Volume 30 — Texas Court of Appeals Reports

Tried below before Hon. Winchester Kelso. The opinion summarizes the facts of the case, but as the evidence is circumstantial and the case one of importance and more than usually interesting the Reporter considers it proper to give the evidence in full as it is set forth in the record. It is as follows: Tom Hawkins testified as follows, to-wit: I live in San Saba County, Texas. Have lived there since 1874. I knew the Williamson family who lived in San Saba County, Texas.

Tried below before Hon. T. H. Conner. The conviction is of murder in the first degree, with the punishment assessed at death.

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

<p>1. Verdict—Mode of Arriving at.—Where, in determining the punishment to he assessed, the jury agree that each juror shall state the period of imprisonment he desires to assess, and that the several periods thus stated shall he added together and the product divided hy twelve, and that the quotient shall he the punishment, the verdict is illegal. But if it he not agreed by the jury that the jurors shall abide by such quotient before the same is so ascertained, but the same is agreed to after it has been so ascertained, the verdict is not thereby vitiated. See the opinion for an illustration of the rules above stated. Hurt, J., dissenting as to the facts.</p> <p>2. Same—Motion for New Trial.—In a contest over matters of fact involved in a motion for new trial, the trial court shall, by affidavits or otherwise, hear evidence and determine the issue. In such case the decision of the trial court will not be revised on appeal unless manifestly wrong. ■</p> <p>3. Postponement—New Trial.—See the opinion for absent testimony held to be not probably true when considered in connection with the evidence adduced on the trial, wherefore the refusal of defendant’s application for a postponement based thereon did not constitute good ground for a new trial.</p>

Tried below before Hon,. R. E. Burke. This conviction is for murder in the second degree with the punishment assessed at confinement in the penitentiary for the term of five years. The opinion sufficiently states the case.

<p>Habeas Corpus—Murder—Evidence.—See the statement of the case for evidence held, insufficient as “proof evident” of murder in the first degree, wherefore the applicant is entitled to bail..</p>

<p>Appeal from the District Court of Dallas. Tried below before Hon. Chas. Fred. Tucker.</p> <p>The opinion states the case as to the question decided.</p>

<p>1. Theft—Charge of the Court.—Where the evidence requires it, as it did in this case, the court should explain to the jury the distinction between trespass and theft, and should instruct the jury that if the defendant took the property with the intent at the time of appropriating it temporarily, but not permanently, they should acquit him.</p> <p>2. Same—Voluntary Return of Property.—When the evidence does not, as it did not in this case, present the issue of a voluntary return of the property, it is error for the court to submit and instruct upon such issue.</p>

Tried below before Hon. G. A. Brown. The following is the evidence in the case in full, as contained in the statement of facts in the record: Witness Wright testified, that he knew the defendant J. T. Morris, .and pointed him out in court. That he first saw him in the Greer County Wagon Yard in Vernon, Texas, about the middle of April last. Did not know either J. M. Moss or W. E. Roberts. Defendant brought a team of horses and wagon and a dun pony to the wagon yard.

<p>Appeal from the County Court of Mitchell. Tried below before Hon. C. H. Earnest, County Judge.</p> <p>The opinion states the case.</p>

Tried below before Hon. W. A. Blackburn. On the evening of June 4, 1890, in Burnet County, the defendant shot and killed J. B. Phillips. The place of the homicide was near defendant’s pasture fence. The evidence makes it certain that the defendant laid in wait for the deceased and shot him without giving him any warning whatever. The defense is shown by the testimony of defendant’s wife, which is as follows: I am the wife of the defendant. J. B. Phillips married my sister.

Tried below before Hon. R. W. Hudson. This conviction is for murder in the second degree, with the punishment assessed at confinement in the penitentiary for a term of fifty years. The evidence in full is as follows: John S. Thomas, first witness for the State, testified as follows: My name is John S. Thomas. I reside at Bigfoot, Frio County, Texas, and am justice of the peace of Precinct Ho. 2.

Habeas corpus on appeal from an order in chambers issued by Hon. W. W. Wallace, Judge of the Forty-seventh Judicial District. Applicant was charged with having murdered John Seela, in Potter County, on June 11, 1891. An examining trial was held before a justice of the peace of said county, and applicant was committed to jail without bail. He applied for and obtained the writ of habeas corpus, and upon a hearing thereof was remanded to custody without bail.

Tried below before Hon. C. L. Cleveland. This conviction is for murder in the second degree with the penalty-assessed at twenty-five years confinement in the penitentiary. The opinion states the case with reference to the question decided.

Tried below before Hon. T. M. Paschal. Conviction for the theft of a horse, the property of Hensley Barnett. Punishment assessed at six years confinement in the penitentiary. The opinion sufficiently states the case.

<p>1. Continuance—New Trial.—To constitute the refusal of an application for a continuance because of absent testimony, and the refusal of a new trial because of such ruling, reversible error on appeal, it must appear that the absent testimony was material and probably true, and it must also reasonably appear that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted. And if substantially the same testimony was before the jury as that which was absent, the refusal of the application for continuance will not be revised.</p> <p>2. Bill of Exception.—A bill of exception to the ruling of the trial court admitting evidence over defendant’s objection must state the objection made to the evidence, or the ruling will not he considered on appeal.</p> <p>3. Verdict.—To ascertain the punishment to be assessed, the jury agreed that each juror should state the number of years he was in favor of assessing, and the several numbers thus stated should be added together and the aggregate sum should be divided by twelve and that the quotient should he the term assessed by the verdict. This was done, and the quotient was five years and seven months. This result was not agreed to by the jury, and after some discussion the jury fixed the punishment at five years confinement in the penitentiary and so returned their verdict. Held, that the verdict was not vitiated.</p>

Tried below before Hon. G. H. Noonan. This is a second appeal. On the former appeal the conviction was set aside for errors in the charge of the court. The case on the former appeal has not been reported, but will be found published in 13 Southwestern Reporter, page 650.

