Volume 29 — Texas Court of Appeals Reports

Tried below before Hon. E. D. McClellan. The conviction was for the theft of a horse, and the penalty assessed by the verdict was a term of five years in the penitentiary. J. D. Thomas testified for the State, in substance, that he and the defendant were cotton pickers on the place of Mr. W. H. Gilbert, in Fannin County, Texas, in the autumn of 1889.

<p>Appeal from the County Court of Falls. Tried below before Hon. S. R. Scott, County Judge.</p> <p>The opinion discloses the case.</p>

<p>1. Practice—Evidence.—-On the trial of the accused under an indictment which in the second count charged the offense of receiving stolen property knowing it to he stolen, the State, over the objection of the defense, and for the purpose of showing the theft of the property by another person than the accused, and before it came into the possession of the accused, was permitted to read in evidence the indictment, judgment of conviction, and sentence of one H. for the theft of said property—the purpose of said evidence being limited by the charge of the court. Weld, correct.</p> <p>2. Same.—The State having introduced in evidence the indictment against H. for the theft of the property and the record of his conviction thereunder, the defense proposed but was not permitted to prove that when he was served with a copy of the indictment H. declared publicly that the accused had no part or connection with the theft of the property, but that he bought it in good faith and for value subsequent to the theft of the same. Weld, that the proposed proof was properly excluded as being in part hearsay and in part irrelevant.</p> <p>3. Same—Principal Offenders—Accomplice Testimony—Charge of the Court.—See the statement of the case for the substance of evidence held to raise the question as to the sufficiency of the corroboration of the accomplice'testimony, and to authorize a charge of the court as to principals in crime.</p> <p>4. Same—Evidence—Possession of Recently Stolen Property—Charge of the Court in effect instructed the jury that the personal, exclusive, unexplained, and recent possession of property after the same was stolen was sufficient evidence to warrant the conviction of the accused of the theft of the property. Weld, error. Such evidence constitutes a mere circumstance to be considered by the jury in connection with the other proof in the case.</p>

<p>Appeal from the District Court of Navarro. Tried below before Hon. Rufus Hardy.</p>

<p>Habeas Corpus on-appeal from the District Court of Hopkins. Tried below before Hon. E. W. Terhune.</p> <p>The opinion sufficiently discloses the case.</p>

<p>1. Practice in Misdemeanor Oases—Change of Venue.—The codes of this State do not authorize the change of venue in misdemeanor cases.</p> <p>2. Aggravated Assault and Battery—Fact Case.—See the statement of the case 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.</p>

Tried below before Hon. J. E. Dickenson. The conviction in this case was for the simple abduction of Sissie Bonner, and the penalty assessed against the appellant was a fine of $100. Sissie Bonner was the first witness for the State. She testified, in substance, that she was 13 years of age at the time of this offense, which was committed on the night of January 10, 1889. She was the daughter of Bid die Johnson, at present the wife of Henry Johnson.

Tried below before Hon. J. BT. Henderson. The conviction was for assault with intent to murder, and the penalty assessed by the verdict was a term of two years in the penitentiary. A statement of the facts proved on the trial is not essential to this report.

Tried below before Hon. H. O. Head. The appellant was convicted for the rape of Emeline Brandenburgh, and his penalty was assessed at death. It is sufficient for the purpose of this report to note that the proof for the State clearly inculpated the defendant as the perpetrator of a rape upon Mrs. Brandenburgh, an aged lady, near Denison in Grayson County.

Tried below before Hon. J. W. Timmins. This conviction was for the theft of sixty-four head of sheep, the property of dST. B. Waters. The penalty assessed by the verdict was a term of two years in the penitentiary. The rulings of this court in this case do not require an extended statement of the facts proved on the trial.

Tried below before Hon. E. W. Terhune. This conviction was for an assault with intent to murder Ben McGill. The penalty assessed by the verdict was a term of three years in the penitentiary. The identity of the defendant as the party who fired upon and shot Ben McGill was the disputed issue in this case. McGill lived at Reiley Springs, in Hopkins County, about ten miles distant from the town of Sulphur Springs.

Tried below before Hon. H. C. Pleasants. This is the second appeal prosecuted by the appellant from conviction, for perjury, the penalty, as on the former conviction, being a term of five years in the penitentiary. Practically the same proof was adduced on the two trials, and will be found fully summarized in the report of the first appeal, beginning on page 165 of the 26th volume of these Reports.

C. Bullitt, Esq., Special Judge. This conviction was for the crime of incest with Lenora Blanchette, the defendant’s niece, and the penalty assessed was a term of two years in the penitentiary. The carnal act was proved by the testimony of the alleged injured female alone, without other corroborating proof.

Tried below before Hon. W. H. Jenkins, County Judge. This conviction was for unlawfully carrying a pistol, .and the penalty assessed by the jury was a fine of $25. The questions determined on this appeal do not require a summary of the facts proved. The charge of the court reads as follows: “ 1.

Tried below before J. C. Muse, Esq., Special Judge. This conviction was in the second degree for the murder of Charles Bradley, and the penalty assessed by the verdict was a term of five years in the penitentiary. The statement of facts in this case covers about sixty type-written pages of the transcript.

Tried below before Hon. C. K. Bell. The appellants were jointly indicted, tried, and convicted in the first degree for the murder of J. T. Mathis, in Coryell County, Texas, on the 17th day of December, 1889. The death penalty was assessed against each of them. Alex Dargent was the first witness for the State. He testified that in December, 1889, he lived on Cowhouse Creek, in Coryell County.

<p>Appeal from the County Court of Falls. Tried below before Hon. S. R. Scott, County Judge.</p> <p>The opinion discloses the case. The penalty assessed was a fine of $25.</p>

<p>1. Practice—Cumulative Punishments—Case Stated.—Three separate convictions of the defendant for violations of the local option law, with the same penalty— $25 fine and twenty days in jail—assessed in each case, were had on the same day. The-several judgments were not entered or recorded by the clerk until the day after the verdicts were returned, and then, as entered, the judgments in the last two cases did not make the punishments cumulative to the punishment assessed in the first judgment, as required by article 800 of the Code of Criminal Procedure. The trial judge did not read, the judgments for approval until the day after they were entered when, discovering the omissions as above stated, he caused the clerk to add to the judgment in the last case (No. 1731) the following: “ It is further considered, ordered, and adjudged that the punishment herein adjudged against the said defendant, Charles Cox, shall begin when the-said judgment on the preceding conviction in cause No. 1729 shall have ceased to operate, as well as all other judgments of conviction preceding said No. 1729, so that no judgment of conviction preceding or following this judgment shall conflict with the penalty herein operative, so that each penalty will have its distinct separate time allotted to it.” The effect of this addition to the judgment in the third case was to make the punishment in that case cumulative to that in the second, but it could not operate, as evidently intended, to make the punishment in the second cumulative to that in the first, the rule being that the cumulative punishment shall be recited in the judgment in which it is intended to operate and of which it is to form a part.</p> <p>2. Same.—The rule is well settled as to punishments by imprisonment that when two judgments are not cumulative the imprisonment in the one case is counted pro tanto for both, and when the term of imprisonment is the same, the service of the term in the one is a service and satisfaction for both. Under this rule the term of imprisonment in the two first of these cases would begin and run together and end at the same time.</p> <p>3. Same—Amendment of Judgments in Criminal Cases.—The authority of the trial judge to make the addition set out to the judgment in the last of these cases was assailed by the defense upon the ground that the statute with reference to cumulative punishments (Code Crim. Proc., art. 800) relates to felony cases only and not to misdemeanors. But held that the said article relates to felonies and misdemeanors alike, and the contention of the defense was without merit.</p> <p>4. Same.—The power of the court to amend as it did the judgment in the third case was assailed upon the ground that having been placed in' jail on the day that the verdicts were rendered, which was two days before the amendment was made, the punishment in the said case had already gone into operation and had been in part actually discharged. This position was assumed under the authority in Grisham’s case, 19 Texas Court of Appeals, 504, to the effect that the power of the court to amend its judgments during the term at which they were rendered does not extend to cases in which punishment has already been inflicted in whole or in part. But the rule in the Gris-ham case can not be held to apply in this case, for though the verdicts were all rendered on the same day, the imprisonment of the defendant was under the first judgment and not the last two; the judgments had not been entered and recorded nor approved by the court when the defendant was placed in jail, and it is beyond dispute that until formally sanctioned and approved by the court, the judgment is subject to amendment or correction by the court.</p> <p>5. Same.—The validity of the amended judgment was assailed by the defense upon the ground that it was not sufficiently specific in terms to inflict cumulative punishment; that it was deficient in not containing a description of the preceding judgment, in not stating the time when defendant was convicted in the preceding case, in not stating the offense of which he was convicted, and in not stating the punishment assessed against him, and the court in which he was convicted. Properly, the judgment complained of should have embraced such specific recitals, but in this case the amended judgment is sufficiently explicit to impose the cumulative punishment.</p> <p>6. Local Option Law—Cases Approved.—Note the approval of the decisions in Burrage’s case, 26 Texas Court of Appeals, 35, and Cox’s case, 28 Texas Court of Appeals, 537, upholding the validity of the local option law as adopted and operating in justice precinct No. 1 of Camp County, Texas.</p> <p>7. Habeas Corpus was resorted to in this case to avoid the imprisonment penalties assessed in the three judgments against the defendant after payments of the fines. On the hearing the court held that the defendant was legally restrained of his liberty, but that the imprisonment penalties of the first two judgments, not being cumulative, would be satisfied by the service of a single term of imprisonment, and that the third judgment was cumulative of the first and second. Held, correct.</p>

Tried below before Hon. J. N. Henderson. Convicted in the first degree for the murder of Tom Newman, the appellant was awarded a life term in the penitentiary. For the purpose of convenient reference, the plat of the country surrounding the scene of the killing—indispensable to a fair understanding of the testimony—is inserted to precede the statement of the case. Mrs. Ellen Padgett was the first witness for the State.

