Volume 3 — Texas Court of Appeals Reports

<p>Appeal from the District Court of Jackson. Tried below before the Hon. W. H. Burkhart.</p> <p>The material facts are stated in the opinion.</p>

Tried below before the Hon. A. S. Broaddus. The indictment was apparently founded on the act of May 19, 1873, “to prevent horse-racing in certain places.” It charged the appellant and one Josh Orreius with unlawfully running a horse-race along a street in the town of Caldwell. Both defendants were tried and found guilty at the November term, 1875, of the court, and a fine of $25 assessed against each of them. King asked a new trial, which was refused, and he appeals.

Habeas corpus for bail. Determined below by the Hon. D. M. PRENDERGAST. So far as the rulings are concerned, the opinion of this court sufficiently discloses the facts. The two appellants and James M. Bowden were separately indicted for the murder of Mrs. Mary A. Hester, who, sitting at her supper-table, on the evening of February 21, 1877, was shot, through the window, and instantly killed, in the presence of her husband, J. A. Hester, and other members of the household.

<p>Appeal from the County Court of Johnson. Tried below before the Hon. H. W. Baeclay, County Judge.</p>

Tried below before the Hon. E. Walker, County Judge. The charge was aggravated assault, of which the appellant was found guilty, and a fine of $100 assessed against him.

Tried below before the Hon. A. J. Booty. In Texas Court of Appeals Reports, volume 1, page 739, will be found the report of this cause upon a former appeal. That report, in connection with the opinion rendered on the present appeal, discloses the material facts.

<p>Malicious Mischief—Indictment.—Article 713 of the Penal Code (Pose. Dig., art. 2343) provides that the willful killing, etc., of certain animals, with intent to injure the owner, shall be punished by a fine not less than three nor more than ten times the amount of the injury done the owner. jHeld, that an indictment under this article must allege the amount of injury done the owner. If it alleges the value of the animal killed, but not the amount of injury done the owner, it is bad on motion in arrest of judgment.</p>

<p>Appeal from the County Court of Cherokee. Tried below before the Hon. J. P. Gibson, County Judge,.</p>

<p>Aggravated Assault—Indictment.—Appellant was convicted of aggravated assault, though the indictment assuming to charge that offense alleged merely that it was committed with brass knuckles. Held, that the indictment charged no more than a simple assault. To make it charge an aggravated assault it was necessary to further allege, in conformity with the statute, that the brass knuckles were a deadly weapon, or that serious bodily injury was inflicted with them on the person assaulted, or that the assault was committed with premeditated design and by the use of means, to wit, brass knuckles, which were calculated to inflict great bodily injury. The fact that the act of 1871, “ to regulate the keeping and bearing of deadly weapons,” specifies brass knuckles among such weapons does not aid the indictment.</p>

<p>1. Intormatiosts.—Both by article 404 of the Oode of Criminal Procedure and by the act of 1876 defining the duties of county attorneys, an affidavit or sworn complaint charging the defendant with an oifense against the law is made an indispensable prerequisite to the presentation of an information; and, without such prerequisite, an information is wholly insufficient to support a conviction.</p> <p>2. Same. — The statutory requirement of an affidavit or sworn complaint as the foundation of an information is but a compliance with the constitutional guaranty against the seizure of persons withoutprobable cause, supported by oath or affirmation.</p>

<p>1. Statement oe Facts. — The signature of the judge who tried the cause is indispensable to constitute a statement of facts.</p> <p>2. Practice—Bill ce Exceptions. — The judgment entry recites that the defendant excepted to the ruling of the court below on his motion to quash. This court declines to treat such recital as a substitute or equivalent for a bill-of exceptions.</p>

Tried below before the Hon. E. E. Gaines. No witness testified to seeing the horses stolen. The theft was committed in the night, and the owners made pursuit next day, and arrived at Silverstone’s store, on Eed Eiver, about eight or nine o’clock that night, when four men rode up, three of whom were riding the stolen animals.

<p>Appeal from the County Court of Franklin. Tried below before the Hon. H. L. Williams, County Judge.</p>

<p>Appeal from the District Court of Anderson. Tried below before the Hon. T. B. Greenwood, Special Judge.</p> <p>The opinion discloses the case.</p>

<p>1. Evidence.—Declarations of the accused are competent evidence in his. favor only when they were part of the res gestes; that is, were made at the time of the transaction, and were expressive of its character, motive, or object. Such declarations are regarded as verbal acts indicative of a present purpose, and, therefore, admissible in evidence.</p> <p>2. Same. — On trial for theft of cattle the accused was allowed to introduce and prove a bill of sale for the cattle made to him by another, four days after he had taken and sold the cattle, and then he proposed to prove the conversation had by him with his alleged vendor at the time the bill of sale was made. Meld, that such conversation cannot be regarded as part of the res gestee, and, therefore, it was properly excluded.</p> <p>3. Newly-discovered Evidence.—Anew trial will not be granted on account of evidence which, with proper diligence, could have been, but was not, discovered before the trial; nor on account of evidence cumulative of that adduced at the trial.</p> <p>4. Practice. — Objection to confessions because made in custody should be interposed when they are offered in evidence, and comes too late in a motion for a new trial.</p>

Tried below before the Hon. H. B. Simonds, County Judge. It was proved that, in a civil suit originating from the same fire, the appellant testified that he told his boys to bring the fire to the field, but for what purpose is not explained. The date of the affair, however, was December 1, 1876, when a fire may have been genial company. The head-note embodies the substance of the evidence. The defendant introduced no witnesses.

<p>1. Theft — Verdict.—In a trial for the theft of property, alleged by the indictment to be worth $24, the verdict was: “We, the jury, find the defendant guilty of felony, and assess the penalty at two years in the state penitentiary.” Held, that this verdict is not merely informal, but is insufficient in substance, because it fails to determine whether the accused was guilty of theft of property of the value of $20 or more, which was the primary issue to be affirmatively determined by the jury before they'could assess the penalty specified in the verdict.</p> <p>2. Same. — Such a verdict might have been corrected, with the consent of the jury, as provided by article 627 of the Code of Criminal Procedure; otherwise, the jury should have been sent back for further deliberation, as directed by the next article.</p> <p>3. Same.—It is not intended to impugn the position that, in a case admitting of degrees, if the verdict specially finds the accused guilty of a less degree than that charged in the indictment, and assesses a punishment appropriate to it, the verdict is tantamount to an acquittal of the higher degrees.</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>According to the testimony of the prosecuting witness he was lying on a bed when the defendant, with whom he had been carousing, came into the room and asked him a friendly question, and stepped up to the bed and thrust his hand into witness’ pocket, from which he took a pocket-book containing $8, and thereupon ran away with the spoils.</p> <p>The indictment charged that the defendant “ unlawfully willfiilly, maliciously, and feloniously, and with force and by violence, did take from the possession of James Cross, ” etc.</p>

<p>Appeal from the District Court of Houston. Tried below before the Hon. B. S. Walker.</p>

<p>Appeal from the County Court of Henderson. Tried below before the Hon. W. L. Faulk, County Judge.</p>

<p>1. Theft. — On a trial for theft of a hog it was proved that defendant was found skinning a hog freshly killed, and that, on discovering that he was seen, he ran away, leaving the carcass on the ground. His counsel asked the court to instruct the jury not to convict unless the proof showed that the defendant’s connection with the animal commenced before it was killed. Held, that the request was properly refused.</p> <p>2. Same. — The Penal Code, in defining theft, omits the words “ carried away,” and thereby dispenses with such proof of asportation as is required at common law.</p> <p>3. Newdy-discovered Evidence.—Accused asked a new trial to obtain the testimony of his wife, by whom, as he had discovered since the trial, he could prove that he was at home with her during the entire day on which the animal was stolen. Held, that such proof, if true, must of necessity have been known to the accused before the trial, and, hence, his motion was correctly overruled.</p>

<p>1. Vehue of an offense is a jurisdictional fact which must he alleged in the indictment—must he proved as alleged—and must, on appeal, he affirmatively shown in the statement of facts.</p> <p>2. Same. —No presumption can he indulged to supply want of proof of the venue.</p>

On certificate of the clerk of the District Court of Delta County, exhibiting a judgment of said court, rendered August 7, 1876, against James Elmore, on a verdict finding him guilty of aggravated assault, and assessing against him a fine of $100. The judgment itself stated that notice of appeal was given. The clerk certified that no transcript had been demanded or forwarded,

<p>Appeal from the County Court of Hamilton. Tried below before the Hon. D. C. Smith, County Judge.</p>

Tried below before the Hon. D. M. Prekdergast. The indictment charged the appellants and one J. D. Mayfield with the murder of J. G-. Dixon, on July 21, 1876. Mayfield escaped trial by turning state’s evidence.