Tried below before. Hon. J. C. Russell. This conviction is for murder in the first degree with the penalty assessed of confinement in the penitentiary for life. Alejandro Vidaurri was the name of the party murdered. There was a former conviction in the case, from which an appeal was prosecuted, and the judgment of conviction was reversed and the cause remanded for a new trial. 28 Texas Court of Appeals, 130.

Tried below before Hon. W. G. W. Jowers, County Judge. The prosecution was for a violation of the Sunday law. The penalty assessed was a joint fine of $25 against appellants Whitcomb and Maier.

<p>Appeal from the District Court of Shelby. Tried below before Hon. R. S. Bryarly, Special District Judge.</p> <p>Appellant was indicted, tried, and convicted for an aggravated assault, and was fined $25 and costs.</p> <p>The opinion .of the court sufficiently states the facts involved in the ruling.</p>

<p>Joint Judgment on Joint Prosecution.—It is well settled that a verdict and judgment against joint offenders on a joint trial, to be valid, must assess a separate penalty against each offender. Approving Medis v. The State, 27 Texas Court of Appeals, 194, and authorities there cited on this point.</p>

<p>Appeal from the District Court of Limestone. Tried below before Hon. Rufus Hardy.</p> <p>Appellant was convicted of murder in the first degree. The record contains no statement of facts and no bill of exceptions.</p>

Tried below before Hon. H. Clay Pleasants. This appeal is from a conviction for theft of a cow, with punishment assessed at two years in the penitentiary. The opinion of the court sufficiently discloses the facts. Upon circumstantial evidence the court instructed the jury in the third paragraph of its charge as follows: “The law recognizes two species of evidence—direct and circumstantial.

Tried below before Hon. G. W. G. Jowers, County Judge. Appellant was indicted for unlawfully renting to John Hanna and Floyd Mergenthal certain rooms to be used for gaming purposes. At the trial he was found guilty and his punishment assessed at a fine of $50.

Tried below before Hon. W. H. Burkhart. Appellant was indicted June 19, 1891, for the murder of one Grant Hash, alleged to have been committed by him on or about the 20th day of September, 1890. On the 22d day of June, 1891, he applied for and obtained a writ of habeas corpus from Hon. W. H. Burkhart, judge of the Twenty-third Judicial District, during the June term of the District Court of Brazoria County, then in session.

Tried below before Hon. W. A. Blackburn. This appeal is from a conviction in the court below for perjury, and punishment assessed at five years in the penitentiary.

Tried below before Hon. Chas. Fred. Tucker. Appellant was indicted for the murder of one A. F. Jackson, by shooting him with a pistol. The result of the trial was appellant’s conviction of murder in the first degree, with the penalty assessed at a life term in the penitentiary. The rulings of the court on this appeal do not require a detailed statement of all the facts proved at the trial. The record is most voluminous, some forty-five witnesses having testified in the case.

Tried below before Hon. George McCormick. Appellant was prosecuted for theft of a horse, and appeals from a judgment of conviction with penalty assessed at five years in the penitentiary. A statement of facts is not necessary to an understanding of the rulings of the court.

Tried below before Hon. G. H. Noonan. Appellant was indicted for perjury. At his trial he was convicted and his punishment assessed at six years confinement in the penitentiary. The rulings of the court on this appeal do not call for a statement of the evidence.

Tried below before Hon. C. L. Cleveland. This was a conviction for murder in the second degree, under an indictment charging appellant with the killing of one Thomas R. Sorsby, by shooting him with a pistol. It is unnecessary to give a detailed statement of the facts in the case, since the facts are not essential in- elucidating the rulings of the court.

Tried below before Hon. G. A. Brown. Appellant was indicted for the murder of one Scott Hogg. At his trial he was convicted of murder in the first- degree—the punishment being assessed at confinement in the penitentiary for life. The statement of facts not having been filed in time, as required by law, was held by the court not entitled to consideration.

Tried below before Hon. W. A. Blackburn. This is a second appeal in this case. The former appeal was from a judgment of conviction for murder in the second degree, the penalty being assessed at seven years confinement in the penitentiary. Thompson v. The State, 29 Texas Court of Appeals, 208. This appeal presents a conviction for murder in the second degree, with the punishment assessed at twenty years in the penitentiary.

Tried below before Hon. W. M. Allison. Appellant was convicted on an indictment charging him with theft of a horse, and given five years in the penitentiary as his punishment. The evidence as to his connection with the fraudulent taking of the horse was entirely circumstantial, and the State relied for a conviction mainly upon the possession of the animal recently after- it was stolen.

Tried below before Hon. G. H. Noonan. Appellant was indicted for the theft of a dog of the alleged value of $50. At the trial he was convicted, and his punishment assessed at confinement in the penitentiary for two years. It was shown by the evidence that the dog wras a fine double-nosed pointer dog, ten or eleven months old, Avell trained, was valuable as a hunting dog, and that the owner had been offered and could have sold it at any time for $50.

Tried below before Hon. J. M. Hall. This was an original application to the Court of Appeals for the writ of hcibeas corpus, appellant being a convict in the penitentiary serving two terms under cumulative punishments. The opinion states the whole case.

Tried below before Hon. H. Clay Pleasants. The conviction was for theft of a cow, the punishment assessed being two years in the penitentiary. A statement of the facts is unnecessary to elucidate the rulings of the court in the opinion rendered.

Tried below before Hon. W. H. Ford. Appellant was convicted for .an assault with intent to murder, and given two years in the penitentiary as his punishment. The facts in the case are sufficiently stated in the opinion.

<p>Appeal from the County Court of Kaufman. Tried below before Hon. John Vesey.</p> <p>Indictment and conviction for unlawfully carrying a pistol.</p>

Tried below before Hon. J. M. Hall. This appeal is from a conviction of arson, the punishment assessed being five years in the penitentiary. The opinion sufficiently states the facts.

Tried below before Hon. W. A. Blackburn. Appellant was jointly indicted with one S. C. Walker for the murder of John Mallory, which crime was alleged to have been committed on December 23, 1890. His codefendant S. C. Walker had been previously tried and convicted of murder in the second degree, and punishment assessed at ten years in the penitentiary.