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

Tried below before Hon. J. B. Blades, County Judge. This conviction was for the theft of hogs under the value of $20, and the penalty assessed against the appellant was a fine of $10 and confinement in the county jail for two hours. The testimony for the State clearly shows that the animals described in the information were taken up on the range by the defendant and by him driven to his pen and put in his mark.

Tried below before Hon. D. E. Barrett. The indictment charged the appellant with the murder of Joe Means, in Cooke County, Texas, on the 8th day of May, 1890. His trial resulted in his conviction for manslaughter, his punishment being assessed at a term of three years in the penitentiary. The statement of facts in this case covers nearly two hundred pages of the record.

Tried below before Hon. J. C. Russell. This conviction was for kidnapping a female, and the penalty assessed was a term of two years in the penitentiary.

Habeas corpus on appeal from the District Court of Harrison. Tried below before Hon. A. J. Booty. The relator was held under an indictment charging him with the murder of W. H. Clark in Harrison County, Texas, on the 27th day of September, 1890. The order of the judge below on the hearing of the writ of habeas corpus refusing bail is reversed, and bail in the sum of $5000 is awarded. The relator was the first witness who testified on this examination.

Tried below before Hon. J. M. Hall. The conviction in this case was for the theft of a watch, over the value-of $20, and the penalty assessed by the verdict was a term of two years in. the penitentiary. A. H. Hudgins, the owner of the alleged stolen watch, was the firswitness for the State. He testified, in substance, that in June, 1889, he was boarding at Sewell’s Hotel, in Grandview, Texas, occupying room No. 3, upstairs.

Habeas corpus on appeal from the District Court of Harris. Tried below before Hon. James Masterson. This was a proceeding by habeas corpus for bail, the charge against the relator being the murder of A. E. Frazier, in Houston, Harris County, on the 2d day of August, 1890. The order of the judge below remanding the relator without bail is reversed, and he is awarded bail in the sum of $5000. The testimony will be summarized in the order in which it appears in the record.

Tried below before Hon. James Masterson. The indictment charged the appellant with the murder of Ed. Lock-hart. He was convicted of manslaughter, and his penalty assessed at a term of five years in the penitentiary. The rulings of this court on this appeal do not require a statement of the facts proved on the trial.

Tried below before Hon. J. C. Russell. The conviction was for the theft of a mule, the property of B. Longorio, in Starr County, Texas. The penalty assessed was a term of five years in the penitentiary. The rulings on this appeal call for no statement of the evidence except that bearing upon the question of venue.

Tried below before L. J. Farrar, Esq., special judge. At the March Term, 1888, of the District Court of Limestone County, the appellant and one Jeff Wood were indicted jointly for the murder of Elizabeth Rucker by poison, to-wit: “ That the said Tilman Johnson and Jeff Wood did then and there wilfully poison and cause to be poisoned a certain drink, to-wit, certain water then and there contained in a certain bucket at the house of H. P. Rucker, where said Elizabeth Rucker…

Tried below before Hon. C. K. Bell. The appellant was convicted upon the second count of the indictment which charged Layton McDonald with the offense of offering to bribe a witness in a criminal cause to disobey an attachment, and himself, appellant, as being accomplice to McDonald in the commission of said offense. A term of two years in the penitentiary was the penalty assessed by the verdict. J. W. Mouchette was the first witness for the State.

Tried below before Hon. J. W. Patterson. The conviction in this case was for the theft of two head of cattle, the property of Mrs. Lumbert. The penalty assessed by the verdict was a term of three years in the penitentiary. The rulings of the court on this appeal do not demand a detailed statement of the facts proved on the trial.

Tried below before Hon. D. E. Barrett. This conviction was for the theft of a gold watch from the person of John McLain, and the penalty assessed was a term of two years in the penitentiary.

Tried below before Hon. F. J. McCord. This conviction was for burglary with intent to rape, and the penalty-assessed by the verdict was a term of eight years in the penitentiary. The rulings of the court on this appeal do not require a statement of the proof adduced on the trial.

Tried below before Hon. C. L. Cleveland. The opinion discloses the case. The penalty assessed was a term of two years in the penitentiary.

Tried below before Hon. •George McCormick. This conviction was in the second degree for the murder of Francisco Ximenes. A term of five years in the penitentiary was the penalty assessed.

Tried below before Hon. T. M. Paschal. The conviction was for theft from the person, and the penalty assessed was a term of two years in the penitentiary. The opinion sufficiently states the case.

Tried below before Hon. J. V. Cockrell. The conviction was for the theft of a horse, and the penalty assessed by the verdict was a term of five years in the penitentiary. The brief of the counsel for the appellant sets out a correct summary of the facts adduced in evidence, and reproduces the general charges of the court and the special instructions discussed in the opinion.

■ Appeal from the County Court of Kaufman. Tried below before Hon. John Vesey, County Judge. This conviction was for wilfully disturbing religious worship, and the penalty assessed by the verdict was a fine of $25. The rulings on this appeal do not require a statement of the case.

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

<p>1. Inspection of Oils—Interpretation of the Codes.—The Act of April 5, 1889,, provides for the inspection of refined oils which are the product of petroleum, and which may be used for illuminating purposes within this State, and to regulate the sale and use thereof, and to provide penalties for violations of the same. The proviso embodied in the third section of the said act provides that it “shall not be necessary to inspect one which has been inspected under th'e law of another State.” From the subject matter of the act and the context of the proviso it is manifest that the word “one” was erroneously incorporated in the proviso in the stead of the word “oil,” and that the intent and purpose of the Legislature in'the enactment of the proviso was to exempt from inspection in this State oils which had been previously inspected under the laws of another State.</p> <p>2. Same.—Section 5 of the said Act of April 5, 1889 (for which see the opinion), applies only to fluids which have been brought into this State without any previous inspection. It does not apply where there has been a legal inspection in the State from which it was shipped.</p>

Habeas corpus on appeal from the District Court of Colorado. Tried below before Hon. George McCormick. The relator in this proceeding was held under an indictment charging him jointly with Marion Hope with the murder of John Stafford. The judgment refusing bail to this relator is reversed, and he is awarded bail in the sum of $5000. James T. Lee was the first witness for the relator.

Tried below before Hon. George McCormick. This conviction was in the first degree for the murder of Lump Bainey, in Gonzales County, Texas, on the 12th day of July, 1890. The death penalty was assessed. The evidence in this case was purely circumstantial, but it is not essential to this report that it be summarized in detail.

Tried below before Hon. W. A. Blackburn. The death penalty was assessed against the appellant upon his conviction in the first degree for the murder of Frances Hora. It appears from the record that both the defendant and the deceased were negroes, and that the latter was the mother-in-law of the former. A detailed statement of the proof adduced on the trial is not essential to this report.

Tried below before Hon. C. K. Bell. At the January Term, 1890, of the District Court of Coryell County the grand jury returned a bill of indictment against Jim Gould, Charley Baby, A. F. Penland, and the defendant, charging them jointly with the theft of two horses and one mule from B. M. Thompson, in Coryell County, on or about the 12th day of August, 1889.

Tried below before Hon. WA. Blackburn. This conviction was in the second degree for the murder of W. F. Hall. The penalty awarded by the verdict was a term of seven years in the penitentiary. The rulings of the court on this appeal do not necessitate a summary of the evidence adduced on the trial

<p>Practice in the Court of Appeals.—In the absence of bills of exception and of a statement of facts, this court is limited to the consideration of the record with respect to fundamental errors. None being apparent of record in this case, the conviction, though coupled with the death penalty, must be affirmed.</p>

Tried below before Hon. Anson Rainey. The substance of the indictment is set out in the opinion. The penalty assessed by the verdict was a term of two years in the penitentiary. With regard to the first count in the indictment, alleging the ownership of the steer to be in a person unknown to the grand jury, Wear, the one witness who testified to the taking, stated that the animal was in the “square and 0'' brand, and that it had been known as an estrav.

<p>Appeal from the District Court of Ellis. Tried below before Hon..</p> <p>Anson Rainey.</p> <p>The opinion sufficiently discloses the case.</p>

<p>Appeal from the District Court of Ellis. Tried below before Hon. Anson Bainey.</p> <p>The opinion sufficiently discloses the case. The amount of the bond and judgment was $500.</p>