<p>1. Juby Oath.—No other oath than that prescribed by the statute (Pose. Dig., art. 3029) can be legally administered to a petit jury. If any other he administered, it vitiates a verdict of conviction rendered in the cause, and necessitates a reversal of the judgment entered thereupon.</p> <p>2. Same. —A recital in the judgment entry that the jury were “ sworn to try said cause, and a true verdict render according to the evidence,” shows that the oath was not that prescribed by law.</p> <p>3. Same. — Judges and clerks of courts are urged to consult the often-reiterated decisions upon this plain, but important, matter of practice.</p>

Tried below before the Hon. E. B. Turner. The opinion of the court discloses the leading features and the most material facts of this interesting and well-contested case. Counsel for the appellant, and the associate counsel for the state, presented the case in printed arguments which, though necessarily elaborate, are models in style as well as in matter. The oficial counsel for the state deemed it unnecessary to add anything to the argument of his associates.

<p>Appeal from the County Court of Eobertson. Tried below before the Hon. J. J. Kendrick, County Judge.</p>

<p>Former Oosviotioit. — On his trial for aggravated assault the accused pleaded former conviction, and introduced a justice’s judgment convicting and fining him for a simple assault committed on the same person and at the same time as the alleged offense on trial. The state, in rebuttal, proved that the justice of the peace acted without affidavit or warrant of arrest, and examined no witnesses; and his judgment showed that it was rendered on the submission and demand of the accused. B.eld, that the justice’s proceeding placed the accused in no jeopardy, and constitutes no bar to the prosecution for aggravated assault.</p>

<p>Appeal from the District Court of Rusk. Tried below before the Hon. A. J. Booty.</p> <p>The appellant and Tarleton had met to go hunting, each having his gun. Appellant asked Tarleton why he had been talking about him; to which the latter replied that he had done him no injustice. Appellant then gave Tarleton the d—d lie, and, upon the latter returning that compliment, punched him with the muzzle of his gun, and said he would “ shoot his d—d brains out and pay the lawyer.” This was all that transpired. Appellant made no attempt to shoot, and no one interfered. Tarleton’s gun was not in his hands or reach at the moment of the collision.</p>

Tried below before the Hon. G. W. Smith. The indictment impleaded the appellant and George McDonald jointly, but the former only was tried. The charging part of the indictment is embodied in the opinion of this court. W. W. Moss, the party charged to have been detained, was the only witness for the state.

<p>Theft—Repeal. — “ Theft from a house ” having, as a specific offense, been repealed by the act of August 21, 1876, without any saving as to past offenses, it was error, after the passage of the repealing act, to put upon his trial for simple theft a party who stood indicted for theft from a house when the repealing act was enacted. The case should have been dismissed. Montgomery v. The State, 2 Texas Ot. App. 618, cited and approved.</p>

<p>Appeal from the County Court of Victoria. Tried below before the Hon. R. H. Coleman.</p> <p>The offense was purchasing cattle hides without taking a bill of sale.</p>

<p>Appeal from the County Court of Hunt. Tried below before the Hon. H. B. Simonds, County Judge.</p> <p>Two or three witnesses testified that they, and they thought others, were disturbed by the conduct of the defendants. They stated, also, that the preacher expressed a hope that in future the young men would leave their pecans at home.</p>

<p>Appeal from the District Court of Cooke. Tried below before the Hon. J. A. Carroll.</p> <p>The opinion states all facts relevant to the ruling.</p>

Tried below before the Hon. G. J. Clark. The charge was resisting the sheriff in the execution of a warrant of arrest. The verdict was guilty, and assessed two years in the penitentiary against the appellant.

Tried below before the Hon. Gr. J. Clark. The indictment was found October 20, 1870. The opinion states the facts of the case.

Tried below before the Hon. G. J. Clark. The case is fully stated in the opinion. Two years in the penitentiary was the punishment assessed.

Tried below before the Hon. M. H. Bonner. The wound was inflicted on December 27, 1876, and Finley, the deceased, died in the afternoon of the 29th. The instrument used was a pocket-knife, which was thrust into the cavity of the abdomen, low down on the left side. Dr. Oliver Morse, who was called to attend the wounded man, found him lying in a puddle of water in front of a drinking-saloon at Wenona, a railroad station in Smith County.

<p>1. Pleadixg—Averment of Time. — One requisite of an information is that • it allege the commission of the offense at a date anterior to the filing of the information, and that the offense does not appear to be barred by limitation.</p> <p>2. Same. — “Anna domini one thousand eight and seventy-five” can hardly be deemed a date-at all, and certainly does not denote a date which shows that the offense was not barred by limitation. Judgment should have been arrested on account of such an averment of time.</p>

Tried below before the Hon. L. W. Moore. The accused, the deceased, and all the witnesses of the homicide were colored people. It occurred at a dance given by Bob Hawkins on the night of December 24, 1875. One of the witnesses testified that the accused and Aaron Reynolds, the deceased, “ had a dispute about a place in the dance, both claiming the floor; that the prisoner struck the deceased, and then pulled out a pistol and shot him. ’ ’ There was no fight.

N. M. Burford. In the opinion of this court will be found a remarkably lucid, though concise, statement of all the material facts. The jury awarded the defendant five years in the penitentiary.

<p>1. Theft of Bank-notes — Evidence. — Positive identification of stolen paper money may in a great measure be dispensed with when there are circumstances from which the general inference of guilt may be deduced. Note the recapitulation of such circumstances in the opinion of the court.</p> <p>2. Same. — See the evidence collated in the opinion, and held sufficient proof of the value of stolen paper money.</p> <p>3. Allegation and Proof of Ownership. — Indictment laid the ownership of stolen paper money in one H. The proof showed that he was conducting a store for one M., and that he was in possession, and entitled to possession, of the store and money when the latter was stolen. Held, that the proof sustains the allegation.</p>

<p>Threats—Iotjictment.—Two defendants being tried on an indictment which charged them with having, “jointly and severally,” seriously threatened to take the life of B., one of them was acquitted and the other convicted. It was objected, by motion to quash, that the offense woe necessarily several, and not chargeable jointly against the defendants; and, by motion in arrest, that, under such an allegation, the conviction of ono defendant could not be sustained when the other was acquitted. But held, that the words “jointly and severally” were mere surplusage, and vitiated neither the indictment nor the conviction.</p>

<p>1. Construction of Statutes. — All laws in pan materia must be construed together as one law, if not inconsistent. Repeals by implication are not favored.</p> <p>2. Jury—Special Venire. — The jury law of 1876 does not repeal all previous laws on the subject of selecting and impaneling juries, but only such laws and parts of laws as conflict with its provisions. It does not repeal or supersede article 556 of the Code of Criminal Procedure (Pose. Dig., art. 3024), which directs that, in forming a jury from a special venire summoned for the trial of a capital case, “the names of the persons summoned shall be called in the order they stand upon the list, and, if present, shall be tried as to their qualifications, and, unless challenged, shall be impaneled.” They are to be called, tested, and passed upon, consecutively, one at a time.</p> <p>3. Same. — Section 22 of the Jury Act of 1876 has reference to the formation of juries from the regular venire for the term, and not to special venires. Section 28 of the act prescribes the mode of obtaining the names of persons to be summoned on a special venire, but not the mode of impaneling the jury from the venire summoned; and, therefore, is not in conflict with article 3024, Paschal’s Digest, above quoted.</p> <p>4. Evidence.—Though a defendant be indicted separately, instead of jointly with his confederates in the crime, their acts, done in furtherance of the common design, are evidence against him — the true question being, not who are indicted for the offense, but who participated in its commission.</p> <p>5. Murder of the First Decree—Penalty.—As the Penal Code (Pose. Dig., art. 1639) prohibits the infliction of death for any offense committed before the perpetrator had arrived at the age of seventeen, the court below instructed the jury that, if they found the accused guilty of murder of the first degree, and that he was under seventeen when it was committed, they would assess his punishment at imprisonment for life. The jury returned a verdict convicting him of murder in the first degree, and assessing his punishment at imprisonment for life, but without otherwise finding that he was under seventeen when the murder was committed. Held, correct practice — the judgment being affirmed.</p>

Writ op error from the Criminal Court of the city of Marshall, county of Harrison. Tried below before the Hon. J. L. Camp. The judgment final was taken by default. The opinion states all the material facts.