Tried below before Hon. John L. Sheppard. Appellant was indicted in the District Court of Bowie County for the murder of Mike Hackett, which murder was alleged to have been committed on or about the 9th day of June, 1890.

Tried below before Hon. George E. Miller. This appeal is from a judgment of conviction for murder in the first degree, in which the punishment was assessed at death. The murdered woman, Josie Brotherton, was the divorced wife of the defendant. The evidence, as contained in the statement of facts, is very voluminous, and is wholly circumstantial.

Tried below before Hon. John Vesey, County Judge. Appellant was convicted of willfully obstructing a public road, and fined in the sum of $10. The facts of. the case are sufficiently stated in the opinion of the court.

Tried below before Hon. J. V. Cockrell. Appellant was indicted for the theft of one head of cattle, and upon his trial was convicted, his punishment being assessed at three years and six months in the State penitentiary. The opinion of the court sufficiently states the facts necessary to an understanding of the rulings.

Tried below before Hon. B. B. Beaird, County Judge. Appellant was convicted under an information charging him with an aggravated assault committed with a pistol, “a deadly weapon,” and his punishment assessed at a fine of $25. It is unnecessary to state the facts of the case.

<p>1. Theft—Swindling—Distinction Between.—The distinction between theft and swindling is, that if the owner is induced to part with his property finally, or to convey title thereto, the crime is swindling. But if the possession of the property only is obtained, and in such manner as is not adequate to pass the title thereto, but only its custody for a time, and thereafter is converted by the taker in persuance of his original design, it is theft.</p> <p>2. Same.—See facts stated which constituted a case of swindling, and not theft, as charged in the indictment.</p>

Tried below before Hon. Anson Eainey. Appellant was indicted for the theft of $70 in money, same being in gold, paper, and silver money; and upon her trial was convicted, her punishment being assessed at two years in the penitentiary. The facts are sufficiently stated in the opinion.

Tried below before Hon. A. L. McLaine. Appellant was indicted for and convicted of forgery, the punishment denounced against him by the verdict and judgment being two years in the penitentiary.

Tried below before Hon. A. H. Cooper, County Judge. Appellant was tried under an indictment which charged him with unlawfully and knowingly selling intoxicating liquor to a minor without the written consent of the parent, guardian, or any one standing in the place of such parent or guardian of said minor, was convicted and his punishment assessed at a fine of $25. The opinion sufficiently states the facts.

<p>1. Theft—Accomplice Testimony—Charge of Court.—Where on a trial for the theft of a horse, in which the principal State’s evidence consisted in the testimony of an accomplice, and the court instructed the jury, “If you should believe from the evidence that the witness Jim Camp is an accomplice, as an 1 accomplice ’ is defined herein, in that event before you can convict defendant you must believe that said witness has been corroborated; and if the facts and circumstances in evidence taken together leave you with reasonable doubt as to the guilt of the defendant, you will return a verdict of guilty; otherwise, not guilty;” held, that the latter portion of said charge is fundamentally-erroneous.</p> <p>2. Same—Possession of Recently Stolen Property.—Where the accomplice’s testimony disclosed that he did not see the stolen horse with the bunch of horses driven by defendant and others; did not see defendant brand any of the alleged owner’s horses, and never heard defendant claim said horses, held, that under such state of facts the court should have given the special requested instruction asked in behalf of defendant, as follows: “Before the jury are authorized to convict defendant of theft of property recently stolen, from the fact that the stolen property was in defendant’s possession (if it was ever in his possession), the possession must be recent, it must be personal, and there.must be a conscious assertion of claim to said property; if you have a reasonable doubt of this, you will acquit the defendant.”</p>

<p>1. Theft—Evidence—Recorded Brand.—A brand for animals in order to be properly recorded, and in order that the record of the same may be admissible as evidence, must “designate the part of the animal upon which the same is to be placed.” Penal Code, article 783. Where the record of a brand designated that the same should be placed on the left or right side of the animal, held, that this was a sufficient designation of the part of the animal upon which it was to be placed.</p> <p>2. Circumstantial Evidence — Charge of the Court. —■ The stolen animal, while running in its accustomed range, strayed into appellant’s pasture, the fence of which was not cattle proof. Defendant knew the animal and also the brand. After the animal had been in his pasture about three months, it was driven up with other cattle defendant intended to ship and placed in his pen. The next morning one G., who had staid at defendant’s house the night before, and was a stranger in the community, went to the pen with defendant, sold the cattle to him for §37, executed a bill of sale for same, and changed the marks and brands of same so as to obliterate the old ones. Held, that the court would not presume that there had been a previous taking by either of the parties, and that the conviction did not depend wholly upon circumstantial evidence, and that the court did not err in refusing to charge the law applicable to such evidence.</p>

<p>Appeal from the County Court of Falls. Tried below before Hon. S. E. Scott, County Judge.</p> <p>Appellant was indicted, tried, and convicted for betting at a gaming table and bank, kept for purposes of gaming. His punishment was assessed at a pecuniary fine of $10. The Assistant Attorney-General moved to dismiss the appeal upon.the ground that the judgment appealed from was not a final judgment. This motion is the subject discussed in the opinion, and the motion was overruled. Subsequently the judgment was affirmed without a written opinion.</p>

<p>1. Forgery and Uttering Forged Instrument—Former Acquittal.—Where defendant was indicted for the passing or uttering of a forged instrument, and he pleaded former acquittal, in that he had been indicted, tried, and previously acquitted for forging the same instrument, held, -that the plea was properly overruled because our statutes (Penal Code, articles 431, 442, and 443) make forgery and the passing and uttering of a forged instrument distinct crimes with different punishments, and an acquittal of the former is no bar to a conviction for the latter.</p> <p>2. Same—Autrefois Acquit.—In autrefois acquit it is necessary that the prisoner could have been convicted on the first indictment of the offense charged in the second; and the rule that a party can be prosecuted but once for the same transaction can not obtain in case of forgery and the passing of forged instruments, because they are not one and the same transaction, since the instrument must first be forged before it can be uttered and passed.</p> <p>3. Same—Filling up Over Signature.—Article 440, Penal Code, declares it to be forgery to fill up a blank instrument over a genuine signature. See a case stated in the opinion, wherein it appeared that an employer of defendant signed a blank check and gave it to him for the purpose of filling out the same with the name of a party to be employed by defendant to do certain work for the employer, after said work should have been done by said third party, which draft defendant filled out for a large sum in his own name, presented it at the bank, and deposited the amount to his own credit. Held, that this was forgery.</p> <p>4. Conflicting Evidence.—Where evidence as to the guilt or innocence of a defendant is directly conflicting, the court on appeal will not interfere with the verdict and judgment.</p>