<p>Appeal from, the District Court of Rusk. Tried below before Hon. A. J. Booty.</p> <p>The appellant was convicted in the first degree for the murder of Zilla Scott, his sister, and was awarded the death penalty.</p> <p>Brief as is the statement of facts in this case, it recites the details of a crime rarely if ever equalled, and certainly not surpassed, in atrocity by any recorded in the annals of criminal trials in this State.</p> <p>Emma Scott, the sister of the defendant and the deceased, testified that at the time of her death the deceased was pregnant, and that, according to current report and belief, the defendant was the father of the unborn child. On the morning of Sunday, August 3, 1890, the family (including the defendant) except the deceased, left home to attend church. The deceased declined to go because of her condition. At a point about three-quarters of a mile from home the defendant separated from the party, ostensibly to attend another church. The witness and others of the family returned home after 11 o’clock on that night, but saw nothing of deceased. On the next morning her dead body was drawn from the well. George Scott, Sr., the father of deceased, had treated deceased harshly. He had whipped and beaten deceased, and once drove her from home because she had disgraced the family.</p> <p>Medical testimony established the fact that the death of Zilla Scott was caused by gun shot wounds and blows upon the head.</p> <p>Deputy Sheriff Woodall testified, in substance, that after his arrest the defendant, being legally warned by him that whatever statement he made about the killing would be used against him, stated to him in effect that he, defendant, killed the deceased; that he had carnal knowledge of her once through mistake; that he found the deceased sitting tin the box of the well; that he then shot her with a gun, but failing to kill her, he procured an old axe, with which he- struck her several blows on the head and killed her; that he then threw her body into the well;. that he afterwards threw the old axe into the well. Witness afterwards found an old axe in the well, and in the house of the defendant’s father he found an old double barreled shot gun. One barrel had been recently discharged. The other was charged with shot similar in size and appearance to shot taken from the body of deceased. The axe was discovered by means of the information given by the defendant.</p> <p>The defendant took the stand, and, as to the circumstances immediately attending the killing, corroborated in detail the statement he had made to the witness Woodall. He testified further that his one act of copulation with his sister, the deceased, was performed through.mistake. It took place at night, in the dark, and in a bed occupied by the deceased and another girl. The witness (defendant) was drunk at the time, and then thought he was copulating with the other girl. When the pregnancy of deceased became apparent and his agency in bringing about her conditian known, George Scott, Sr., the father of the witness and the deceased, declared to the witness that the family had been disgraced, and that if witness did not kill deceased he would kill the witness. The plot to kill the deceased was concocted by the witness and his said father on the day before the killing.</p>

<p>1. Embezzlement.—The Indictment alleges that the money embezzled was the property of an “ incorporated company, to-wit, the Singer Manufacturing Company.” Meld, sufficient.</p> <p>2. Same—Evidence.—To constitute a felony the property embezzled must be of the value of $20 or over. The indictment in this case charged the embezzlement of “ $150, current money of the United States of America, of the value of $150.” To support a conviction under this indictment it devolved upon the State to prove that the defendant embezzled money of the value of $20 or over at one and the same time. Failing in this respect the evidence in this case does not support the conviction:</p> <p>3. Same—Intent.—The evidence adduced on the trial is otherwise insufficient. In the first place it does not satisfactorily establish the corpus delicti, and in the second place it does not prove a fraudulent intent.</p>

Tried below before Hon. C. L. Cleveland. This conviction was in the second degree for the murder of Joe Sparks, and the penalty assessed by the verdict was a term of five years in the penitentiary.

<p>Appeal from the County Court of Harrison. Tried below before Hon. A. H. Cooper, County Judge.</p> <p>The opinion discloses the case. The penalty assessed was a fine of $100 against each of appellants.</p>

<p>Appeal from the District Court of Greer. Tried below before Hon. G. A. Brown.</p> <p>This conviction was for manslaughter under an indictment which charged the appellant -with the murder of Joe B. Whitefield. The penalty assessed was a term of two years in the penitentiary.</p> <p>The proof shows that the deceased received the wounds which terminated fatally on Friday, May 23, 1890. On Saturday, May 24, he made 'the statement in writing hereinafter set out as his dying declaration. He died on Saturday, June 1, 1890.</p> <p>The predicate upon which the statement was admitted in evidence as a-dying declaration was established by the testimony of the State’s witness Warren. Warren testified that he was with the deceased on the day preceding his death. Deceased’s father and mother, Justice of the Peace Ice, and Mrs. Bedding were present. Mrs. Bedding, at the dictation of ’Squire Ice, wrote a complaint charging the defendant and his brother Sam and his father, S. W. Snell, with an assault with intent to murder deceased. The deceased signed and swore to that complaint before ’Squire Ice. Deceased’s father then asked him if that complaint stated the truth. Deceased replied: “ I have sworn to a statement before the officers be-</p> <p>fore, and that statement is true. I will never swear anything but the truth. I have sworn to this once before, and I will make no more statements.” At this time the deceased was sane, but was expecting to die and had no hope of recovery.</p> <p>Justice of the Peace Fletcher testified for the State that on the day after the cutting of the deceased he called on the deceased to take his written statement. The deceased was then sane. He did not say that he expected to die, but that as he did not know what might happen, he wanted to make his statement. What he said was not said in answer to interrogatories calculated to elicit any particular statement.</p> <p>The State then read the statement in evidence as the dying declaration of deceased. It reads as follows:</p> <p>“ Charlie Snell and I had some words about his having torn down the gap in my fence, when Sam Snell came out and said, ‘ God damn you, jump on some one of your size.’ I then said, ‘ Get out here in the road/ He, Sam Snell, had a claw hammer in his hand. I pulled a stick from the fence, and Sam Snell told me to put down the stick. I told him to put down the hammer. I then threw down my stick and he threw down the hammer. By this time old man Snell came to where we were and told Sam to go to the house. Sam said, ‘By God, I don’t have to/ He, Sam, then said I was a God damned liar, and I then came through the fence and called Sam aliar. Sam then tried to get the stick that I had thrown down, and I ran against him and pushed him over the stick. Sam then put his hand in his pocket to get his knife. I then clinched his hand in his pocket, and as I did this Charlie Snell got the stick and aimed a blow at my head. I let go of Sam to get the stick, and as I turned Sam Snell cut me in the back with his knife. When he cut me in the back I fell. After I fell and while I was on the ground Sam aimed a blow at my throat and I knocked the blow up and the knife struck me in the forehead. He then cut me in the breast. I then kicked him off of me with my feet, and as I rose he cut me on the shoulder. I then looked around and Charlie Snell had started at me with his knife open, and old man Snell stopped him. I then saw that they were aiming to kill me and ran off. I had no weapons to defend myself with but my fists.</p> <p>“J. B. Whitefield.</p> <p>“Sworn to and subscribed before me this 24th day of May, 1890.</p> <p>“E. R. Fletcher,</p> <p>“ J. P. Prect. 1, Greer Co.”</p> <p>S. W. Snell, the father of the defendant, testified, in substance, for the defense that a few minutes before the cutting he, from a distance of about 125 yards, saw the deceased strike or strike at the defendant across the fence. He went to that place at once and told deceased that he wanted no difficulty there. Deceased said that the defendant had thrown down his gap. Witness said to him, “If you will ask Maggie Snell, Mrs. Stinson, and Miss Alma Thornton you will find that Charlie did not throw down the gap.” Deceased replied, “If the women threw it down I have nothing more to say.” He then turned to the defendant and Sam Snell, called them damned sons-of-bitches, and proposed to whip them both if they would cross the fence. Sam said to him, “I will show you that I am not afraid of you,” and crawled through the fence into the lane. Before Sam straightened up the deceased struck him; they clinched and fell, with the deceased underneath. Deceased and Sam then got up. Deceased ran at once for a club about twenty feet away. Defendant ran for the club at the same time. They met at the place where the club was lying, and deceased stooped to seize it. At this time Sam closed in upon the deceased. They clinched and fell, and at that instant the defendant got the club and threw it over the fence. Witness was standing immediately behind the deceased when he, deceased, started to the club. He then saw no blood on nor rent in the deceased’s shirt. As deceased rose from the ground after his second fall the witness saw that he was cut, and ordered Sam to stop, which Sam did. Deceased then started home. Witness, starting towards him, asked him, “Joe, are you hurt much?” He replied, “God damn you, don’t you come about me!” Witness said to him, “I don’t mean to hurt you, and I am very sorry this has happened.” He then helped deceased to his house, put him to bed, and sent a boy for the doctor.</p> <p>The defendant, in his own behalf, testified substantially as did his father, and in addition that he ran for the club at the time the deceased did for the purpose only of preventing the deceased from getting and striking his brother Sam with it. As soon as he got possession of the club he threw it over the fence, and made no attempt to use it on the deceased. He had no knife on his person, and made no attempt to use a knife on deceased. He did not draw a knife, nor even have a knife in his hand. He did not know that his brother Sam had a knife until after he saw that deceased was cut. He took no part whatever in the fight.</p>

Tried below before E. B. Lewis, Esq., Special Judge. The opinion sufficiently states the case. The penalty assessed against the accused was a term of two years in the penitentiary.

<p>Practice in the Court of Appeals—Statement of Facts.—This court will unhesitatingly reverse a conviction when it is made to appear (as was done on this appeal) that without fault on the part of the defendant or his counsel the defendant has been deprived of a statement of the facts in his case.</p>

Tried below before Hon. F. J. McCord. The opinion sufficiently discloses the case. The penalty assessed by the verdict was a term of seven years in the penitentiary.