Tried below before the Hon. W. H. Hats, County Judge. Kaufman, the party imprisoned, testified that he claimed a certain farm under a rental contract, and that Green Woods, one of the defendants, claimed it adversely as owner. That on September 10, 1877, witness was in the field getting ready 'to plow, when Green Woods came up and said he had a deed to the place, claimed it, and was in possession of it, and that witness should not plow there.

Tried below before the Hon. J. E. Fleming. The certified copy of the recorded mark and brand was from the county clerk’s office of Palo Pinto County. All other facts appear in the opinion.

<p>1. Theft—Evidence. —Accused procured his landlord to estray a horse, but at the expense and for the benefit of the accused, who was to retain the possession of the animal. Five months afterwards he sold the horse. Held, that, in the absence of evidence to show any false pretext by the accused in obtaining possession of the horse, or that, when he obtained such possession, he intended to deprive the owner of its value and to appropriate it to his own use, a conviction for theft cannot be sustained.</p> <p>2. Same—Indictment.—Note that the ownership is alleged in the person who estrayed the animal, and that the conviction is not impugned on that account.</p>

<p>1. Jury—Verdict.—In a felony case the jury agreed upon a verdict of guilty, and assessed the term of confinement in the penitentiary at the average of the several assessments of the twelve jurors. It was not shown that the jurors, before making the computation, agreed to be bound by the result. Held, not ground for new trial.</p> <p>2. Charge oe the Court.—Five witnesses having sworn that, from the general reputation for truth of the principal state’s witness, they would not believe him on oath, the accused asked the court to charge the jury that they could receive or reject any evidence on the ground of credibility, and could not convict until the presumption of innocence was overthrown by proof made by credible witnesses or by circumstances; which instruction was refused. Held, properly refused, because it is not the business of the court to tell the jury either to accept or reject testimony.</p> <p>3. Same. — Ordinarily, the province of the court is limited to determining the admissibility of the evidence, without instructing the jury upon its weight.</p> <p>4. Credibility of Impeached Witness. — Though a witness be impeached by others, the jury are the judges of the credibility of his testimony in the particular case on trial.</p> <p>5. Practice nr this Court. — Only in cases were the verdict appears to be wrong, oppressive, and unjust will this court disturb it on account of the evidence.</p>

Tried below before the Hon. G. H. Noonan. This was a conviction for theft, with assessment of one year in the penitentiary.

<p>Charge oe the Court—File-mark.—The transcript of a felony case must show that the charge of the court was filed in the court below; otherwise the charge, however correct, cannot be deemed authenticated, and a conviction must be set aside. Proper practice is to require the clerk to put his file-mark on the charge as soon as it is read to the jury and before it is delivered to the jury.</p>

Tried below before the Hon. A. J. Booty. The charge was theft of a gelding; the verdict, guilty, with five years in the penitentiary.

<p>Appeal from the County Court of Grimes. Tried below before the Hon. T. C. Buffington, County Judge.</p>

Tried below before the Hon. J. D. Templeton, County Judge. It was in proof that the owner of the hogs had been requested, the day before they were killed, to put them up.

<p>Appeal from the County Court of Ellis. Tried below before the Hon. J. D. Templeton.</p>

<p>1. Misdemeanors—Practice. — The action of the court below in a misdemeanor case will not be revised unless exceptions thereto were duly reserved by the proper bills of exception taken at the trial. Merely noting an exception on the record will not suffice. And, if further instructions be desired, they must be asked at the trial.</p> <p>2. Same. —Trying a misdemeanor, the court below, in its charge to the jury, erroneously stated the punishment prescribed for the offense; but the jury, disregarding the charge, assessed against the accused the lowest penalty which might lawfully be imposed, and judgment was entered accordingly. B'eld, that there is no error to the prejudice of the accused.</p> <p>3. "Venue. — To sustain a conviction on appeal, proof of the venue of the offense must appear in the record.</p>

Tried below before the Hon. E. Dougherty. The application for a new trial is fully set out in the opinion of the court. Part of the newly-discovered evidence was contradictory of the proof of value adduced at the trial, and the remainder was but cumulative.

<p>1. Theft of Animals—Verdict. — Indictment charged the theft of “a horse (a stallion); ” but the verdict found the accused guilty of theft of “ a horse (a gelding) as charged in the indictment.” Held, that the verdict is not responsive to the charge, and does not support the indictment.</p> <p>2. Theft — “Horse.”—.Article 766 of the Penal Code (Pose. Dig., art. 2409) prescribes the punishment fdr the theft of “any horse, gelding, mare, colt, ass, or mule.” Held, on principle and authority, that the word “horse” is not here used in a generic sense, so as to include other animals of the horse kind, and cannot be construed to include a gelding. The theft of a “ horse ” and the theft of a mare or gelding are distinct and separate offenses under the article in question.</p> <p>3. Evidence. — Trying a case of theft, the court below allowed the prosecution to prove, despite objection, that the accused, at the time of the theft, was a county convict, and as such had been hired out. Held, error, because the fact thus proved was a mere collateral fact, incapable of generating a reasonable inference of the guilt of the accused, and was liable to mislead the jury to his prejudice.</p> <p>4. Same. — To the rule which confines the evidence to the point or matter in issue rare exceptions may be found, but they are limited to cases involving the knowledge or intent of the party in respect of some fact which, though apparently collateral, had some bearing on the main fact in issue.</p>

<p>Appeal from the District Court of Goliad. Tried below before the Hon. D. D. Claiborne.</p> <p>The ease is fully stated in the opinion.</p>

Habeas Cobpus sued out to the Court of Appeals. A full, clear, and connected statement of all material facts is embodied in the opinion of the court. The affidavit of William Boon, upon which the relators, Kilgore and Johnson, were attached for contempt of the County Court of Gregg County, was based upon the information and belief of the affiant,

<p>1. Evidence. — Declarations of a party are evidence in his own behalf only when they are part of the res gestee.</p> <p>2. Bill of Exceptions. — The exclusion as ev idonee of declarations cannot be revised by this court when the bill of exceptions fails to embody them so as to enable this court to consider their relevancy and materiality.</p>

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

Tried below before the Hon. J. P. White. This cause was tried at .the September term, 1875, of the court below. Besides the general allegations condensed in the headnote, the indictment charged that the accused gave the prescribed medicines for one Lee Abar, and divers other citizens of said county, and then and there charged. and received money for such medicines and for his services as a physician.

Tried below before the Hon. M. H. Bonner. The opinion of the court fully discloses all material facts. The verdict and judgment awarded the appellant four years in the penitentiary.

Tried below before the Hon. M. H. Bonner. The indictment charged the appellant with seriously threatening, on August 1, 1877, to take the life of J. M. Williamson. The appellant was the son-in-law of Williamson, but, on account of some unexplained animosity, the latter had forbidden him to come on his premises.

Tried below before the Hon. G. H. Noonan. The case made by the state was mainly dependent on the dying declarations of Luciano Cantu, the deceased, a Mexican for whose murder, on February 25, 1877, the appellant and one Juan Coy, also Mexicans, were jointly indicted. The appellant, Francisco Garza, was alone upon trial.

Tried below before the Hon. J. A. Carroll. The facts germane to the rulings are disclosed in the opinion. The indictment jointly charged the appellant, his brother Andrew, J. W. Bell, and Albert Harris with the murder, in the county of Montague, of one It. S. Morrow, on September 5, 1873. The appellant alone was on trial.

Tried below before the Hon. E. Lewis. A sufficient statement of the facts to elucidate the rulings will be found in the opinion. The jury assessed against the appellants three years in the penitentiary.

<p>1. Notice of Appeal. — The Code is imperative and mandatory in its requirement that the notice of an appeal shall not only be given in open court, but be entered of record.</p> <p>2. Same. — An entry upon the judge’s docket that “the defendant gives notice of appeal ” is not an entry “ of record,” nor tantamount thereto.</p> <p>8. Same—Practice nr this Court. — A transcript of a felony case contained no notice of appeal other than an entry transcribed from the judge’s docket. This court, on motion of the attorney general, dismisses the appeal, hut without prejudice to whatever rights the appellant may have under article 3192, Paschal’s Digest, which provides that an appeal, if demanded, shall he allowed after sentence.</p>

Tried below before the Hon. James Hubbard, County Judge. The opinion states the case. The time when the “ cutoff” was made does not affirmatively appear in the evidence, but enough appears to show that it was recent — say within a half dozen years prior to the trial.

Tried helow before the Hon. E. Dougherty. The charge against Longworth, the principal obligor, was obtaining money under false pretenses. The town of Brackett is the county seat of Kinney County.