<p>Appeal from the County Court of Delta. Tried below before Hon. S. M. Grant, County Judge.</p> <p>Appellant was tried under information, and convicted for an aggravated assault committed by him at a place where people were assembled for religious worship. The assault was committed by him upon the minister who was conducting the religious services.</p> <p>The opinion of the court sufficiently states the facts necessary to an understanding of the rulings.</p>

<p>1. Murder by Poison — Declarations of Injured Person as Evidence,— Where the indictment charged the defendant with intent to murder two persons by mingling poison in coffee, and the evidence showed that on the evening after the burial of E., one of the poisoned parties, H. P., the other party, had a severe fit, and as soon as he had recovered sufficiently to speak he said, “Go for the doctor, quick! I have taken another cup of that coffee, and it is about to kill me!” held, over objection of defendant, that the declarations were competent and admissible as res gestee.</p> <p>2. Same—Verdict. —Where, on a trial for murder by poison, the verdict of the jury was, “We, the jury, find the defendant guilty and assess his punishment at confinement in the penitentiary for life,” held, that the verdict was fatally defective and void under the provisions of article 607 of the Penal Code, which requires that if the jury shall find any person guilty of murder, they shall also find by their verdict whether it is of the first or second degree. This statute is mandatory, and the fact that the murder was committed by poison, which is murder per se in the first degree, does not change nor aifeet the statutory rule.</p> <p>3. Charge of Court.—See a charge of the court held erroneous, because it in effect requires the jury to believe from the evidence adduced that the defendant was innocent before they could acquit him, not giving him the presumption of innocence and reasonable doubt. And this error was not cured by the subsequent instruction in the usual form as to the presumption of innocence and reasonable doubt.</p>

<p>Appeal from the District Court of Rusk. Tried below before Hon. A. J. Booty.</p> <p>Appellant was tried and convicted for assault with intent to murder, his punishment being assessed at two years in the penitentiary. The rulings in the opinion do not require a statement of the evidence.</p>

<p>1. Aggravated Assault and Battery—Intent in.—In assault and battery and aggravated assault and battery the “intent to injure” is the principal ingredient of the offense.</p> <p>2. Same—Evidence—Defendant’s Right to Testify as to His Intent.— Where on trial of a defendant for aggravated assault and battery the defendant, who was a witness in his own behalf, was asked what was his object and purpose in striking the boy with a switch, which question and answer thereto were ruled out by the court as inadmissible, held, error. A party when examined as a witness may be asked as to his own motives and intentions when these are material. Such testimony is not incompetent because it comes from the mouth of the defendant.</p>

<p>1. Slander—Evidence. —In order to sustain a conviction for slander it is necessary that the alleged slanderous words should he proved substantially, at least, as charged. See a statement of facts in the opinion upon which it was held that the slander as alleged in the indictment was not sustained by the evidence adduced.</p> <p>2. Indictment—Innuendo.—In an indictment for slander where ambiguous language is sought to be explained by innuendo, it is necessary to prove the innuendo as substantially as the slanderous words its meaning was intended to convey.</p>

Tried below before Hon. J. W. Bolin, County Judge. Appellant was convicted for the theft of an overcoat of the value of $12, and his punishment was assessed at a fine of $5 and twelve hours imprisonment in the county jail. It is unnecessary to give the facts.

Tried below before Hon. B. McDaniel, County Judge. Appellant was tried on information for unlawfully pursuing the occupation of selling intoxicating liquors without obtaining a license therefor. At the trial he was convicted, and his punishment assessed at a fine of $475.

Tried below before Hon. W. J. Wingate. Appellant was tried and convicted in the court below of an assault with intent to murder one W. P. Cusenberry, and his punishment was assessed at two years imprisonment in the penitentiary. The statement of facts is too voluminous to be given in full.

<p>Appeal from the County Court of Guadalupe. Tried below before Hon. James Greenwood, County Judge.</p> <p>The facts of the case are stated in the opinion.</p>

Tried below before Hon. N. A. Stedman. Appellant was indicted for the theft of $20 in money, and at his trial was convicted, with a punishment assessed at two years in the penitentiary. The evidence in the case is as follows, to-wit: Joe Otero, a witness for the State, being sworn, says: My name is Joe Otero. The defendant’s name is Joseph Bufus Otero.

Tried below before Hon. L. W. Gooodrich. Appellant was tried upon an indictment charging him with the murder of one Charley Gaines, and on the trial was convicted of murder in the second degree, his punishment being assessed at fifteen years in the penitentiary. This is the second time this case has been appealed.

Tried below before Hon. J. W. Patterson. Appellant was convicted of assault with intent to murder, in the court below, his punishment being assessed at two years in the penitentiary. The opinion of the court sufficiently states the facts upon which the opinion is based.

<p>Appeal from the County Court of Hunt. Tried below before Hon. W. H. Ragsdale, County Judge. It is unnecessary to state the facts.</p>

Appeal front the County Court of Hopkins. Tried below before Hon. J. M. Morris, County Judge. Appellant was tried and convicted on an information charging him with the slander of one Ellen Thomas, by imputing to her a want of chastity. On the trial he was convicted of said offense and his fine assessed at $100. It is not necessary that the evidence adduced should be given in connection with the points decided.

Tried below before Hon. J. V. Cockrell. This appeal is from a judgment of conviction for murder in the first degree, wherein the punishment assessed was a life-term imprisonment in the penitentiary.