<p>Appeal from the District Court of Hill. Tried below before Hon. J. M. Hall.</p> <p>The conviction was for assault with intent to murder, and the penalty assessed by the verdict was a term of two years in the penitentiary.</p> <p>J. R. Corry, the alleged injured party, testified, in substance, that during the year 1890 the defendant was a tenant on his farm. At the time of this difficulty, about October 30, 1890, the defendant had gathered his share of the corn and left witness’s share standing in the field. Witness met the defendant at church on the night preceding the difficulty, and told him that his religion ought to make him help witness gather his rent corn. Defendant replied that he had gone to the field once to help witness as per agreement, but that witness failed to put in an appearance, and that he, witness, might now gather the said corn himself. While in his field gathering the said corn on the next morning the witness observed the defendant and one Truitt in conversation outside of but near the field. Soon afterwards the defendant, on horseback, came to where the witness was and remarked to him, “So you think my religion ought to make me help gather this corn?” Witness replied, “I do; I told you that before.” Defendant said, “Well, I think my religion will make me do that.” He then proceeded to curse and abuse the witness, calling him among other names a damned son-of-a-bitch. Witness then said to defendant: “You have come down here for a row. I have tried to gather this corn; now I will gather it by law.” Witness then started to the end of the corn row opposite from his house where he had left his coat. Defendant rode along in the same direction, but a short distance to the witness’s left. He continued to curse and abuse witness. Finally he placed his right hand near his saddle pocket, and witness saw what he took to be a pistol. He then stopped and called twice for Truitt in a loud voice, but received no answer. He then said to defendant, “You have a pistol, and I am going to town and have you arrested.” Defendant, cursing and denouncing witness, said to him, “You wont get to town.” The witness, abandoning his intention to get his coat, turned and started toward his house. Defendant turned and followed the witness, cursing and abusing him and holding his pistol in his hand. When the witness crossed the small branch that traversed his field the defendant called to him to stop. Witness did so, and turned to face the defendant. The defendant then approached within twenty feet of witness, looked around as if to see if anybody was in sight, said, “I am going to shoot you,” and fired a shot at witness which did not take effect. Witness threw up his hands and said to defendant, “You are a coward to shoot me when I am unarmed and have nothing with which to defend myself.” Defendant" then cursed witness, rode up closer, and shot witness back.of the left shoulder. He then snapped his pistol twice at witness, and then proceeded to examine his weapon. While he was doing this witness rushed upon him, determined to disarm him if possible, but was met by a blow on the head with the pistol. Witness then went rapidly home, and defendant rode off toward Hillsboro. The witness declared that he did not have either a pistol or a knife on his person, and .denied that he made a hostile demonstration toward defendant, or that he seized a stone or threw one at defendant, or that he cursed the defendant or called him a son-of-a-bitch. The wound inflicted upon the witness by the defendant was a superficial one.</p> <p>William Truitt testified for the defense that a few minutes before the difficulty he, in his wagon, met the defendant on horseback near the field of J. R. Corry, in which field at the time Corry was pulling corn. When •defendant left witness he went into the field where Corry was, and witness started home. He had not gone far when he heard or thought he heard some person call him. ' Looking into the field witness saw Corry ■standing near the defendant, who was on his horse. They appeared to be ■engaged in a wordy altercation. Witness then started on home. About the time he started he heard one man call the other a damned son-of-a-bitch, and while he was not positive he thought that he recognized in those words the voice of J. E. Corry. By this time the parties had passed be- ■ yond sight of the witness. Witness then went to a point in the field from which he could see the parties. They were close together. Corry made a motion with his hands as if to strike the defendant. The distance was ■so great that witness was unable to state positively that the motion of Corry’s hand, was an effort to strike. Soon afterwards witness heard two pistol shots fired in such quick succession that he thought the defendant ■and Corry had each fired a shot. Witness then observed the parties closely. Defendant did not advance upon Corry after the shooting. On the contrary Corry advanced upon the defendant, and made or appeared to make an effort to strike defendant. Immediately afterwards Corry ran off toward his house, and defendant rode off toward Hillsboro. The defendant professed religion during the summer preceding this trouble, since which time the witness had never heard him use profane language or swear an oath.</p> <p>Testifying in his own behalf, the witness said that Corry told him on the night before the difficulty that he, Corry, thought his, witness’s, religion ought to make him help gather the corn in the field. After leaving Truitt ■on the morning of the difficulty, as stated by Truitt, the witness went to Corry in the field and said to him: “Mr. Corry, you think my religion should make me help gather this corn. I think so too. ” Corry then began to curse witness; called him a “damned son-of-a-bitch,” and said to him, “You have come hereforarow, and if you will get down (from your horse) you will get it.” Witness replied, “I have not come here for a row, but if nothing but a row will do you, I guess I can accommodate you.” Witness then dismounted and he and Corry started towards each other, Corry advancing with an open knife in his hand. Witness, seeing the knife, stepped back to his horse and put his hand in his saddle pocket. Corry said: “You have a pistol. I will go to town and have this corn gathered by law.” He then started up the corn rows in a direction opposite from his house. Witness followed, talking with Corry until the latter became angry, when he picked up a stone, turned completely around, and started toward his house. The witness followed until they reached the turn-row near a small branch. Corry crossed the branch and witness started up the turn-row towards his brother Jim Farrar’s house. Corry stopped and said to witness, “You damned cowardly son-of-a-bitch, I thought you would run off.” Witness turned and said to Corry, “That is too hard to take and you must take it back.” Corry in reply cursed witness, and said that he would retract nothing. The witness then started to get off his horse, when Corry began to throw stones at him. With a. stone as large as a man’s fist Corry struck witness on the left elbow. The blow, deadened the arm and produced a soreness that lasted two or three-days. Witness then drew his pistol and fired two shots at. Corry. Corry threw up his hands and asked witness not to shoot again. Witness replied that he would shoot no more, when Corry walked up to his right and tried to cut his, witness’s, throat, inflicting a small scratch. Witness then struck Corry over the head with his pistol and rode directly to Hillsboro and. surrendered.</p> <p>Continuing, the witness said that the difficulty occurred on ground covered with stones, and that he considered himself in danger of serious bodily harm at the time he drew his pistol and fired. He made no effort to fire-more than the two shots mentioned. He still had four shots left in his. pistol and could easily have fired them at Corry'if he had felt inclined to do so. Previous to this time witness and Corry had agreed to meet in the field on a particular day to gather the rent corn belonging to Corry. When. Corry spoke to witness on the preceding night about gathering the corn the witness said to him: “I went to the field once according to agreement-to help you and waited half a day for you. You did not come, and now you can gather it yourself.” Hpon reflection, however, the witness thought-it right to help Corry gather the corn.</p> <p>George Patterson, deputy marshal of Hillsboro, testified for the defense that the defendant surrendered to him on the day of the difficulty. Witness then observed a scratch on the right hand side of defendant’s throat.</p> <p>The bill of exception referred to in the first head-note reads as follows: “ Be it remembered that on the trial of the above entitled and numbered, cause the witness William Truitt was on the stand at the instance of the defendant and the defendant’s counsel offered to prove by said witness, the following facts: That a short time before the difficulty between the-defendant and the prosecuting witness, J. B. Corry, and in the road by the field where Corry was pulling corn, and in sight of said Corry pulling-corn, defendant had a conversation with Truitt, in which he asked Truitt’s advice as to whether he ought to go to help Corry gather the rent corn (which Corry was then gathering), and that said, Truitt advised defendant to go down there and help gather the corn. Defendant’s counsel stated that in connection with the aforesaid fact they expected to prove-that defendant did go to where Corry was in accordance with said advice. To all of this evidence the State’s counsel objected because immaterial,” etc.</p> <p>The charge of the court referred to in the second head note reads as follows: “The defendant is charged by indictment with an assault with the intent to murder one J. B. Corry, alleged to have occurred on or about October 20, 1890, in the county of Hill ■ and State of Texas. To-this charge the defendant has pleaded not guilty, and under this plea the law presumes him innocent until his guilt is established by legal evidence beyond a reasonable doubt.</p> <p>“ That you may understand the nature of the offense with which the {defendant is charged, it is necessary that the court shall define the offense of assault and of murder.</p> <p>“The use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of the violence used, is an assault and battery. Any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it an immediate intention, coupled with the ability to commit a battery, is an assault.</p> <p>“By the terms ‘coupled with the ability to commit’ as used above is meant that the person making the assault must be in such a position that, if not prevented, he may inflict a battery upon the person assaulted, and that he must be within such distance of the person assailed as to make it within his power to commit the battery by the use of the means with which he attempts it.</p> <p>“The law declares that every person with a sound memory and discretion who shall unlawfully kill any reasonable creature in being within this State, with malice aforethought, either express or implied, shall be deemed guilty of murder.</p> <p>“Murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offense to negligent homicide or manslaughter or which excuse or'justify the homicide.</p> <p>“ Malice, in its legal sense, as the word is used in this charge, means the intentional doing of a wrongful act towards another without legal excuse or justification.</p> <p>“Manslaughter is voluntary homicide committed under the immediate influence of sudden passion arising from an adequate, cause, but neither justified nor excused by law. By the expression ‘under the immediate influence of sudden passion ’ as herein used is meant that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation; the act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by passion arising by some other provocation or a provocation given by some other than the party killed. The passion intended is either of the emotions of the mind known as anger, rage, sudden resentment, or terror rendering the mind incapable of cool reflection. By the expression ‘adequate cause’ is meant such as would commonly produce a degree of rage, anger, 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 battery so slight as to show no intention to inflict pain or injury, unaccompanied by violenee, are not adequate causes; but an assault and battery causing pain or bloodshed is an adequate cause sufficient to reduce a homicide from the degree of murder to the grade of manslaughter. When one person accidentally kills another such killing in law is excusable. And when one person kills another in defense of his life or to protect his person from serious bodily injury, such killing is in law justifiable. When one person intentionally and unlawfully kills another under circumstances which show no mitigation, that is, under circumstances not sufficient of themselves to reduce the homicide to the offense of manslaughter as hereinbefore explained, and under circumstances which neither excuse nor justify the homicide as hereinbefore explained, then the law will infer that such killing was done with malice aforethought, and a homicide so committed will be murder.</p> <p>“You are instructed that if you believe from the evidence beyond a reasonable doubt that the defendant, in the county of Hill, in the State of Texas, about the time alleged in the indictment, made an assault as hereinbefore explained upon one J. E. Oorry, with the intent then and there to take the life of said Oorry, and shall further believe from the evidence beyond a reasonable doubt that had the defendant then killed said Oorry, the offense, if any, would have been murder as hereinbefore explained, then in case you so believe from the evidence you will find the defendant guilty of an assault with intent to murder as charged in the indictment, and you will assess his punishment at confinement in the penitentiary for any time not less than two years and not more than seven years, and so say by your verdict. H you have a reasonable doubt as to whether the defendant is guilty of an assault with intent to murder, then you will acquit him of that offense, and next consider whether he is guilty -of an aggravated assault or whether he was justified in shooting the said Oorry.</p> <p>“The court instructs you that if you shall acquit the defendant of an .assault with intent to murder, but shall believe from the evidence beyond a reasonable doubt that from all the circumstances surrounding the defendant there was aroused in the mind of defendant such sudden passion as to render his mind incapable of cool reflection, and acting upon the impulse of such passion, if he made an assault upon said Oorry as charged in this indictment, then you will find him guilty of an aggravated assault, and you will assess his punishment at a fine of not less than $25 and not more than $1000, or by imprisonment in the county jail not less than one month nor more than two years, or by both such fine and imprisonment, and so say by your verdict.</p> <p>“If from the. acts of said Oorry, if any, or if from his words coupled with his acts, if any, there was created in the mind of the defendant a reasonable apprehension that he was in danger of losing his life or of suffering serious bodily harm at the hands of said Oorry, then he had the right to defend himself from such danger or apparent danger as it then appeared to him, defendant. And if you believe that defendant fired: upon said Corry as a means of defense, believing at the time he did so, if he did so do, that he was in danger of losing his life or of suffering-serious bodily injury at the hands of Corry, then you will acquit him, unless you believe from the evidence beyond a reasonable doubt that the defendant sought a meeting with said Corry for the purpose of provoking a difficulty with said Corry, with the intent to take the life of said Corry or to do him such serious bodily injury as might end in the death of said Corry. And if you so believe from the evidence beyond a reasonable doubt, then you are instructed he would not be able to justify on the ground that he acted in self-defense; but if he had no such intention in seeking to meet the said Corry, then his right of self-defense would not. be forfeited, and he could stand his ground and use such means of defense as seemed to him necessary to protect himself from danger or what, appeared to him to be danger.” * * *</p> <p>The refused requested charge reads as follows: “You are further instructed that it is not essential to the right of self-defense that the danger-should in fact exist. If you believe from the evidence that it reasonably appeared from the circumstances that danger did exist, though in fact, the defendant was in no danger of death or serious bodily injury, the defendent would have the same right to defend against it, and to the same-extent that he would have if the danger was real. And in passing upon this question it is your duty to put yourselves in the position of the defendant at the time of the difficulty, and not judge the appearance of' danger as it appears to you fitting in the jury box. And if you have a. reasonable doubt as to the guilt of the defendant, after placing yourselves-as near as you can in his place at the time the difficulty occurred, then you will acquit the defendant, and so say by your verdict.”</p>