<p>Habeas Coepus.— This court reasserts its practice to forbear comment on the evidence in habe.as-c.orpus cases.</p>

Tried below before the Hon. B. L. Richey, County Judge. The appellant, a single man, and Lovis Rutter, a married woman, were jointly indicted for living together in adultery. The appellant had a separate trial, from the result of which ;he appeals.

Tried below before the Hon. M. H. Bonner. A statement of this case will be found in the report of a former appeal, 44 Texas, 64.

Tried below before the Hon. J. D. Templeton, County Judge. The jury found the appellant guilty, and assessed a fine of $225 against him.

Original application to the Court of Appeals for a writ of mandamus.

Tried below before the Hon. J. P. White. The brief of the appellants gives a full statement of the case and a concise review of the various enactments involved.

Tried below before the Hon. J. W. Pattersox. The special act of 1873, incorporating the town of Decatur, empowered the municipal authorities to enact bylaws not inconsistent with the Constitution and laws of the state, and to enforce their by-laws by fine not over $100, or by imprisonment not more than ten days, or by both fine and imprisonment within those limits.

Tried below before the Hon. D. M. Prendergast. The indictment was for theft of a horse. The jury found appellant guilty, and awarded him five years of the penitentiary.

Tried below before the Hon. J. A. Carroll. In the case of Taylor v. The State, reported at page 169 of the present volume, will be found a full detail of the evidence in respect of the horrible atrocity out of which originated that, as well as the present, prosecution. The evidence in the two cases being substantially, and for the most part literally, the same, there is no necessity to reiterate it here.

Tried below before the Hon. E. H. Coleman, County Judge. The opinion of the court discloses the character and material facts of the case. It was rendered at Austin in June, 1877, but ordered to be recorded at Galveston because the case pertained to that branch of the court.

Tried below before the Hon. S. Hare. This case was appealed to the Supreme Court, before the creation of the Court of Appeals. All material facts are disclosed by the opinion.

<p>1. Scire Facias. — To sustain a judgment final by default, a writ of seire famas issued on a forfeited recognizance or bail-bond should comprise the substantial requisites of both a petition and a citation. It should not only disclose the character of the obligation—whether a recognizance or a bail-bond— on which the judgment nisi was entered, but should also set out its substance, so as to apprise the defendants and inform the court of the foundation of the proceeding and the gravamen of the complaint.</p> <p>2. Same. —It is error to take judgment final by default against the sureties in a forfeited recognizance or bail-bond, and not also against their principal.</p>

Tried below before the Hon. J. Fitz Simmons, County Judge. The charge in the indictment was that the appellant, “ on the first day of September, in the year of our Lord one thousand eight hundred and seventy-seven, in the said county of Nueces, and on divers other days and times between that day and the finding of this indictment, on and across a certain public road, then and there lawfully established and classified as a first-class road, which public road is commonly known…

Original motion in this court to reinstate on the docket the case of the appellant, which had previously been dismissed on suggestion of the attorney general. The opinion discloses all material facts.

Tried below before the Hon. T. C. Barden. At the September term, 1874, of the District Court of Calhoun County, James Taylor and the appellant, William Taylor, were jointly indicted for the murder of Gabriel Slaughter on March 11, 1874. What has become of James Taylor or his case is not disclosed by this record.

<p>Appeal from the County Court of Houston. Tried below before the Hon. S. A. Miller, County Judge.</p> <p>The opinion states the case.</p>

<p>1. Hew Total. —It is not cause for new trial that the accused, shortly before the trial, approached the prosecuting witness and elicited from him a statement of what he would testify, and that, relying on such statement, accused went to trial instead of continuing his case for designated absent witnesses who would prove certain facts material to his defense; whereas, the prosecuting witness, at the trial of the case, testified differently from the statement so made by him to the accused.</p> <p>2. Same. —A defendant has no right to rely upon the witness of the state to establish his defense.</p>

<p>Practice nr the Court or Appeals. — The rule is now well settled that in misdemeanors the judgment will not be reversed on account of error in the charge to the jury, unless exception was duly reserved to the charge at the time of the trial.</p>

Tried below before the Hon. S. A. Miller, County Judge. According to the evidence for the státe, the accused was driving a team and hauling a barrel of flour for Murchison, and took some ten pounds out of the barrel, under the circumstances indicated in the refused instruction.

<p>Appeal from the County Court of Houston. Tried below before the Hon. S. A. Miller, County Judge.</p> <p>The charging part of the indictment alleged that the appellant, “ on the twenty-eighth day of December, in the year of our Lord one thousand eight hundred and seventy-six, in the county of Houston aforesaid, did unlawfully and willfully go into a ball-room with a pistol about his person, the said ball-room being at Mrs. Simpson’s, where an assembly was then and there congregated for social purposes, the said Jim Owens not then and there being a sheriff, nor then and there being a militiaman nor policeman in actual service, nor peace officer, nor other officer, nor then and there being at his own place of business, nor on his own premises, nor then and there being a traveler in the state, nor then and there beins: in fear of an immediate and unlawful attack upon his person or property, but then and there carrying said pistol unlawfully,” etc.</p>

Tried below before the Hon. S. A. Miller, County Judge. Held: and which pistol was then and there a deadly weapon, in and upon one Eddie Currie, in the peace of Grod and of the said state then and there being, unlawfully, willfully, and with intent then and there to injure the said Eddie Currie, an aggravated assault did make, and that the said John I. Burton did then and there, with the pistol…

<p>Appeal from the County Court of Houston. Tried below before the Hon. S. A. Miller, County Judge.</p>

Tried below before the Hon. H. C. Pleasants. . The material facts are set forth fully in the opinion of the court-.

Tried below before the Hon. H. C. Pleasants. This indictment charged the theft of a heifer belonging to one Uriste. The animal was taken under the same circumstances as those detailed in the preceding case against the appellant.

<p>-Appeal from the County Court of Houston. Tried before the Hon. S. A. Miller, County Judge.</p>

Tried below before the Hon. S. A. Miller, County Judge. The mother and sister of the accused testified in his behalf and contradicted material parts of the concurrent testimony of three witnesses for the state.

<p>Practice. — One of the most important of the preliminary steps in a criminal prosecution is the plea of “not guilty.” A judgment of conviction will he set aside on appeal, unless the record affirmatively shows that the plea was either interposed hy the accused or was entered for him.</p>

Tried below before the Hon. M. H. Bonner. The indictment was for theft of a mare worth $100. The jury found the appellant guilty, and awarded him five years in the penitentiary.

<p>County Court.—Under the present Constitution, and the County Court Act of 1876, a prosecution cannot be instituted in the County Court by means of an affidavit, without an information. An affidavit is futile unless followed by an information, and an information void unless based upon an affidavit.</p>

<p>Appeal from the County Court of Trinity. Tried below before the Hon. J. E. B. Laird, County Judge.</p>

Tried below before the Hon. E. B. Turner. The indictment was for theft of a mare worth $40. The jury found the appellant guilty, and assessed his punishment at ten years in the penitentiary.

<p>1. Enzormations—Amendment.— On suggestion of the county attorney that an information misstated and that the affidavit omitted the name of the accused, the court below permitted the substitution and insertion of the name suggested by the county attorney. Held, such error as not merely necessitates the reversal of the conviction, hut vitiates the entire proceedings and invokes the dismissal of the cause.</p> <p>2. Same. — The statutory provisions which authorize the change of a defendant’s name in an information or indictment have reference to cases in which the defendant suggests that his name is misstated. If he makes no such suggestion, the cause proceeds as though his name were truly alleged, and the misnomer is no defense.</p>

<p>Appeal from the County Court of DeWitt. Tried below before the Hon. O. L. Threlkeld, County Judge.</p> <p>The opinion states the case.</p>

Tried below before the Hon. R. S. Walker. The indictment was found at the September term, 1875, of the court below, and charged Jefferson Williams, Spencer Bradley, William Graham, and the appellant with the murder of William H. Page, in the county of Houston, ou July 6, 1875. The appellant alone was on trial.

Tried below before the Hon. H. C. Pleasants. The deceased, Bill Johnson, was a colored boy in the employ of Jack West. On or about April 16, 1873, while herding horses for his employer near a public road, he was shot in the back, and died eighteen days afterwards from the eifoct of the wound. According to the evidence, the deed was the inspiration of mere drunken wantonness and thirst for blood. The state introduced no witness who saw the perpetration of the crime.