Tried below ' before Hon. C. L. Cleveland. This appeal is from a conviction of forgery, the punishment being assessed at three years confinement in the penitentiary. It is unnecessary to give a statement of the facts in the case.

Tried below before Hon. R. E. Burke. Appellants were jointly indicted, tried, and convicted in the court below, and a joint verdict and judgment was rendered against them of imprisonment in the penitentiary for a term of four years.

Tried below before Hon. W. M. Key. Appellant was tried and convicted for the robbery of one John F. Goetz, the property acquired by said robbery being 10 cents in the money of the United States of America, of the value of 10 cents. His punishment was assessed by the verdict and judgment at five years imprisonment in the penitentiary.

Tried below before Hon. George McCormick. Appellant was indicted, tried, and convicted for the murder of one Joseph Holek, his punishment being assessed at imprisonment for life in the penitentiary. At the first hearing on appeal the judgment of the court below was affirmed in an oral opinion, the court announcing- that the statement of facts could not be considered, because not properly authenticated by a valid certificate by the trial judge.

Tried below before Hon. W. A. Blackburn. This appeal is from a judgment of conviction for assault with intent to murder, wherein the punishment was assessed at three years confinement in the State penitentiary. The opinion sufficiently states the facts necessary to an understanding of the rulings.

<p>Appeal from the District Court of Hill. Tried below before Hon. J. M. Hall.</p> <p>Appellant was tried and convicted under an indictment charging him with burglary, and given as his punishment two years in the penitentiary. It is unnecessary to give the facts.</p>

Tried below before Hon. W. A. Blackburn. Appellant was convicted of rape in the court below, the punishment being assessed at sixteen years in the penitentiary. The opinion of the court sufficiently states the evidence.

Tried below before Hon. H. Teichmueller. Appellant was convicted in the court below for rape, and his punishment was assessed at five years in the penitentiary. The facts of the case are sufficiently stated in the opinion.

Tried below before Hon. B. McDaniel, County Judge. The opinion states all the essential facts with reference to the proceedings had on habeas corpus below.

Tried below before Hon. W. M. Key. On a trial under an indictment charging him with incest with his own daughter, appellant was convicted and his punishment assessed at six years in the penitentiary.

Tried below before Hon. J. M. Hall. Appellant was convicted of an assault with intent to commit rape, and his punishment assessed at two years in the penitentiary. The evidence is stated in the opinion of the court.

Tried below before Hon. E. W. Terhune. The appellant was indicted for the murder of one Austin Hardy, who was his brother-in-law. The only defense was insanity. At the trial he was convicted of murder in the first degree, and his punishment assessed by the verdict and judgment at death. All the essential facts are stated in the opinion.

Tried below before Hon. Chas. Fred. Tucker. Upon an indictment charging him with the rape of a female under the age of 10 years, appellant was tried, convicted, and his punishment assessed at death. S. T Dexter, for the State, testified: I am a married man, and was married on the 11th day of August, 1880, in Ellis County, Texas. My wife’s name was Clara Re why before I married her. I have a daughter named Roda May Dexter.

Tried below before Hon. J. W. Patterson. This appeal is from a judgment of conviction for incest, the punishment being assessed at five years imprisonment in the penitentiary. The party with whom the incestuous intercourse is alleged to have been had was defendant’s sister.

Tried below before Hon. J. M. Hall. This is an appeal from a judgment of conviction for assault with intent to murder, wherein the punishment was assessed at two years confinement in the penitentiary. The opinion of the court states all the essential facts adduced in evidence on the trial.

Tried below before Hon. William Kennedy. Appellant was convicted for the theft of one head of cattle, alleged to have been the property and taken from the possession of the Lexington Ranch Company, and his punishment was assessed at two years imprisonment in the penitentiary. It is unnecessary to give the evidence in the case, in view of the manner of its disposition on this appeal.

Tried below before Hon. J. M. Hall. This appeal is from a judgment of conviction for horse theft, wherein 1 the punishment was assessed at five years imprisonment in the penitentiary. All the essential facts are stated in the opinion.

Tried below before Hon. Robt. A. Greer, Special Judge. On an indictment charging appellant with the murder of one Ed Phillips, he was found guilty of murder in the first degree, with punishment assessed at imprisonment for life in the State penitentiary. The opinion of the court states all the material facts adduced in evidence on the trial.

Tried below before Hon. N. G. Kittrell. ' This is a second conviction of this appellant for infanticide. On her former conviction, which was reversed on appeal, she was found guilty of murder in the first degree and her punishment assessed at a life-term in the penitentiary. Harris v. The State, 28 Texas Court of Appeals, 308. The appeal here prosecuted is from a judgment of conviction for manslaughter, the punishment being assessed at two years in the penitentiary.

<p>Appeal from the District Court of Colorado. Tried below before Hon. George McCormick.</p>

Tried below before Hon. Felix J. McCord. Appellant was indicted for the murder of one H. L. Ingraham, and this appeal is from a conviction of murder in the second degree, with punishment assessed at eight years in the penitentiary.

This was an original application for habeas corpus, on the part of the grand jury of Bexar County, to be discharged from a judgment imposing upon them a fine and imprisonment for supposed contempt of court. The facts are sufficiently stated in the opinion.

Tried below before Hon. A. H. Cooper, County Judge. Appellant was prosecuted and convicted under an information charging him with fraudulently receiving and concealing one hundred pounds of pork, cut up into small pieces, of the value of $10, his punishment being assessed at a fine of $25 and imprisonment of five days in the county jail.

Tried below before Hon. Wm. M. Key. Appellant, was jointly indicted with one John Gibbs and one Andrew Sutton for the murder of Vitola Moleña, Sallie Moleña, and Mertez Moleña, by shooting them with guns and pistols. All the parties were placed jointly upon trial, but after the evidence for the State was adduced, on motion of the district attorney the prosecution as to John Gibbs was dismissed.