Tried below before Hon. W. M. Key. The opinion states the nature of the case and the penalty assessed.

Tried below before Hon. H. Teichmueller. The opinion discloses the case. The penalty assessed was a term of five years in the penitentiary.

Tried below before Hon. J. M. Hall. This is the appellant’s second appeal from conviction in the first degree for the murder of S. L. Guinn, the death penalty, as on the former conviction, being assessed. The evidence adduced on the former trial will be found summarized in the report beginning on page 293 of the 25th volume of these Eeports.

Tried below before Hon. F. J. McCord. The indictment in this case charged the appellant and W. T. S. Keller jointly with the murder of Alexander Pope, in Harrison County, Texas, on the 6th day of December, 1889. A severance being awarded upon the motion of the defense, the appellant was placed upon trial. His trial resulted in his conviction in the second degree, a term of five years in the penitentiary being the penalty assessed by the jury.

Tried below before Hon. E. E. Burke. This conviction was in the second degree for the murder of J. W. Wilson in Dallas County, Texas, on the 8th day of August, 1888. A term of five years in the penitentiary was the penalty assessed by the verdict. The statement of facts in this case covers about 100 pages of a typewritten record, but for the purposes of this report a short summary will be sufficient.

Tried below before J. C. Muse, Esq., Special Judge. This conviction was in the second degree for the murder of Jeff Armstrong, and the penalty assessed was a term of twenty years in the penitentiary. Colema,n Long testified for the State, in substance, that the defendant was working under him at the St. George Hotel, in Dallas, at the time of the fatal difficulty. He was employed a few days before to fill the place of the deceased, who had to quit work because of sickness.

Tried below before Hon. R. Hardy. The opinion discloses the case. The penalty assessed against the appellant was a term of five years in the penitentiary.

Tried below before Hon. W. A. Blackburn. This conviction was for rape by assault with force, and the penalty assessed against the appellant was a term of twenty-four years in the penitentiary.

Habeas Corpus on appeal from the District Court of Wise. Tried below before Hon. J. W. Patterson. The opinion states the nature of the case. The evidence shows that the deceased was one of a posse summoned by .a peace officer to arrest one Bob Campbell, an escaped convict. As a secondary object the said officer had in view the arrest of Campbell and his party, including the relator, for carrying pistols.

Tried below before Hon. J. H. Henderson. This conviction was in the first degree for the murder of Laura Jones. Death was the penalty assessed against the appellant. The questions considered and determined upon this appeal do not require a fuller statement of the evidence than will he found summarized in the opinion.

Tried below before Hon. I. N. Roach, County Judge. The conviction was for an aggravated assault and battery upon A. O. Forehand, a female. The penalty assessed was a fine of $25. Mrs. A. O. Phillips, nee Forehand, the alleged injured female, testified for the State, in substance, that having passed the night of January 17, 1889, at the house of her uncle, Berry Baker, she started to return to her home on the morning of the 18th.

<p>Appeal from the County Court of Victoria. Tried below before Hon. J. L. Dupree, County Judge.</p> <p>Conviction for fornication; fine 150.</p> <p>The indictment charges-as follows: “That one George Jones, a man, and one Patsy Johnson, a woman, late of said county, on the 1st day of July, in the year of our Lord one thousand eight hundred' and eighty-nine, in Victoria County, Texas, and continuously for two years prior to that date, did then and there have habitual carnal intercourse with each other, the said George Jones and said Patsy Johnson not then and there being married to each other, but both the said George Jones and the said Patsy Johnson were then and there unmarried.” Defendant moved in arrest of judgment upon the ground that the indictment does not charge an offense against the law, etc. His said motion was overruled.</p>

Tried below before Hon. J. C. Morris, County Judge. The defendant was convicted of wilfully and wantonly killing hogs, and his punishment assessed at a fine of $5. The questions decided on this appeal do not require a statement of the evidence farther than is given in the opinion.

Tried below before Hon. Bufus Hardy. J. B. Floyd and Erwin Floyd were jointly indicted, tried, and convicted for the murder of Frank Patterson. The conviction is for murder-in the second degree, the punishment assessed being confinement in the penitentiary for twenty-five years against each of them.

■ Appeal from the Criminal District Court of Harris. Tried below before Hon. 0. L. Cleveland. The indictment charges that defendant murdered Charles Williams, in Harris County, Texas, on the 1st day of December, 1890. The conviction is for murder in the first degree, and the penalty assessed is death.

<p>Appeal from the County Court of Waller. Tried below before Hon. H. C. Tompkins, County Judge.</p> <p>This conviction is for an aggravated assault and battery, the punishment assessed being a fine of $15.</p> <p>The prosecution is by information, and the jurat to the complaint upon which the information is based is as follows:</p> <p>“Sworn to and subscribed before me, this the 30th day of July, A. D. 1888. “Win Greer, J. P.”</p> <p>A motion in arrest of judgment was made by the defendant, the ground of said motion being the insufficiency of the complaint, because there was no jurat to said complaint showing that said complaint had been sworn to before an authorized officer. It was alleged in said motion, and also proved, that the letters “J. P.” after the name “Win Greer” in the jurat were placed there after the information had been presented, and without the knowledge or consent of the defendant. Said motion was overruled by the court.</p>

<p>1. Certiorari to Perfect Record.—A certiorari to perfect the record by bringing up special instructions requested by the defendant on a former trial of the cause, but not again requested on the subsequent trial, will not be awarded, because such instructions do not constitute a part of the record in the cause.</p> <p>2. Special Instructions. — If special instructions requested at one trial are not again requested on a subsequent trial, they are considered as waived or abandoned and lose their force and efficacy, and axe entitled to no further consideration as a part of the record in the case.</p> <p>3. Record of a Cause. —The “record of the cause” consists of the papers and proceedings entered upon the minutes incidental to and connected with the case to be tried, and which are had and used at the last trial of the case.</p> <p>4. Same—Charge of the Court. — In each subsequent trial of a cause the court must charge the jury anew, and the same rules apply in such subsequent trials as to the charge and requested instructions as in the first trial. The “record of the cause,” within the meaning of article 680, Code of Criminal Procedure, relating to the charge, embraces the charges given or refused on the particular trial, and does not embrace those given or refused on any other trial of the cause.</p> <p>5. Manslaughter—Adequate Cause—Charge of the Court.—It is a rule now well settled that where the evidence shows a number of conditions tending, either singly or collectively, to constitute what a jury might consider adequate cause, the court should leave the jury at liberty to consider them all in determining whether or not adequate cause existed. While it is true that the provocation must arise at the time of the commission of the ofiense, and the passion must not be the result of a former provocation, yet in-passing upon the sufficiency of the provocation and on the effects of the passion upon the mind of the defendant, the past conduct of deceased towards defendant, his threats and bearing, and in fact all the facts and circumstances of the case, should be considered by the jury. An act standing alone may not be sufficient provocation, but may be ample when one in a series of similar acts, or when it has been preceded by an insolent and aggravating course of conduct, whether similar or not to the act committed at the time of the homicide. In this case it is held that the charge of the court upon the issue of manslaughter is insufficient, in that it does not instruct the jury plainly and pertinently that they could and should consider the antecedent facts and circumstances in evidence in determining whether or not adequate cause existed.</p> <p>6. Same.—The charge of the court should be based upon and pertinent to the evidence. In this case the court in instructing the jury upon the issue of manslaughter copied subdivisions 1 and 2 of article 597, Penal Code. Held, that these subdivisions were inapplicable to the evidence, and that the charge in this respect tended to mislead and confuse the jury.</p>