<p>Assault with Intent to Commit Rape.—Note the evidence held sufficient in this case to sustain a conviction for an assault with intent to commit a rape by force, though the only violence used was an attempt to remove the bedclothes under which she was sleeping.</p>

Tried below before the Hon. G-. H. Noonan. The indictment was for theft of a cow. The jury found the appellant guilty, and assessed his punishment at two years in the penitentiary.

Tried below before the Hon. E. Lewis. Gr. J. Shaw, owner of the mare alleged to have been stolen, testified for the state that on the night of December 25, 1874, about eight o’clock, his mare was taken, without his consent, from a rack to which he had tied her in the town of Weimar, Colorado County, Texas. Witness’ saddle, bridle, and rope were on her, and were taken with her.

Tried below before the Hon. E. Lewis. J. M. King, who inferentially appears to have been an officer of the law, testified for the state that, on the night of January 26, 1877, he was out summoning witnesses in a certain case, and was riding along a public road in company with J. H. Ellis, when they heard the report of a pistol behind them and some one halloo. Stopping a little while, they waited until Nelson Hodges and three other negroes rode up to where they were.

Tried below before the Hon. G. H. Noonan. The facts immediately involved in the rulings are fully set forth in the opinion. Three witnesses were introduced by the state who saw part of the fatal difficulty between the appellant and Woodson, the deceased. The general purport of their testimony was similar to that of the witness Vincent, the most material part of which is set out in the opinion of this court.

Tried below before the Hon. G. Cook. The appellant was indicted and convicted of keeping and maintaining, in the city of Galveston, a nuisance known as “Freedman’s Hall,” and a fine of $500 was assessed against him by the jury. His recognizance for an appeal appears in the transcript, and recites that he “gave notice, in open court, of appeal from said judgment to the Court of Appeals of the state.”

Tried below before the Hon. J. E. Fleming. The assault was made with a pistol, but the indictment did not allege that any particular weapon was used. The jury found the appellant guilty, and assessed his punishment at two years in the penitentiary.

Tried below before the Hon. L. W. Moore. The accused, very soon after the theft of the stolen oxen and ten days or more before his arrest, exchanged them to the principal state’s witness. The jury, finding him guilty, allotted him three years in the penitentiary.

<p>Habeas Corpus sued out to the Court of Appeals.</p>

<p>Practice nr the Court or Appeals. —Unless a statement of facts is brought up m the record, the inquiry here is merely whether the indictment is sufficient to sustain the charge of the court and the finding of the jury.</p>

<p>1. Theft. — A domestic animal is in possession of its owner when in its accustomed range.</p> <p>2. Same-—Bvedence.—"When a stolen animal is identified and proved hy its flesh marks, the prosecution need not identify it hy a recorded brand.</p>

<p>Adultery.—Indictment for adultery must charge that, at the time the offense was committed, either the accused or the paramour of the accused was a married person, and should directly aver to whom married.</p>

<p>1. New Tbiai. —An application for a new trial to procure newly-discovered testimony must he sworn to, and must be accompanied by the affidavit of the newly-discovered witness, or cause he shown why not so accompanied.</p> <p>2. Same.—Newly-discovered testimony to impeach a witness who testified at the trial is not ground for the grant of a new trial.</p>

<p>1. Fraudulent Disposition oe Property Subject to Lien.—Article 773 of the Penal Code (Pose. Dig., art. 2425) makes it a penal offense (1) to remove out of the state any personal property on which the accused has given any written lien; (2) to sell such property; or (3) to “otherwise dispose of” such property—an intent to defraud the holder of the lien being an essential ingredient of each of these offenses.</p> <p>2. Same.—A removal of such property, with such intent, from one county in the state to another is not an offense under said article. The expression “otherwise dispose of” does not include a removal or sale, but does include any other mode of placing the property beyond the reach of the holder of the lien, with such intent.</p> <p>3. Fraudulent Sale oe Such Property—Venue oe this Oeebnse.— The Code of Criminal Procedure enumerates various offenses for which a prosecution may be instituted in either of different counties, but the offense of selling property under lien, with intent to defraud, is not among them; and consequently such a prosecution must be commenced in the county where the offense was committed—i. e., where the sale was mt'dj— irrespective of where the lien was given or the property brought from.</p>

<p>Evidence.—Note the evidence, mainly circumstantial, adduced in this case to identify the accused as the taker of a stolen animal, and in view of which this court declines to disturb the conviction.</p>

<p>Appeal from the Criminal District Court of the county of Galveston. Tried below before the Hon. G. Cook.</p> <p>The indictment charged that the appellant, “ on the 21st day of the month of May, A. D. 1876, in the said county of Galveston, in the state of Texas, with force and arms, then and there being a person of envious, evil, malicious, and wicked mind, and of a most malicious disposition, and then and there unlawfully, willfully, and maliciously minding, contriving, and intending, as far as in him lay, to injure, oppress, and vilify one William Boyd, he, the said William Boyd, then and there being an alderman of the city of Galveston, and a good, peaceable, reputable, and worthy citizen of said state, and then and there being an officer of the said city of Galveston, to wit, an alderman of the said city, and to bring him, the said William Boyd, into public scandal, hatred, infamy, and disgrace, then and there of his, said Daniel F. Morton’s malice, hatred, and ill-will towards said William Boyd, unlawfully, willfully, and maliciously, and with intent to injure him, said William Boyd, and with the intent then and there to injure the reputation of said William Boyd, then and there did maliciously make, publish, and circulate, in a certain newspaper entitled The Commoner, the said Daniel F. Morton then and there being the editor and proprietor of said newspaper called The Commoner, certain false, scandalous, and defamatory, and malicious statements of and concerning said William Boyd, and then and there affecting the reputation of said William Boyd, conveying that said William Boyd had been guilty of the penal offenses of murder and of embezzlement, and that he, the said William Boyd, had been guilty of acts disgraceful to him as a member of society, the natural consequence of which being to bring him into contempt among honorable persons; and, further, that said William .Boyd, while in office as alderman of the city of Galveston, was dishonest, and, therefore, unworthy of such office, containing therein the false, malicious, defamatory, and libelous words, figures, and matters following, that is to say: ”</p> <p>The indictment then set out the libelous publication in haze verba, with the necessary innuendoes to show its meaning and application, and concluded “ to the great damage, disgrace, scandal, and infamy of him, said William Boyd, and against the peace and dignity of the state.”</p> <p>The jury found the defendant guilty, and assessed his punishment at afine of $250.</p>

<p>Appeal from the District Court of Brazoria. Tried below before the Hon. W. H. Burkhart.</p> <p>The indictment was for the theft of a trunk, and certain clothing contained in it, of the aggregate value of $70. After his arrest the accused told where he had carried the trunk, and took his captors to it. The jury allotted him two years of the penitentiary.</p>

<p>1. Embezzlement.—Paktneks sustain the character of principals as well as agents, and have a community of property and interest in the partnership effects, and, therefore, cannot embezzle the funds of the partnership which they wrongfully apply to their individual uses without mutual consent. But this immunity does not attach as long as the partnership contract is executory only, or dependent upon unperformed conditions precedent.</p> <p>2. Same — Case Stated. —Appellant and one B. agreed to furnish equal capital and engage as partners in a venture, to be managed by appellant, who was to purchase the stock and conduct the business. B. paid his part of the capital to the appellant, who thereupon abandoned the venture and appropriated B.’s money to his own use. Held, that no partnership wras consummated between B. and appellant, so as to screen the latter from amenability for embezzlement of the farmer’s funds.</p>

<p>Appeal from the District Court of Caldwell. Tried below before the Hon. J. P. White.</p> <p>So far as the rulings of this court are concerned, the facts of this case are clearly stated in its opinion. The statement of facts is voluminous, the witnesses numerous, and the testimony conflicting in some important respects; and, as the case stands for trial again, an attempt to detail the evidence is not deemed advisable.</p>