Tried below before Hon. W. D. Harris, County Judge. Appellant was convicted in the Justice Court for selling intoxicating liquors in the city of Port Worth between the hours of 4 o’clock p. m. Sunday and 12 o’clock Sunday night, on said Sunday, the 26th day of July, 1891; and refusing to pay the fine imposed by said justice, was arrested on a copias pro fine; whereupon he sued out a writ of habeas corpus before the county judge, upon the ground that the justice’s judgment of…

<p>Appeal from the District Court of Hopkins. Tried below before Hon. E. W. Terhune.</p> <p>This appeal is from a conviction for fraudulently receiving and concealing twenty-six head of sheep, knowing them to have been stolen; the punishment being assessed at two years in the penitentiary. It is not necessary to state the facts.</p>

Tried below before Hon. R. E. Burke. This appeal is from a judgment of conviction for theft of cattle, the punishment being assessed at two years confinement in the penitentiary. It is unnecessary to state the facts in full, as those necessary to an understanding of the opinion are stated in full therein.

Tried below before Hon. Anson Rainey. On a trial under an indictment charging him with the murder of one Major Shaw, appellant was convicted of murder in the first degree, the penalty being assessed at death. The defense was self-defense, based upon threats and reasonable appearances of danger.

Tried below before Hon. L. W. Goodrich. On a trial under an indictment which charged him with the murder of one Bd. Brandon, appellant was found guilty, and his punishment assessed at death. Bd. Brandon, the murdered man, was a bachelor, 50 years of age, who lived by himself some nine miles from Waco; he was a white man, defendant a negro. Defendant had been hired by Bd. Brandon for a day or so, with others, to pick cotton.

<p>1. Murder—Practice—Putting Witnesses Under the Rule.—Where a defendant on a trial for murder has invoked the rule as to all the witnesses, and it was ascertained, after the State’s most important witnesses had testified, that a State’s witness when put upon the stand had not heen put under the rule, but had been in the court room and had heard the other witnesses testify, whereupon the defendant objected to the introduction of said witness, but he was permitted by the court, over said objections, to testify, held, that inasmuch as it was made to appear that the fact that the witness was not put under the rule could not be imputed as an intentional wrong on the part of the district attorney, and that he was not to blame for it, and further, that inasmuch as this witness’ testimony was as to matters entirely different from the testimony of the witnesses whose testimony he had heard, the court did not abuse its discretion in allowing him to testify, and that it did not appear that defendant’s rights had in any manner been prejudiced thereby.</p> <p>2. Same—Admissibility of Witnesses not Under the Rule.—The admissibility of witnesses who have violated the rule, or who have not been placed under the rule, is within the sound discretion of the trial court. And such discretion will be presumed to be correctly exercised until the contrary appears. The rule is provided merely to prevent the testimony of one witness from influencing the testimony of another.</p> <p>3. Argument of Counsel—Abuse of.—Where, in the closing argument to the jury, the district attorney referred to certain evidence as. showing a reason for defendant's presence near the scene of the crime, and this was objected to by defendant, because the evidence referred to had been introduced by the State solely for the purpose of impeaching the testimony of defendant’s witnesses, at which the district attorney stated to the jury that he called their attention to this testimony exclusively for the purpose of impeaching defendant’s witnesses, held, that no error is made-to appear seriously prejudicing defendant’s rights.</p> <p>4. Evidence—Harmless Error.—Where the wife of the defendant, who was a witness on the stand, was asked by the prosecuting attorney if while her husband was confined in jail at Austin she had not written him a letter containing a certain statement, which she denied having made in said letter; and where, after a contention between the district attorney and counsel for defendant as to the admissibility of all testimony relating to the letter, the district attorney offered to withdraw his objections to defendant’s motion to exclude the testimony, which offer defendant’s counsel refused, held, that inasmuch as but for defendant’s counsel refusing to accede to the district attorney’s proposition to exclude the evidence the same would have been excluded, and inasmuch as it was in defendant’s power to produce the letter and refute the imputation that such a statement would be found in it, no error of a prejudicial nature to defendant is shown.</p>

Tried below before Hon. E. G. Bower, County Judge. Appellant was indicted for malicious mischief in willfully and wantonly wounding a cow; and at his trial was found guilty, and his punishment was assessed at a fine of $10. It is unnecessary to state the facts as shown in the record.

<p>Appeal from the District Court of Washington. Tried below before Hon. W. W. Searcy, Special Judge.</p> <p>On a trial under' an indictment for an assault with, intent to murder, appellant was found guilty of aggravated assault and his punishment assessed at a fine of $25. The facts necessary to an understanding of the rulings are sufficiently stated in the opinion.</p>

<p>1. Murder—Evidence—Declarations Made by Defendant when Ostensibly Under Arrest. — If a defendant who has committed a homicide be met by parties with guns who are hunting for him, and who do not intend to allow him to escape, but who have not arrested him, and defendant, who has no reasonable, grounds to believe himself under arrest, makes a voluntary statement to them as to the circumstances of the killing, such statements, he not believing himself in arrest, are admissible in evidence against him.</p> <p>2. Same—Cases Distinguished.—As to the above ruling, see a distinction made as to the facts in this case and the facts in the cases of Nolan v. The State, 8 Texas Court of Appeals, 595; Nolan v. The State, 9 Texas Court of Appeals, 425; and Grosse v. The State, 11 Texas Court of Appeals, 364.</p> <p>3. Declarations and Statements Res Gestae, when.—The declarations, admissions, and statements of a party, to be admissible as res gestee, should be contemporaneous with the transaction. If the declarations appear to spring out of the transaction, if they elucidate it, if they are voluntary and spontaneous, and made at a time so near to it as to preclude the idea of design, then they are to be regarded as contemporaneous.</p> <p>4. Same.—Where the rencounter which resulted in the killing occurred about 11 o’clock at night, and defendant immediately thereafter mounting his horse and riding rapidly away within ten minutes’ time reached his father’s house, and entering his mother’s room was found covered with blood from a wound in the left side of his head, which was still bleeding profusely, and he was nauseated, weak, and sick, and complained of his head, held, that his statements and declarations made to his mother while she was dressing his wound were admissible as part of the res gestee, and also as corroborative of his own .testimony, when proof had been introduced to impeach him.</p> <p>5. Same—Declarations when not Admissible as Explanatory.—Declarations and statements are not admissible in evidence to explain previous statements and declarations when such previous declarations and statements are full and complete and there is nothing left in doubt concerning them.</p>

