest or of using a deadly weapon, and that he did not use a deadly weapon until after the apparent effort of the deceased to use a deadly weapon on him. But in such case the defendant’s right of self-defense would not be, as insisted in his behalf, a perfect one, but would be imperfect to the extent of the gravity of the offense which he originally intended to commit. See the opinion for a succinct statement of the rule, and note that the omission in the charge was harmless in view of the finding of the jury.</p> <p>6. Practice—Privilege of Counsel.—The expression of opinion as to the guilt or innocence of the defendant by counsel in argument to the jury is to be reprehended, still a mere violation of the rule is not cause for reversal. In any event the violation of the rule would be immaterial on appeal in the absence of a requested instruction to the jury to disregard the attorney’s individual opinion.</p> <p>7. Same — Charge of the Court. — The Testimony of a Defendant in his own behalf stands upon an equality with that of any other witness, and is subject to the comment of opposing counsel. In this case the district attorney criticised harshly the credibility of defendants as witnesses in their own behalf, and warned the jury that “so long as defendants are to be believed when testifying in their own behalf, no man. will ever be convicted in this State.” The court instructed that the jury were the exclusive judges of the credibility of the witnesses and of the weight of their testimony, and that if after considering all of the testimony they had a reasonable doubt as to the guilt of the defendant, they should acquit. The rule is that the merely indiscreet declarations of counsel in argument will not operate to reverse a conviction when (as in this, case) the effect thereof is neutralized by the charge of the court.</p> <p>On Motion for Rehearing.</p> <p>8. Murder—Charge of the Court.—Two rules governing the charge of the court are: 1. The charge must respond to and be limited by the evidence. A charge which has no application to any evidence adduced on the trial is erroneous, is calculated to confuse and mislead the jury, and it is radical error for the court to assume and charge upon a theory not indicated by the evidence. 2. If the error (in the charge), however immaterial it may be, is promptly excepted to, and the exception is perpetuated by proper bill, this court on appeal is required to reverse a conviction, without inquiry as to the effect of the error upon the jury. This court, on original hearing of this appeal, in view of the conviction for manslaughter, declined to review the charge of the court on murder in the first degree. On this motion, however, it is made to appear from the record that the charge on murder in the first degree was excepted to when given, and. under the circumstances it is held, that the assignment of error based upon the insufficiency of the evidence to raise the issue of murder in the first degree should be considered. But see the statement of the case for the substance of evidence held to present murder of the first degree as one of the theories of the State, and see the same for charges of the court on that grade of murder held correct and sufficient.</p>