<p>1. Intebpbetation op the Code. —Article 321 of the Penal Oode defines the offense of conveying into jail any article useful to aid the escape of a prisoner, with intent to facilitate the escape of a prisoner therein lawfully detained on an accusation of felony. Held, that this is not an accessorial, but a substantive, offense—the culpability of a party charged therewith being nowise dependent on, or affected by, the guilt or innocence of the succored prisoner.</p> <p>2. Accessaries. —Article 225 of the Penal Oode defines accessories, and the next article exempts as accessories a husband or wife, brother or sister, and lineal relatives of an offender. Held, that these provisions afford no immunity to any such a connection or relative for conveying into a jail articles useful to aid the escape of a prisoner, with intent to aid the escape of a prisoner accused of felony.</p> <p>8. Accomplice Testimony. — On the trial of appellant for conveying into a jail certain tools to aid the escape of a prisoner, the state introduced as a witness another prisoner who also escaped. Held, that the witness, even if he used the tools in effecting the escape of himself and co-prisoners, was not an accomplice or partie&ps criminis in the offense of conveying the tools into the jail; and, therefore, his testimony, though uncorroborated was not subject to the statutory disparagement of accomplice testimony.</p> <p>4. Evidence. — To prove that a succored prisoner was detained in the jail on a charge of felony, the state introduced as evidence an indictment which charged him with theft. Held, that, as every theft is not a felony, this was not sufficient evidence to sustain a conviction, under article 321 of the Penal Oode, for conveying tools into the jail to aid the escape of a prisoner detained in jail on a charge of felony.</p> <p>6. Evidence op Reputation.—A prisoner confined in jail on a charge of theft, having been examined as a witness for the state, the defense proposed to prove by his fellow-prisoners that his reputatipn for truth and veracity among them was bad. Held, that such proof was properly excluded.</p>

<p>Appeal from the District Court of Colorado. Tried below before the Hon. E. Lewis.</p> <p>Early on February 25, 1876, Matheus Malsch came to a sudden and violent death while traveling the publib road from Frelsburg, in Colorado County, to Columbus, the county seat. His body exhibited three stabs in the breast, one gunshot wound in the hip, and another in the back of the head. According to the medical testimony, either of the three stabs was mortal.</p> <p>Two witnesses, named Craig, lived some 200 yards from the scene of the homicide, and, a few minutes previous to its commission, saw Emile Houillion ride up the road towards the spot. Hearing a pistol-shot, and looking up the road, they saw Houillion pursuing, on horseback, a man who was on foot, and who cried “murder.” These witnesses heard a second shot, and one of them testified that it was fired by Houillion. Directly they saw Houillion ride up to a fence and throw something over in the field, where a bloody knife was subsequently found. He then rode rapidly back and spoke to one of these witnesses, saying that a man down there had shot at him from behind a tree, but would never shoot at any one else. The ground where the rencounter took place, however, was very muddy, and, on examination, no sign of any one behind a tree was found; nor was any weapon found on or about the deceased.</p> <p>It was fully proved that for a year or two before the killing a bitter enmity existed between the accused and the deceased. It seems to have been connected with a lawsuit between them, and also with a peculiar correspondence between the deceased and the wife of the accused. Many witnesses were introduced on both sides, eliciting a large amount of evidence pertinent to the mutual relations between the parties, and the causes of their enmity. No useful purpose, however, would be subserved by giving a detail of the evidence.</p> <p>The charge to the jury apprised them of their power, under the Constitution of 1869, which was in force in February, 1876, to substitute confinement in the penitentiary for life in lieu of the death penalty, in case they found the accused guilty of murder in the first degree. Their verdict was a conviction in the first degree, without an exercise of this power, and the court below adjudged the penalty of death against the accused.</p> <p>The opinion of this court speaks of the entry upon the minutes of the court below of the presentment of the indictment by the grand jury. It was as follows :</p> <p>“ This day the grand jurors came into open court with their foreman, James C. Abell, and presented the following bill of indictment, to wit: ‘ The State of Texas v. E. Houillion. Murder.’ ”</p>

<p>Practice—Order op Docket. — As a general rule, criminal causes in the courts below should be called for trial and be disposed of in their order upon the docket. But, to promote the ends of justice, the court has discretionary power to allow a temporary postponement of the trial of a cause; and, unless the exercise of this discretionary power appears to have been abused, and the rights of the appellant prejudiced thereby, this court will not revise such action of the court below.</p>

<p>Iotobmatiohs. — The venue of the offense charged by an information must be alleged in the affidavit on which the information is based. If not alleged in the affidavit, the information is necessarily bad, notwithstanding it alleges the venue of the offense.</p>

<p>Imtormation.—Article 404 of the Code of Criminal Procedure prohibits the presentment of an information until oath has been made by some credible person, charging the defendant with an offense. This article is applicable to informations in the County Courts under the acts of 1876; and, consequently, such an oath is indispensable to the validity of an information in a County Court.</p>

<p>Appeal from the County Court of Colorado. Tried below before the Hon. J. W. Johnson, County Judge.</p>

<p>Error from the County Court of Colorado. Tried below before the Hon. J. W. Johnson, County Judge.</p>

<p>1. ChanMb op Venue. — The act of 1876, “to provide for the change of venue by the state in criminal cases,” does not affect the provisions of the Code of Criminal Procedure respecting the right of a defendant to a change of venue.</p> <p>2. Same.—If, on a change of venue, objection exists to the “adjoining county the court-house of which is nearest to the court-house of the county where the prosecution is pending,” the objection must, if relied on, be made to appear in the application for a change of venue; and, to make the objection available on appeal, a bill of exceptions, embodying the application and the facts, as well as the ruling excepted to, must be brought up in the record.</p> <p>3. Same— Case Stated.—After granting the continuance of a murder case, the court below, at the instance of the accused, acted on his application for a change of venue, and ordered the venue to be changed to the county where he was tried and convicted. The order recites that the accused excepted to the county whereto the venue was changed, and, though he took no bill of exceptions, he assigns as error that the order was made after the case had been continued. Held, that, as it was at his own instance the application was acted on after the case had been continued, and as he took no bill of exceptions, he cannot be heard to complain of the action of the court. Held, further, that the order changing the venue could not be collaterally attacked, in the court to which the venue was changed, by motion to vacate the order or by demurrer or plea to the jurisdiction of the latter court.</p> <p>4. Special Venire. — The jury law of 1876 does not repeal article 548 of the . Code of Criminal Procedure, which provides that a special venire shall consist of not less than thirty-six nor more than sixty persons; and, whatever the reasons for the limitations thus prescribed, the courts should respect and obey them.</p> <p>6. Same — Service op Copt.—Before trial for a capital offense, the accused is entitled to one day’s service of a copy of the names of the persons actually summoned under the special venire. Service of the names drawn for the venire is not a compliance with this provision of the Code.</p> <p>6. Proop op Venue—Transcript.—In preparing a case for this court on appeal, care should he taken that proof of the venue of the offense, if made at the trial, he affirmatively shown in the statement of facts. The venue being a jurisdictional fact, unless evidence of it appears in the transcript a conviction cannot be allowed to stand.</p> <p>7. Bulbs of Court. — The attention of judges, prosecuting attorneys, and clerics of courts is urgently directed to the Buies of Court, published in 47 Texas and 2 Texas Court of Appeals Beports, for the manner of setting out in the transcript the proceedings in the trial of a criminal cause, to the end that all technical objections may be obviated.</p>

<p>1. Theft—Marks and Brands. — This court has never held that no other evidence than the record of brands is competent to identify a stolen branded animal.</p> <p>2. Same—Evidence. —If paroi evidence of a recorded brand be not objected to when offered, a subsequent objection to it comes too late.</p> <p>3. Good Character—Charge of the Court.—Evidence of his general good character in that aspect which is impugned by the accusation is admissible for the accused, and is to be considered by the jury in determining his guilt or innocence; but to instruct the jury as to the consideration they should accord to such proof would be to charge upon the weight of evidence.</p> <p>4. Practice in this Court. — This court consistently declines to disturb a verdict and judgment unless they are clearly wrong.</p>

<p>Appeal from the County Court of Gonzales. Tried below before the Hon. J. S. Conway, County Judge.</p>

<p>1. Statement oe Facts. — The approval and signature of the judge is indispensable to the authentication of a statement of facts. If agreed to and signed by the attorneys alone, it will not be recognized by this court as any part of the record.</p> <p>2. Jury nr the County Courts. —In a misdemeanor trial in a County Court, one of the six jurors was, by agreement, excused on account of the sickness of his wife, and the remaining five returned a verdict signed by each of them. JHeld, that in receiving the verdict the court below did not err.</p>

<p>1. Accomplice Testimoht. — The requirements of the Code in respect of accomplice testimony are satisfied if, the corpus delicti being proved, there is evidence which, independent of the accomplice’s testimony, tends in some degree to connect the accused with the commission of the offense. The rulings on this subject in Nourse v. The State, 2 Texas Ct. App. 304> quoted with approval.</p> <p>2. Same. — Complicity in the commission of an offense does not disqualify the accomplice as a witness; but, to support a conviction, his testimony must be corroborated as required by the Code. Pase. Dig., art, 3118. See the corroborating evidence held sufficient in this case to warrant a conviction for theft on the testimony of an accomplice.</p> <p>8. Same. —In Paschal’s Digest, article 3118, the term accomplice has a much more comprehensive signification than the technical definition given in article 1814. Irvin v. The State, 1 Texas Ct. App. 301, cited by the court; and see Davis v. The State, 2 Texas Ct. App. 588.</p> <p>4. Mistrial. —After a mistrial the status of the cause is the same as though there had been no trial, and the case may again be tried at the same term. If the accused desires the trial deferred until the next term, he must malee his showing for a continuance.</p> <p>6. Petit Jury.—The rulings in Burfey v. The State, ante, p. 519, respecting the organization of a petit jury, are referred to by the court, and approved.</p>

Tried below before the Hon. S. Ford. The killing of Ezra Tarver by the appellant occurred in a drinking-saloon in Cameron, the county seat of Milam County, on October 30, 1876. These parties, it seems, were strangers to each other, but appellant was in company with John Lamkin, who seems to have incurred the ill-will of Tarver.