<p>1. Theft—Indictment, Counts in—Election as Between Counts.—Where an indictment contained two counts,' one for theft and one for illegally marking and branding, and upon announcement of ready for trial, as well as after the State had introduced all of its evidence, defendant moved the court to require the prosecution to elect upon which of the two offenses charged a conviction would be claimed, which motions were both overruled. Held, that where the transaction is the same, a count for theft and one for illegal marking and branding may properly be inserted in the same bill, though the offenses be not the same; and that this being the rule with regard to the indictment, the court did not err in refusing to compel an election.</p> <p>3. Evidence of Other Crimes, when Admissible. — Evidence of other thefts are properly admissible to develop the transaction, to identify under certain circumstances the animal in question, to show fraudulent intent; but to serve any purpose the proof must show that the other animals or property were taken about the same time and place, or so near thereto as to constitute the same transaction. If the different offenses be so closely connected that proof of one necessarily discloses the other, the State would have the right to disclose both to the extent of their necessary connection.</p> <p>3. Same—Limitation and Restriction of, in the Charge of Court.—Evidence of distinct, separate crimes not so connected, or if connected which do not tend to serve one of the purposes above mentioned, is not competent evidence, and it will be error to receive it, though subsequently restricted and withdrawn by the charge from the jury.</p> <p>4. Placing Witnesses Under the Rule—Violation of.—Where on a trial for theft all the witnesses had been placed under the rule, the main point in the case being the identity of the animal in question, and it appeared that during a recess for dinner the chief deputy sheriff, who had the witnesses under the rule in his charge, as he was conducting them to their dinner pointed out the animal in question to the two principal State’s witnesses, and told them that it was the calf about ■which the trial was being had, and that it was the calf in question in the case; and upon these facts being developed the defendant moved the court to exclude the testimony of these ■witnesses, which motion was overruled and refused by the court, held, error, because the conduct of the chief deputy sheriff and of the witnesses was in open and most flagrant violation of articles 662, 665, and 666 of the Code of Criminal Procedure with regard to the placing of witnesses under the rule and their conduct while so held.</p>

<p>Appeal from the District Court of Bexar. Tried below before Hon. G. H. Noonan.</p> <p>This appeal is from a judgment of conviction for murder in the first degree, wherein the penalty was assessed at death. All of the facts in the case are copied in the opinion of the court.</p>

<p>1. Conspiracy, Liability of Parties to a.—If two or more persons agree to commit an offense, and from the nature of such offense and from the nature of such conspiracy it is reasonably probable that death would result to the victim, and death does result, though not intended, still all would be responsible for the homicide; but death not resulting, the parties would be held responsible for the actual results.</p> <p>2. Same — Liability of One Present Aiding by Acts or Encouraging by "Words or Gestures.—Where there is no conspiracy to commit an offense, still if an offense be committed by one and the accused was present and knew the intention of the other, and aids by acts or encourages by words or gestures the person engaged in the commission of the offense, he would be guilty of the offense committed. But he would be guilty only to the extent of his knowledge, or for the natural and reasonable consequences of the acts aided or encouraged by him.</p> <p>3. Fact Case. — See opinion for a statement of facts held wholly insufficient to sustain a verdict and judgment for an assault with intent to murder.</p>

<p>1. Murder—Service of Copy of Special Venire on Defendant.—Article 617 of the Code of Criminal Procedure provides, that “no defendant in a capital case shall he brought to trial until he has had one day’s service of the copy of the names of the persons summoned under a special venire facias except where he waives the right or is on bail, and when such defendant is on bail he shall not be brought to trial until after • one day from the-time the list of persons so summoned shall have been returned to , the clerk of the court in which said prosecution is pending,” etc. Held, that where the defendant was on bail and the sheriff returned his special venire on the morning of the 9th of March, and the clerk immediately made out and furnished a copy of said special venire to defendant, and that on the 10th of March, the defendant, in the meantime having been placed in jail, was also served with a copy of said special venire, and defendant was not put upon his trial until March 12, defendant had no ground to complain that the provisions of the statute had not been complied with.</p> <p>2. Special Venireman whose Marne is Omitted in Copy Served on Defendant.—Where the name of one of the special veniremen was omitted from the copy served upon the defendant, and the omission was discovered while the jury were being impanelled, and after all the names served on the defendant had been exhausted, the said omitted juryman was called and tendered to the defendant, who objected that his name was not upon the list served upon him; whereupon the court stood aside said juryman and ordered fifteen talesmen to complete the jury, and in summoning said talesmen the omitted juryman was one of the fifteen so summoned, and defendant moved that the talesman be' set aside on account of this fact, which motion was by the court refused, and it appearing that on his voir dire examination said juror could neither read nor write the English language, for which cause he was successfully challenged by the State, to all of which defendant excepted, held, no error in any of the rulings.</p> <p>3. Opinion Evidence.—Where on the redirect examination of the State’s witness, a brother of deceased, the prosecution was permitted, over objection of defendant, to ask the witness, “what was the reason that he held up the defendant and two others, and wanted to keep the drop on them, when he met them the night after the killing in the pasture?” To which the witness answered, also over objection of defendant, “Because I believed Campbell (defendant) had killed my brother, and belonged to the mob.” Held, the evidence was opinion evidence, and as such was illegal and inadmissible.</p> <p>4. Same. —Where the State over objection of defendant was permitted to prove by the father of deceased that on the night his son was killed, when he returned to his home and met his wife, “I told her to bear it the best she could; that Campbell and the boys had killed Ed., but were afraid to carry him off, and that Campbell would send word the next morning.” Held, opinion evidence, and clearly inadmissible, defendant not being present.</p> <p>5. Hearsay and Prejudicial Evidence.—It was error for the court to permit in evidence the declarations, statements, and advice which had been given the State’s witness, deceased’s father, relative to the necessity of concealing what his testimony would he until the final trial of defendant. Held, such evidence was purely hearsay, and calculated to prejudice defendant in the minds of the jury by impressing upon them the opinion of the district judge and district attorney as-to the importance of this testimony.</p> <p>6. Practice — Impairing Credibility of Witness. — After one of defendant’s witnesses had been sworn and placed under the rule, a witness for the State implicated him as one of the parties engaged in the killing of deceased; whereupon the district attorney caused a complaint to be made, under which said witness was arrested and placed in jail; and thereafter, when he was brought from jail and placed upon the stand to testify for defendant, the court, upon the request of the district attorney, cautioned the witness that he ‘ ‘ was charged with the same crime as defendant, his father, and that he might testify, but that if he testified to any fact in any way criminating himself it could be used against him.” All of which was done in the presence of and hearing of the jury. Held, that the witness not having been indicted was competent, and that the proceeding was error, and was certainly calculated to impair the witness’ credibility and standing before the jury.</p>