<p>Appeal from the District Court of Brown. Tried below before- Hon. J. W. Timmins.</p> <p>This conviction is for the theft of a steer, alleged to be the property of A. C. Smith. The punishment was assessed at two years confinement in the penitentiary.</p> <p>A. C. Smith, a witness for the State, testified: I know the steer alleged to have been stolen; have known it since it was a calf; know it from its flesh marks. It was branded f on the right flank and right shoulder. On May 29, 1890, the steer was in my exclusive care, control, and management. On that day I saw the steer in defendant’s possession with other cattle. It was being driven with other cattle by defendant to my storey to be delivered by him to Mr. Cutbirth. I and others assisted defendanfi in driving the steer and the other cattle to my store, and I there saw the defendant sell and deliver said steer and other cattle to said Cutbirth. After said sale and delivery D. P. Malone, John McBride, D. T. Granad, and myself roped the steer and examined the brand. The brand had been changed and another brand put on over it. The steer was a short two-year-old scrubby, and was the same steer that had run-on the range near Blackston Byrd’s, across the bayou from me. The mark of the steer had also been changed on one ear, a part showing to be fresh and a part old.</p> <p>Cross-examined: The brands on the steer had been changed so as to be thus, y. I did not attempt to take the steer from Cutbirth, but allowed him to drive it off to Callahan County. Charles Byrd, a magistrate, was present. I did not tell him of it nor attempt to procure a warrant for the arrest of the defendant until late that evening. There were as many as twenty or thirty men present when the steer was roped and examined. I do not know'whether the defendant was there at that time. About two weeks after defendant sold the steer the defendant asked D. T. Granad and myself to go to Blackston Byrd’s pen and look at" a steer which he claimed to have penned. We refused to go, because we knew it was not the steer that the defendant was charged with stealing. The steer was taken by defendant in Brown County, Texas, and without my consent. There were other steers on the range branded</p> <p>D. T. Granad, a witness for the State, testified: I knew a two-year-old steer branded f on the right flank and right shoulder. It ran on the range near Blackston Byrd’s and Young Hester’s, who lived about one mile from its accustomed range. It belonged to the estate of Jerome Smith, deceased, and was in the exclusive care, control, and management of A. C. Smith. On May 29,1890,1 saw it at D. P. Malone’s pen, in the possession of the defendant. It was with other steers, and we drove all the steers to my store that day to be delivered to Cutbirth. There were several other parties there that had steers in the bunch. When we got to King’s A. C. Smith and others put more steers in the herd and we all drove them to my store. The defendant was with us. I saw him sell the steer at my store to Cutbirth and receive pay therefor. We roped the steer and examined the brand. The brand showed to be burned on over an old brand. The old brand was crossed with another brand that looked like Y B connected.</p> <p>Cross-examined: When I saw defendant with the steer I did not claim the steer of him, nor tell Cutbirth that it was not defendant’s steer. It was in the daytime, and some twenty or thirty men were present. The magistrate was there. I did not make complaint before him nor swear out a warrant for the defendant. I did swear out a warrant against the defendant that evening. The reason I did not sooner swear out the warrant, I was afraid the defendant would get away. One day after defendant had taken the steer he asked A. C. Smith and myself to go with him to Blackston Byrd’s pen and look at a steer he had penned there. We refused to go, because we knew it was not the steer he had stolen. I am not mistaken about the steer. I knew it from a calf; I knew it by its flesh marks. It was a pale red.</p> <p>D. P. Malone, a witness for the State, testified: I was at my store when the cattle were delivered to Cutbirth. Smith and Granad asked me to look at a brand on a pale red, scrubby two-year-old steer. The brand was comparatively new, about six weeks old, and had the appearance of having been put on over an old brand. I could not say what the old brand had been. I can not make the brand that was on the steer when I examined him.</p> <p>John McBride, a witness for the State, testified: I examined the steer at the time testified about by witness Malone. I saw what might have been an old brand under a brand that had the appearance of being about six weeks old. It may not have been an old brand; may only have been a scar.</p> <p>Cross-examined: I have been in the stock business for years, and have had considerable experience with brands. In my opinion the brand that was on the steer when I saw him never could have been changed from It was y on right flank and L on right shoulder. I think if the brand had ever been f it would have shown some parts of the old brand so that it could have been seen.</p> <p>J. B. Cutbirth, a witness for the defendant, testified: I purchased two animals from the defendant on May 29, 1890. One of them was a pale red steer branded ^ on right flank and L on the right shoulder. I drove the animal to my ranch in Callahan County, and it is there now. It is the same steer in controversy in this case. I have examined the brands on the animal carefully. It was branded as I have above stated. I think it is impossible that the brands ever could have been f. When I purchased the steer the brand was comparatively fresh, and there appeared to be a scar or old brand under the new brand. I was paying $6 per head for yearlings. Paid defendant $4.50 for this animal.</p> <p>Frank Lewis, a witness for the defendant, testified: Mr. Cason, defendant, and myself penned a scrubby, pale red two-year-old steer branded ^ in Blackston Byrd’s pen about two weeks after defendant had been charged with the theft of Smith’s steer. We found the said steer on the range near said Byrd’s house. Defendant and myself went to Gran ad’s house and requested him and A. 0. Smith to. go and examine said steer, and they refused to go. I went with defendant and Dave Byrd to Callahan County to see the steer defendant sold to Cutbirth. We roped it and examined it, and I copied the brands, They were thus y, L. I have been engaged in the stock business for ten years, and I am familiar with brands. I think it is impossible that the brands could have been changed from</p> <p>Jesse Cason, a witness for the State, testified substantially the same as the witness Frank Lewis.</p> <p>Young Hester, a witness for the defendant, testified: I live in the neighborhood of Blackston Byrd and A. C. Smith. I am on that cattle range very often. Have charge of about 300 cattle on said range. For a year and a half or two'years I have known on that range a pale red, scrubby two-year-old steer branded f. It is on that range now. It is the only steer on that range in that brand, and the only one in that brand I have ever seen there. In my opinion that brand could not be changed into the brands found on the animal sold by defendant to Cutbirth so as to prevent the f from being discovered.</p> <p>Charles Byrd, a witness for the defendant, testified substantially the same as the witness Young Hester.</p> <p>Dave Byrd, William McCullock, and the defendant each testified that the steer sold by defendant to Cutbirth belonged to the defendant and was raised by him; that they knew the steer well by its flesh marks and brands.</p>

Tried below before Hon. B. R. Abernethy, County Judge. The opinion states the nature of the case and the evidence sufficiently. '.The penalty assessed was a fine of $10.

Tried below before Hon. J. M. Hall. On March 13, 1889, about 12 o’clock m., in Hubbard City, Hill County, Texas, the defendant shot with a gun and instantly killed Dave Stern. Defendant and deceased resided in Hubbard City, defendant being a lawyer and deceased a merchant. Defendant was a married man. There was a hotel in Hubbard City called the Covington Hotel. It was reputed to be a house of prostitution.

Tried below before Hon. E. D. McClellan. John Slade, the defendant, and E. Z. Roberts were indicted jointly for the murder of Pleas White. They were tried separately, Slade being first tried. He was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for the term of forty years.

Tried below before Hon. R. E. Beck-ham. Conviction for embezzlement. Punishment assessed at confinement in the penitentiary for two years.

<p>1. Punishment by Imprisonment in Jail, How Enforced.—When a prisoner is committed to jail by lawful warrant from a magistrate or court, or when by the judgment of a court he is to be imprisoned in jail, it is the duty of the officer having such prisoner in custody to place him in jail, and there keep him confined until discharged by law.</p> <p>2. Same—Duty of Officer.—When by the judgment of a court a prisoner is ordered to be confined in jail, it is a violation of duty on the part of the officer to permit such prisoner to remain out of jail, and in such case the law regards the prisoner as having escaped from custody.</p> <p>3. Same—Agreement of Officer.—An officer having the custody of a prisoner who has been ordered by a court to be imprisoned in jail, has no right or authority to agree that such prisoner may remain out of jail, and such agreement is absolutely void.</p> <p>4. Same—Discharge of Prisoner. ■—When a prisoner who has been placed in jail by the judgment of a court has remained therein the length of time required by the judgment, he is entitled to be discharged; but no other kind of custody than actual imprisonment in jail will entitle him to be discharged.</p> <p>5. Escaped Prisoner may be Retaken, etc.—When a prisoner escapes and remains at large till after the time fixed for the ending of his term of imprisonment has expired, he may be retaken under authority of the original judgment, and confined in jail for the full term of imprisonment adjudged against him; and this may be done where the prisoner is at large by agreement with the officer in whose custody he was placed.</p>