Tried below before the Hon. L. W. Moore. Charley Foster, the detective, testified for the state. According to his testimony the burglary was first suggested by the appellant. The substance of his statements, in other respects, is condensed in the third head-note.

<p>1. Variance.—Indictment described a stolen ox as “ one red and white spotted ox, branded on the left hip thus: “JA G; ” whereas in the evidence it was described as a “red and white spotted steer, branded on the left thigh with the letters JAG, connected.” Held, not a material variance, and this case distinguished from Ranjel v. The State, 1 Texas Ot. App. 461.</p> <p>2. Theft—Bubden of Pboof. — When the state has adduced sufficient evidence to support a conviction, the accused has the burden of establishing any excuse, justification, or explanation he may assert—as, for instance, a bona-fide claim of ownership of an animal charged to have been stolen.</p>

Tried below before the Hon. G. Cook. The indictment charged the appellant with the murder of Joseph Shannon, by shooting him with a pistol, on January 30, 1877. Shannon and the appellant, it appears, were competing traders in the hide business at Houston, and this homicide seems to have resulted from the state of feeling aroused by their competition. On January 30, 1877, a farmer named Henry Huffman brought to market there a parcel of hides and some cotton.

<p>Appeal from the Criminal District Court of the county of Galveston. Tried below before the Hon. G. Cook.</p> <p>The opinion of the court fully discloses all material features of the case.</p>

<p>1. Practice rtf the Court oe Arreáis. —A series of adjudications has firmly established the general rule that, without a statement of the facts in evidencebefore the courtbelow, this court on appeal will only consider whether the indictment will sustain the instructions given to the jury, and the judgment rendered.</p> <p>2. Practice — Statement rnr Pacts. — Though a convicted defendant has failed to move for a new trial, the Code entitles him, if he appeals, to have a statement of the facts certified and sent up with the record; but it is the duty of the parties in the first instance to make out the statements, and, if they disagree, it then devolves upon the judge to make out the statement from those of the parties and his own knowledge. The judge is not required to make out the statement in the first instance and of his own motion.</p> <p>3. Murder —Indictment. — The kind of malice, whether express or implied, need not he distinctly alleged in an indictment for murder; nor is it necessary to aver the portion of the body upon which the mortal wound was inflicted.</p> <p>4. Ohar&e oe the Court. — The jury in a murder case were instructed that “the indictment charges that the homicide was committed in the month of March, 1875, and the evidence shows such to have been the case.” No exception was taken to this assumption of what the evidence proved, and no statement of facts is brought up in the record. Held, that the only question here is whether this error was calculated to injure the rights of the accused, and that, without the evidence before it, this court cannot perceive that it was.</p>

<p>1. Special Ventre.—At bis trial for murder, the accused moved to quash the special venire, on account of discrepancies between the names of three of the persons drawn thereon, and the names as written in the copy served on him of the list of those summoned under the venire. Held, that the motion was properly overruled, there being nothing to indicate that the accused was misled or anywise prejudiced by the discrepancies, and it appearing that none of the three were on the trial jury, and that the accused did not exhaust his challenges.</p> <p>2. Same. — It is not necessary that the venire or the copy of the list served on the accused shall designate the offense of which he is charged.</p> <p>3. Continuance.—An application for a continuance to obtain the testimony of a witness residing out of the state should show that proper effort had been made to take his deposition, as authorized by the Code.</p> <p>4. Same—Evidence. — That a third person had voluntarily acknowledged that he committed the crime for which the accused was on trial was not competent evidence for the accused to elicit from persons who heard the acknowledgment made; and, therefore, a continuance to obtain such evidence was properly refused.</p> <p>6. Diligence. —Process for witnesses must he sued out in a reasonable time, and the application for a continuance to procure their testimony must show to whom and when the process was delivered. Nothing is presumed in aid of an application for a continuance.</p> <p>6. Privilege oe Counsel. — A defendant’s counsel is entitled to a reasonable time to present his client’s case to the jury, and an arbitrary disregard of this right would be error. But, in regulating the proceedings in his court, the presiding judge is clothed with a large discretion, the exercise of which will not he revised unless it was abused to the prejudice of the accused.</p> <p>7. New Trial. — When misconduct is imputed to a juror to impeach the verdict, his affidavit is admissible to refute the aspersion and support the verdict.</p>

<p>Appeal from the District Court of Gregg. Tried below before the Hon. M. H. Bonner.</p> <p>Powell, the appellant, was indicted, February 4, 1878, for the murder of August Rein eke, in the county of Gregg, on December 17, 1877. On February 14, 1878, he was put upon his trial, which resulted in a verdict of guilty of murder in the first degree, and judgment of death thereupon.</p> <p>Rein eke, the deceased, kept a drinking-sa-loon atMauthe’s Mills, in Gregg County, some eight miles west of the town of Longview. On the morning of December 18, 1877, he was found dead upon the floor of his establishment. His throat was effectually cut from ear to ear, severing the windpipe and arteries, and upon his head were two fractures of the skull, apparently inflicted with a stick or bludgeon. He was partly covered with straw, which seemed to have been set on fire and to have gone out.</p> <p>A very explicit account of the homicide was given by Rath an Reid, who, says the record, was “ indicted for the same charge of murder, in a separate indictment, and who turned state’s evidence against the defendant.’1</p> <p>Refid testified that he lived in Wood County, and knew Powell, the defendant. Between nine and ten o’clock of Monday night, December 17, 1877, the defendant, witness, and Tom Fields (alias Ben Hadley) rode up near Reineke’s saloon and hitched their horses, of which one was a large horse and the others ponies. Fields cut a large hickory stick for himself, and cut and gave to witness another stick, but witness dropped his just before entering the saloon. Fields concealed his stick under his coat, and all three went into the saloon and took a drink. Powell and Eeineke engaged in a game of billiards, during which, and when Eeineke’s back was turned towards Fields, the latter struck him on the head and knocked him partially down. Fields then made witness strike Eeineke, and witness hit him a lick on the head, and then Powell, the defendant, took a stick which was in the house and struck Eeineke with it. Witness, according to his direct testimony, ran out of the house at this juncture, and went to where the horses were hitched, and in a little while Fields and the defendant came, and Fields said he had cut Eeineke’s throat and taken all the money out of his pockets, and had put some straw on him and set it on fire. He brought with him a black suit of clothes and put them in the saddle-bags, and the next day he took out'the coat and put it on. From the scene of the murder the three assassins went to the witness’ house, in Wood County, whence Fields and the defendant went on, saying they were going to Fannin County.</p> <p>On his cross-examination this witness made two statements somewhat different from his direct testimony. He said : “ When we went into the saloon, Ben Hadley (alias Fields) had his stick under his coat, and I had mine in my hand,” and that, “ after Eeineke was tilled, we stayed in the house about one-half an hour.” But, at a later stage of his cross-examination, he repeated his first statement that he ran out of the house immediately after Powell struck the deceased.</p> <p>Cherry Jones, for the state, testified that she lived in Fannin County, and that between nine and ten o’clock of a Friday night, a little before Christmas, 1877, the defendant and Ben Hadley (alias Tom Fields) came to her house. The latter brought with him a pair of saddle-bags, and witness saw him hang up a black coat behind the door. A few minutes after they arrived, the sheriff of Fannin County and some other men came and arrested Hadley, and he then pulled off his outside pants, and took off a pair of black pants, which he threw in witness’ bed. Witness, a few days afterwards, gave the black coat and black pants to a deputy sheriff, and she thought she recognized as the same a black coat and pants exhibited to her in court, and which other witnesses proved were the property of Eeineke, the deceased. She stated that, about two weeks before Hadley and the defendant came to her house on the Friday night of which she spoke, they left there together, and she had not seen them during the interval.</p> <p>By other witnesses the state proved that the defendant was seen with Hadley in the immediate neighborhood of Eeineke’s saloon, a day or two previous to the murder, and that Hadley, in defendant’s presence, made inquiry whether Eeineke was making money; that Hadley and the defendant were riding ponies, and that the fresh tracks of two ponies were found near the saloon the morning Eeineke was found dead. And there was other testimony for the state, both corroborative and independent of that of Eeid, tending to inculpate the defendant, Powell.</p> <p>The jury returned a verdict of murder in the first degree, and the penalty of death was adjudged by the court.</p> <p>The case of Fields (alias Hadley), for the same murder, was tried at the same term of the court below, and with the same result. It, also, was appealed to this court, and the judgment was affirmed on the same day as the present case, and on a record presenting substantially the same state of case; wherefore the opinion reiterated the rulings in the present case, and is not reported.</p>