<p>Gaining—Indictment—Monte—Variance.—"Where an indictment charged defendant with 11 playing at cards in a public place, ’ ’ and the evidence showed that the playing and betting was done at a banking game of “monte,” held, that there was a fatal variance between the allegations and proof, there being a marked distinction between card playing and betting at gaming banks under our law.</p>

Tried below before Hon. N. G. Kittrell. Appellant was indicted for the murder of one Rufus Bashful, and at his trial was found guilty of murder in the first degree, his punishment being assessed at death.

Tried below before Hon. J. V. Cockrell. Under an indictment which charged him with the murder of W. J. Byrd appellant was convicted of manslaughter, and his punishment assessed at two years in the penitentiary. The facts immediately connected with the homicide are sufficiently stated in the opinion.

Tried below before Hon. C. L. Cleveland. This is an appeal from a judgment of conviction in the court below for horse theft, the punishment being assessed at five years confinement in the penitentiary. The facts are sufficiently stated in the opinion.

Tried below before Hon. W. M. Allison. Appellant was indicted, tried, and convicted for assault with intent to commit rape, his punishment being assessed at three years in the penitentiary.

Tried below before Hon. W. H. Burkhart. • This is an appeal from a judgment of conviction in the court below for murder in the first degree, wherein the punishment was assessed at a life-term in the penitentiary. It appeared that sometime before the killing the defendant and Ephraim Edwards, the deceased, had had their first difficulty about some gambling transactions.

Tried below before Hon. M. J. Hickey, County Judge. Appellant was tried and convicted upon an information charging him with selling a bottle of Florida Water on Sunday, contrary to the statute, article 186. At the trial he was found guilty, and his punish-, ment assessed at a fine of $20. All the material facts are stated in the opinion.

Tried below before Hon. J. V. Cockrell. Appellant was tried and convicted in the court below for the theft of one head of cattle, and his punishment assessed at four years in the penitentiary. The facts are sufficiently stated in the opinion.

<p>Appeal from the County Court of Waller. Tried below before Hon. A. G. Lipscomb, County Judge.</p> <p>Appellant was convicted under an information attempting to charge him with riot, and was punished by a fine of $300 assessed against him. It is unnecessary to state the facts in the case.</p>

Tried below before Hon. G. H. Noonan. Appellant was indicted for embezzlement, and upon his trial was convicted, and his punishment assessed at four years in the penitentiary. A detailed statement of the evidence adduced on the trial is not called for by the rulings announced in the opinion.

Tried below before Hon. J. C. Russell. Appellant was indicted for assault with intent to murder, and her punishment assessed at two years confinement in the penitentiary. The facts are sufficiently stated in the opinion.

Tried below before Hon. Hugh L. White, County Judge. Appellant was convicted in the court below for a disturbance of religious worship, and fined in the sum of $5. And he attempted to appeal on a recognizance which was held fatally defective.

Tried below before Hon. Anson Rainey. Appellant was indicted for the murder of one J. E. Season, and at his trial was convicted of murder in the second degree, his punishment being assessed at eighteen years in the penitentiary. The material facts in the case are sufficiently stated in the opinion of the court.

Tried below before Hon. E. D. McClellan. Appellant was indicted for the murder of one William Messick, and at his trial was found guilty of murder in the second degree, with the punishment assessed at five years confinement in the State penitentiary. The facts immediately surrounding the homicide are stated by the witnesses who saw it as follows: Dr. Williams testified: I spoke to Ward and rode off. Messick immediately spoke to Ward.

Tried below before Hon. W. J. Wingate. This is an appeal from a conviction in the court below on an indictment for perjury, wherein the punishment was assessed at confinement in the penitentiary for five years.

Tried below before Hon. W. R. Hayes, County Judge. Appellant was convicted, under an indictment charging her, in four separate counts, with keeping a -disorderly house; but in neither of which was she charged with being the “owner,” “tenant,” or “lessee” of the house. At the trial she was convicted, her punishment being assessed at a fine of $200.

<p>■ Appeal from the Criminal District Court of Harris. Tried below before Hon. C. L. Cleveland.</p> <p>Appellant was convicted in the court below for incest with his stepdaughter, and his punishment assessed at seven years in the penitentiary. A detailed statement of the facts would be unnecessary to further elucidate the rulings stated in the opinion.</p>

Tried below before Hon. John H. Rice, County Judge. Appellant was prosecuted in the court below by indictment brought under provisions of article 470 of the Penal Code, for selling 100 bales of falsely packed cotton, in which there had been placed and was concealed a large quantity of dirt, etc., and which sale so made by him was with intent to defraud. At his trial he was found guilty, and the punishment assessed at a fine of $110.34.

Tried below before Hon. George McCormick. Appellant was jointly indicted with J. N. Blain and Otho Askey for the murder of G. C. Barber, and upon his motion a severance was had and he was tried alone. The trial resulted in his conviction of murder in the second degree, the punishment being assessed at five years in the penitentiary. The essential facts of the case are sufficiently stated in the opinion of the court.