<p>1. Bill of Exception, to Charge.—An exception to the charge of the court “because the same did not instruct the jury fully upon the law governing in this case, under the facts proved,’’ is not entitled to consideration, because it is general and indefinite, not pointing out any error specifically.</p> <p>8. Same.—Bills of Exception when too indefinite to point out distinctly the matter complained of as error, will not bring such matter properly before this court for review. A hill must be so certain and full in its statements that the errors complained of are made to appear by the allegations of the bill itself.</p> <p>3. Same.—The principal purpose of an exception to the charge of the court is to call the attention of the trial judge to the particular matter complained of, so that he may be afforded an opportunity to correct any error he may have fallen into, to the end that the rights of the defendant may not be prejudiced. Another purpose is to enable this court to ascertain what error, if any, was committed, without an examination of other portions of the record. A general exception to the charge does not accomplish these purposes.</p> <p>'4. Alibi—Charge of the Court.—Where there is evidence tending to establish an alibi, the court should usually instruct the jury upon that issue. But the omission to so instruct is not such error, ordinarily, as will cause a reversal of the conviction, unless the charge be excepted to because of such omission, or unless instructions upon the issue he requested by the defendant, and are refused.</p> <p>5. Evidence—Defendant may Testify in His Own Behalf.—By the Act of July 6, 1889, which took effect ninety days after the adjournment of the Legislature, a defendant in a criminal action is permitted to testify in his own behalf. Whether or not the defendant will avail himself of the right to so testify is entirely discretionary with him. He can not be compelled to so testify.</p> <p>6. Same—Defendant’s Failure to Testify.—The failure of a defendant to testify in his own behalf shall not be taken as a circumstance against him, nor shall the same be alluded to or commented upon by counsel in the cause; and should counsel for the State allude to or comment upon such failure, such allusion or comment, if properly presented on appeal, will constitute reversible error.</p> <p>7. Same—Impeachment of Defendant’s Testimony.—WTien a defendant testifies in his own behalf he occupies the position of any other witness, and may be cross-examined as to any matter pertinent to the issue, and can not refuse to testify to any facts which would be competent evidence in the case if proved by other witnesses, even though his answers might tend to criminate him. He may he contradicted by proof of prior inconsistent statements, and this without previously questioning him as to such statements. His general character for truth may be proved to be bad. In short, he is subject to the same tests as other witnesses.</p> <p>8. Same—Confessions to Impeach.—A defendant who testifies in his own behalf may be impeached by confessions made by him, although such confessions were made under circumstances rendering the same inadmissible against him as inculpatory evidence. See the opinion for a full discussion of the question.</p> <p>9. Confession.—See the opinion for a statement made by the defendant which did not come within the meaning of a confession.</p> <p>Hurt, J., Dissenting.</p> <p>10. Evidence—Confession.—The act which gives a defendant the right to testify in his own behalf does not repeal the law relating to confessions. A confession made by a defendant, and which is not competent criminating evidence against him, is not competent evidence for any purpose, and can not be used to impeach his testimony as a witness in his own behalf.</p>

Tried below before Hon. George McCormick. Conviction of theft of cotton of the value of $20 or more. Punishment, two years confinement in the penitentiary. The opinion states the case.

Tried below before Hon. R. E. Beckham. The jury assessed the punishment at four years confinement in the penitentiary. The opinion states the case with respect to the questions, determined.

Tried below before Hon. J. W. Patterson. The indictment charges that the defendant, on or about the 5th day of February, 1890, in Parker County, Texas, with malice aforethought, killed and murdered Eiley Swan, by shooting said Swan with a pistol. Upon a trial of the cause the defendant was found guilty of murder in the first degree, and his punishment assessed at confinement for life in the penitentiary.

<p>On Motion fob Rehearing.</p> <p>1.' Theft of Cattle—Evidence.—Defendant being on trial for the theft of a steer, the State, over his objections, was permitted to prove that defendant had in his possession a large quantity of fresh beef; that his lawful right thereto was challenged, and he was asked to explain his possession of it. He defiantly answered that “he had stolen it, and if they did not believe he had stolen it, to prove it. ’ ’ Held, that the testimony was competent, and the court did not err in admitting it.</p> <p>S. Same—Charge of the Court.—With reference to the above stated testimony, the court instructed the j ury as follows: “If you find that certain fresh beef was found in the possession of the defendant, and when called upon to explain how he acquired such possession he explains it otherwise than by the unlawful acquisition thereof, and his explanation is a reasonable and probably true one, then in such case the defendant should be acquitted, unless the prosecution has proven such explanation of possession is false.” This instruction was excepted to by the defendant at the proper time, and a bill of exception reserved. Held, the instruction was misleading, and unauthorized by the evidence. The testimony upon which it was based is inculpatory and not exculpatory, while said instruction is based upon the theory that it is exculpatory.</p> <p>3. Same—Confessions.—The court charged the jury that confessions of a defendant going to show his guilt must be taken with great caution; that confessions, unless voluntarily and freely made, without inducement, etc., should be discarded. This charge as to confessions had reference to the testimony above stated. Held, the charge is erroneous. The defendant did not confess that he stole the steer he was charged with stealing. His confession that he stole the beef found in his possession was not a confession that he stole the steer. The charge should have limited the effect of the testimony as to his confession, and assigned to it its proper office in the case.</p>

Tried below before Hon. J. V. Cockrell. Conviction for theft of one cattle, and the punishment assessed at •confinement in the penitentiary for three years. The opinion of the court sufficiently states the case. That portion ■of the charge of the trial court which is quoted in the opinion and held to be erroneous was specially excepted to by the defendant on the trial, and a proper bill of exception thereto appears in the record.

<p>1. Punishment—Female Convict—House of Correction and Reformatory— Penitentiary.—A female convict is not punishable by confinement in the house of correction and reformatory, that institution being for the confinement of male convicts exclusively. A female convicted of felony is punishable by confinement in the penitentiary.</p> <p>2. Same—Charge of the Court—Verdict—Judgment—Sentence.—A charge of the court authorizing the jury to assess the punishment of a female defendant at confinement in the house of correction and reformatory, a verdict assessing such punishment, and a judgment and sentence accordingly, are without authority of law, and such verdict, judgment, and sentence are absolutely void, and confinement thereunder in either the house of correction and reformatory or in the penitentiary is illegal.</p> <p>3. Construction of Statutes.—Statutes are to be construed in accordance with the legislative intent. See the opinion for a construction of the statutes relating to punishment of convicts by confinement in the house of correction and reformatory, the construction being that female convicts can not be confined in said institution.</p>

Tried below before Hon. J. V. Cockrell. Conviction for burglary. Punishment assessed, two years confinement in the penitentiary. The opinion states the case.

<p>Appeal from the County Court of Fisher. Tried below before Hon. John W. Deming, County Judge.</p> <p>This is a conviction under article 273 of the Penal Code, the punishment assessed being a fine of $100. The information alleges that defendant did “unlawfully, for the purpose and with the intent to vex, harass, and injure one J. H. Haekett, willfully institute and cause to be instituted against the said J. M. Haekett, in Justice’s Court of Precinct Ho. 1 of Fisher County, Texas, a criminal prosecution, as follows, to wit, The State of Texas v. J. M. Haekett, Ho. 37, charging the said J. M. Haekett,. by complaint made before J. H. Weakley, justice of the peace of Precinct Ho. 1 of said Fisher County, which complaint was filed by J. H. Weakley, justice of the peace in and for said Precinct Ho. 1, Fisher County, Texas, on the 26th day of April, 1890, with using in the town of Roby, on the public square thereof, loud and vociferous language, calculated to disturb the inhabitants thereof,” etc.</p> <p>Upon the trial the judge gave in charge to the jury article 273 of the Penal Code, to which defendant excepted upon the ground that a portion of said article was not applicable to the offense as charged in the information.</p> <p>The third paragraph of the charge, referred to in the opinion, is as follows: “ If, on the other hand, you believe from the evidence introduced that this defendant was not guilty of malicious prosecution as charged, you will return a verdict of not guilty.”</p> <p>The requested instructions as to malice and probable cause, which this court holds should have been given, are as follows: “ Legal mal-</p> <p>ice is defined to be any unlawful act done willfully and purposely to the injury of another; that is, the intentional doing of a wrongful act toward another without justification or excuse; and such an act against such person is malicious. This wrong motive, when it is shown to exist, coupled with a wrongful act willfully done to the injury of another, constitutes legal malice.</p> <p>“By probable cause is meant the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the offense for which he was prosecuted.</p> <p>“In a case of malicious prosecution the jury is required to find as follows, in order to convict the defendant: 1. The jury must find that the charge alleged (if any) to have been made by defendant was false. 2. The jury must find that the charge alleged (if any) to have been made was made maliciously, as hereinbefore defined. 3. The jury must find that the charge alleged to have been made (if any) was made without probable cause, as hereinbefore set forth.</p> <p>“Though the jury may believe that the charge contained in the complaint was false (if any such charge was in fact made), yet if such charge (if any) was made without malice, as hereinbefore defined, they will acquit the defendant.</p> <p>“Though the jury may believe said charge (if any) to have been both false and malicious, as is hereinbefore defined, yet if they believe said charge to have been made by defendant upon reasonable grounds to believe the same true, they will acquit the defendant.”</p> <p>The refusal of the court to give the foregoing requested instructions was excepted to by the defendant, and a proper bill of exception reserved.</p>

Tried below before Hon. D. E. Barrett. This appeal is from a judgment final upon a forfeited recognizance ■entered into by Ed. Geer as principal, with appellants as his sureties. Appellants excepted to the sufficiency of the recognizance because it did not show that their principal was accused of an offense against the laws of this State, which exception was overruled, and judgment final was rendered upon said recognizance for the sum of $500 and costs.

Tried below before Hon. B. B. Burk. This conviction is for the seduction of Amanda Bay, an unmarried female under the age of twenty-five years. The punishment was assessed at confinement in the penitentiary for three years.

<p>Appeal from the District Court of Williamson. Tried below before Hon. W. M. Key.</p> <p>The opinion states the evidence substantially.</p>

Tried below before Hon. John L. Sheppard. The conviction is for embezzlement of money of the value of more than $20, the punishment assessed being confinement in the penitentiary for three years.