<p>Appeal from the District Court of Lamar. Tried below before the Hon. J. Bledsoe.</p> <p>The indictment charged an assault with intent to murder Henry Donaldson.</p>

<p>1. Lost Indictment, how Supplied. — The Code provides that, “ when an indictment has been lost or mislaid, the district attorney may suggest the fact to the court, and the same shall he entered upon the minutes of the court, and in such case another indictment may be substituted, upon the imiten statement of the district attorney that it is substantially the same as that which has been lost or mislaid.” Compliance with this provision is not shown by a record-entry as follows: “Loss of papers suggested; the county attorney has leave to substitute the same,” followed with a substitute indictment, certified by the attorney.</p> <p>2. Same. — The suggestion of loss should be in writing, should set out the facts, and be entered on the minutes of the court; and, upon the presentation of the indictment prepared as the substitute, accompanied by a written statement of the district or county attorney that it is substantially the same as that lost, an order of the court should be entered, showing that the substitution was allowed and made.</p> <p>8. Oath to the Jury.—Article 563 of the Code of Criminal Procedure (Pose. Dig., art. 3029) prescribes the oath to be administered to the jury in trials for capital as well as other offenses. It superseded the jury oath prescribed for capital cases by the act of 1846, and embodied in article 3990 of Paschal’s Digest.</p> <p>4. Charge of the Court—Pile-mark. — The record of a felony case must show that the charge of the court was filed. Failure to file the charge in such a case is fatal to a judgment of conviction.</p>

<p>1. Mumcipal Ordotaitoe. — A state law and a municipal ordinance upon the same subject may concurrently operate, if consistent with each other and in harmony with the Constitution.</p> <p>2. Same—Former CoimcTioir.—An act which is violative both of a state law and a police regulation of a town or a city is punishable under either or both, and a conviction under the one is no bar to a prosecution under the other.</p> <p>3. Same — Case Stated. — To an information in a County Court, charging him with an aggravated assault, the accused pleaded that for the same breach of the peace a Mayor’s Court had already tried him for an affray, and had adjudged him to pay a fine to the city wherein the offense was committed. SCeld, that the plea presented no defense to the information, and was properly overruled on exceptions. See the opinion in extenso.</p>

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

<p>1. Murder — Charge oe the Court. — Though in a murder case the charge to the jury on the first degree be in some respects objectionable, yet, if it be correct on the second degree, and the accused be convicted of the second degree, the conviction, if sustained by the evidence, will not be disturbed.</p> <p>2. Murder nr the First Degree. — To constitute murder in the first degree, no appreciable space of time need intervene between the formation of the homicidal intent and the homicidal act.</p> <p>3. Distinction Between the Degrees of Murder. — The difference between the degrees of murder does not result from the length of time taken to form the design to kill, nor from the speed with which that design is executed, but from the state and condition of the mind in which the design is formed. If the killing be done in pursuance of a formed design of a sedate, deliberate mind to kill the deceased, or to inflict upon him by any unlawful act some serious bodily injury whereof he may die, the killing is upon express malice, and murder in the first degree.</p> <p>4. Murder in the Second Degree. —If, with malice aforethought and intent to kill, the accused shot at another person, and unintentionally killed the deceased, the killing is upon malice implied by law, and is murder in the second degree.</p> <p>6. Oharqe of the Court.—If the evidence in a murder case be such that the jury cannot, in any view of it, find that the killing was done in the sudden heat of passion, arising from an adequate cause, it is not incumbent on the court to give in charge to the jury the law of manslaughter. Otherwise, however, if there he a doubt, however slight, that such is the character of the evidence.</p>

<p>1. Municipal By-laws. — The power of municipal corporations to make bylaws is necessarily subject to all limitations imposed by the "Federal and state Oonstitutions, the general laws of the state, and the provisions of their respective charters. '</p> <p>2. Same — Taxing Power. — The Constitution of this state empowers the Legislature to impose occupation taxes, but inhibits counties, cities, and towns from taxing occupations more than half the amount levied thereon by the state. The general law of the state levies annually, “ for every livery or feed-stahle, one dollar for each stall and one dollar for each hack, buggy, or other vehicle,” but imposes no specific tax on public vehicles other than those pertaining to livery and feed-stables. The city of Houston levied an annual tax of $25 on every “vehicle for transporting passengers or baggage, drawn by two animals.” Held, that this city tax violates the limitations imposed on municipalities by the Constitution and the general law of the state, and is, therefore, void.</p> <p>3. Police Powers.—-The authority of municipalities to adopt police regulations, and to collect taxes adequate to enforce them, is not impugned.</p>

<p>1. Habeas Corpus por Bail.—The venue of a murder case was changed from Gr. to C. County, and there the cause was twice continued on the application of the state; whereupon the defendants, having never asked a continuance, applied by habeas corpus to the District Court of 0. County for the privilege of bail, relying on article 524 of the Code of Criminal Procedure. Held, that the District Court of C. County, to which the venue was changed, thereby obtained plenary jurisdiction of the entire case, and had authority to entertain the application for bail. Seld, further, that habeas corpus was a proper mode of mailing the application, though in such a state of case a motion in the court below would suffice.</p> <p>2. Same.—Ho formal demand for a trial by the defendants was requisite to entitle them to apply for the privilege of bail; and, notwithstanding the continuance of the cause, they were authorized to make their application at the same term of the court whereat the second continuance was granted to the state.</p> <p>3. Same—Right oe Appeal. — The judgment of a District Oourt refusing bail has always been held the subject of appeal.</p> <p>4. Same — Evidence. —In a case of this character the record should bring up evidence of the ability of the applicant to give or procure bail, so as to enable this court, if bail be allowed, to determine the proper amount.</p>

<p>2. Gamuts. — “Pool ” is one of the games expressly prohibited by the Penal Code, and, though played upon a licensed billiard-table, is an offense against the law, provided money be bet; and the table-fees or the drinks are money in this sense.</p> <p>2. Accomplice. —Betters at the same game of faro, monte, pool, and the like, are several, not joint, offenders, and are not accomplices to each other. Hence, the uncorroborated testimony of one of them may suffice to convict the rest. A witness of this class is exempted from punishment, by the Code, and may be compelled to testify.</p>

<p>Appeal from the District Court of Busk. Tried below before the Hon. A. J. Booty.</p>

<p>1. Bail-bond is fatally defective unless “the offense of which the defendant is accused be distinctly named in the bond, and it appear therefrom that he is accused of some offense against the laws of the state.” Pase. Dig.; art. 2732. Note in the opinion the collocation of decisions upon this provision of the Code.</p> <p>2. “Malicious Mtschttun” designates no offense against the laws of this state. Hence a recital in a bail-bond that the defendant is accused of “malicious mischief” is nugatory.</p> <p>8. Notwithstanding judgment final has been rendered on a forfeited bail-bond, without objection that the bond neither named nor described any offense, yet, as the objection goes to the foundation of the action, it is available on appeal or writ of error.</p>

<p>1. Constitutionality on the Sunday Law. — The act of December 2, 1871, known as the “ Sunday Law,” makes it a misdemeanor for any dealer in a lawful business to sell or barter (except drugs or medicines) on Sunday, between nine o’clock, a. m., and four o’clock, p. m., within the limits of any city or town, under a penalty of not less than $20 nor more than $50. Held, that this enactment is constitutional and still in force, is not a “local law,” nor repugnant to the guaranty of equal rights given by the Constitution of 1876.</p> <p>2. “Special and Local Laws.” —A retroactive effect, it seems, will not he given to that provision of the Constitution which inhibits the enactment of special and local laws upon certain subjects.</p>

<p>■ Appeal from the Comity Court of Goliad. Tried below before the Hon. W. M. Rant, County Judge.</p>