Tried below before Drury Field, Esq., Special Judge. This conviction is for murder in the second degree, the punishment being five years confinement in the penitentiary. The name of deceased was Frank Giveson, alias Frank Gipson. The opinion states the case as to the facts sufficiently. There are no bills of exception in the record to the charge of the court, nor to the refusal of the court to give the special instruction requested by the defendant.

Tried below before Hon. H. Clay Pleasants. Conviction for theft of a hog, and punishment assessed at ten days confinement in jail and a fine of $75.

Tried in the court below before Hon. W. M. Key. This being purely a fact case, the evidence is given as contained in the statement of facts, and is as follows: Susie Atkins, the prosecutrix, testified for the State as follows: My name is Susie Atkins. I am thirteen years old. On the 13th of June, 1890, the defendant, Ben Rhem, made an assault upon me.

<p>Appeal from the County Court of Wilson. Tried below before Hon. A. D. Evans, County Judge.</p> <p>The opinion states the case.</p>

<p>Jurisdiction—Disqualification of Judge.—Defendant being prosecuted in the ■County Court for an aggravated assault pleaded specially that the judge of said court was disqualified to try the cause, for the reason that said judge as an attorney had prosecuted him before a justice of the peace for a simple assault arising out of the same "transaction and based upon the same facts. On motion of the county attorney the plea was stricken out. Held, error; because the allegations of the plea, if true, disqualified the county judge, and the defendant was entitled to prove the truth of the same.</p>

Tried below before Hon. F. A. Williams. This conviction is for forgery, and the punishment assessed at confinement in the penitentiary for two years. The forged instrument, which was read in evidence, is as follows: “Elkhart, Texas, 7-23, ’88.—Mr. Ash, let Walter have env thing he want. “G. W. Whitley.” Henry Hewitt, a witness for the State, testified that G-. W. Whitley had an account with the firm of Michael Ash for 1888.

Tried below before Hon. Charles S. Heathery, County Judge. Conviction for aggravated assault. Punishment assessed, a fine of $25 and imprisonment in the county jail for thirty days. The opinion states the evidence substantially.

<p>Appeal from the County Court of Llano. Tried below before Hon. W. S. Maxwell, County Judge.</p> <p>This conviction is for an aggravated assault, a fine of $25 being the-punishment assessed.</p>

Tried below before Hon. J. Q. Hanna, County Judge. - The complaint alleged as follows: That “ W. J. Warder did unlaw- • fully and willfully take down and separate a certain fence in which said Warder was the part owner from the fence owned exclusively by R. B. Martin, without giving said R. B. Martin the written notice to said-Martin, his agent, or attorney, of the intention of said W. J. Warder to remove and separate said fence, as required by law,” proceeding then to…

<p>Theft—Indictment—Description of» Property.—An indictment for the theft of money described the property as “$5000 in money, of the value of five thousand dollars.” Held, sufficient.</p>

<p>Appeal from the District Court of Lamar. Tried below before Hon. E. D. McClellan.</p> <p>The opinion sufficiently states the case.</p>

<p>1. Habeas Corpus—Bail.—“All prisoners shall be bailable by sufficient sureties unless for capital offenses where the proof is evident” By virtue of this provision of the Bill of Eights the right of bail is secured to all persons in this State who are accused of crime except in cases where the evidence manifests with reasonable certainty that the accused is guilty of a capital offense.</p> <p>2. Same — Rule for Determining Right to Bail. — The rule in this State for determining whether or not bail should be granted is thus declared: “ If the evidence is clear and strong, leading a well guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, bail is not a matter of right.” Or as stated in another form: “If upon the whole testimony adduced the court or judge entertains a reasonable doubt whether the relator committed the act, or whether in so doing he was guilty of a capital crime, bail should be granted. ’ ’ This rule applies also when the case is considered on appeal, the court keeping in mind the prima facie legal presumption that the action of the trial judge was correct.</p> <p>3. Same — Conflicting Evidence.— It is not all conflicting exculpatory evidence that will have the effect to raise a reasonable doubt of guilt and destroy or impair the force of “ evident proof” made by the inculpatory evidence. To the mind of the tribunal passing upon the evidence the guilt of the accused of a capital offense may be evident—that is, clear, strong, not admitting of a reasonable doubt—and yet there may be evidence in conflict with such inculpatory evidence. In such case bail should be refused.</p> <p>4. Same—Intoxication — Statute Construed.—Under the statute of this State mere intoxication or temporary insanity of mind produced by the voluntary recent use of ardent spirits will not mitigate either the degree or the penalty of crime. In a trial for murder, evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant for the purpose of determining the degree of the murder, but evidence of intoxication merely when it has not produced temporary insanity is immaterial, and it is not error to reject it. See the opinion for a thorough discussion of this subject and a review of the decisions upon it, both prior and subsequent to the enactment of the statute.</p> <p>5. Same. — The mere intoxication of the accused at the time he committed the homicide will not entitle him to bail. It has never been held otherwise by the courts of this State, even before the enactment of the statute upon the subject.</p> <p>6. Murder—Bail—Evidence. —See the statement of the case for evidence held sufficient to justify the refusal of bail to one charged with murder.</p>

Tried below before Hon. C. C. Garrett. The following is the evidence in full adduced on the trial of the case,, as the same appears in the record: W. D. Crockett, for the State, testified: I am the constable at Chappell Hill Precinct Ho.. 2, of Washington County, Texas, where Charlotte-Hughes, the deceased, was killed. The news of the killing was heard in the town of Chappell Hill the night of the day it occurred. The killing occurred on Friday, January 30, 1891.

Tried below before Hon. E. W. Terhune. The conviction is for perjury, and the punishment was assessed at five years confinement in the penitentiary.

Tried below before Hon. W. A. Blackburn. The defendants, W. H. Tweedle, George Tweedle, and Tom Martin, were jointly indicted and tried for the murder of A. B. Tyler. The conviction was of murder in the second degree. The punishment assessed against each of the Tweedles was thirty years confinement in the penitentiary, and against Martin twenty-five years confinement in the penitentiary.

<p>1. Indictment.—In a prosecution against an overseer of a road it is not material that the indictment should contain a distinct and direct averment that the road mentioned in the indictment is in the county of the prosecution. It is sufficient if the allegations show that the derelictions of duty constituting the offense occurred in the county of the prosecution.</p> <p>2. Same.—Where the indictment is under article 409 of the Penal Code it is not necessary to allege that the road remained out of repair and uncleared of obstructions for twenty days at one time. It is sufficient to allege that the overseer did willfully fail, neglect, and refuse to keep the road and bridges and causeways thereon clear of obstructions and in good repair.</p> <p>3. Same.—Where several offenses are embraced in the same general definition, and are punishable in the same manner, they are not distinct offenses and maybe charged conjunctively in the same count, or they may be charged in separate counts.</p> <p>4. Allegation and Proof.—Where one of several modes of committing an offense is alleged the prosecution can prove no other, but must prove the case as alleged.</p> <p>5. Verdict Against the Evidence.—See the opinion for evidence which shows that the defendant did not willfully fail, neglect, or refuse to perform his duties as-overseer of a road.</p>

Tried below before Hon. Ben F. Turner, County Judge. This conviction is for adultery, the punishment assessed being a fine of $100. Defendant and Florence Hamilton were jointly charged with the offense by information. Defendant alone was put upon trial. The opinion states the case as to the questions decided.

Tried below before Hon. C. L. Cleveland. The conviction is for murder in the first degree with the penalty assessed at death. The opinion states the case as to the question decided.

<p>Appeal from the District Court of Bell. Tried below before Hon. W. A. Blackburn.</p> <p>The opinion sufficiently states the case.</p>

Tried below before Hon. Herman G. Kittrell. On January 17, 1889, at a negro festival near Groveton, in Trinity County, Jeff Meachum was shot and killed, and this conviction is for his murder. The killing occurred about 10 o’clock at night. In substance the evidence adduced on the trial is as follows: Dr. J. R. Towns, a witness for the State, testified that he examined the gunshot wound on the body of deceased and probed the wound.

Tried below before Hon. E. W. Terhune. On the night of December 24, 1890, one Henry Chase was assaulted and wounded by unknown parties in Hopkins County, and he afterward died from the effects of said wounding.

<p>1. Evidence—Declarations of Defendant.—"When part of an act, declaration, or ■conversation or writing is given in evidence by one party, the whole on the same subject maybe inquired into by the other; and when a detailed act, declaration, conversation, or writing is given in evidence, any other act, declaration, or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.</p> <p>2. Same.—When the State proves an incriminative act of the defendant or elicits part of a conversation or declaration by him in connection therewith, the defendant is ■entitled to all that relates to and is explanatory of such act, conversation, or declaration. See the opinion for an illustration of this rule.</p>

Tried below before Hon. W. Kelso. The murder was committed in the unorganized county of Crockett. The evidence upon which the conviction rests is substantially as follows: S. Perez, a witness for the State, testified that he was chief of police of the town of Garza Galon, Mexico, and as such he arrested the defendant in that town in February, 1891, and placed him in prison there.

Tried below before R. S. Briarly, Esq., Special Judge. This conviction is of an assault with intent to murder, with the punishment assessed at two years confinement in the penitentiary. The defendant and about two hundred other negroes were on a train going to Timpson to attend an emancipation celebration. On the same train, seated in one of the cars into which the negroes crowded, was the assaulted party, McGowan, a white man.

Tried below before Hon. Wm. Kennedy. The charge of the court submitted the issues and law of murder in both degrees and of manslaughter. It also instructed the jury as to the law relating to the prevention of the consequences of theft, in accordance with the rules announced in the opinion. Special charges submitting the issue and law of self-defense and resistance to an illegal arrest were requested by the defendant and refused by the court.

Tried below before Hon. W. A. Blackburn. The opinion of the court sufficiently states the case with reference to> the questions decided.